Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
THE HOME DEPOT, INC., AS AMENDED
(Originally incorporated on June 29, 1978 under the name M. B. Associates
Incorporated)
FIRST: The name of the corporation (which is herein referred to as the
"Corporation") is The Home Depot, Inc.
SECOND: The address of the Corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, in the
County of New Castle. The name of its registered agent at that address is
The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware.
Without limiting in any manner the scope and generality of the
foregoing, it is hereby provided that the Corporation shall have the
following purposes, objects and powers:
To manufacture, purchase or otherwise acquire, invest in, own, pledge,
sell, assign and transfer or otherwise dispose of, trade, deal in and deal
with, any and all goods, wares, merchandise and personal property
relating to home improvement services, materials, products, devices,
manuals, audio-visual aids, tools and any and all products related thereto
of every kind and description.
To do all and everything necessary, suitable and proper for the
accomplishment of any of the purposes or the attainment of any of the
objects or the furtherance of any of the powers herein before set forth,
either alone or in association with other corporations, firms or
individuals, and to do every other act or acts, thing or things incidental
to or growing out of or connected with the aforesaid powers or any part or
parts thereof, including, without limitation, the acquisition and operation
of businesses exclusively or partially engaged in providing home
improvement services, materials, products, devices, manuals, audio-visual
aids, tools, and related products or services to consumers.
The business or purpose of the Corporation is from time to time to do
any one or more of the acts and things herein before set forth, and it
shall have power to conduct and carry on said business, or any part
thereof, and to have one or more offices, and to exercise any or all of its
corporate powers and rights, in the State of Delaware, and in the various
other states, territories, colonies and dependencies of the United States,
in the District of Columbia, and in all or any foreign countries.
The enumeration herein of the objects and purposes of the
Corporation shall be construed as powers as well as objects and purposes
and shall not be deemed to exclude by inference any powers, objects or
purposes which the Corporation is empowered to exercise, whether expressly
by force of the laws of the State of Delaware now or hereafter in effect,
or impliedly by the reasonable construction of said laws.
FOURTH: The total number of shares of stock which the Corporation will
have authority to issue is 5,000,000,000, all of which shall be shares of
Common Stock of the par value of five cents ($.05) each.
FIFTH: The name and mailing address of the sole incorporator is as
follows:
Kenneth G. Langone
c/o INVEMED ASSOCIATES INCORPORATED
375 Park Avenue
New York. New York 10022
SIXTH: 1. The business and affairs of the Corporation shall be managed
by or under the direction of a Board of Directors consisting of not less
than three nor more than fifteen directors, the exact number of directors
to be determined from time to time by resolution adopted by affirmative
vote of a majority of the entire Board of Directors. The directors shall
be divided into three classes, designated Class I, Class II and Class III.
Each class shall consist, as nearly as may be possible, of one-third of the
total number of directors constituting the entire Board of Directors. At
the meeting of stockholders at which this Article is adopted,Class I, II
and III directors shall be elected to serve until the 1987, 1986 and 1985
annual meetings of stockholders, respectively.
2. At each annual meeting of the stockholders beginning with
1985, successors to the class of directors whose term expires at that
annual meeting shall be elected for a three-year term. If the number of
directors is changed, any increase or decrease shall be apportioned among
the classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional director of any class elected
to fill a vacancy resulting from an increase in such class shall hold
office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten
the term of any incumbent director. A director shall hold office until the
annual meeting for the year in which his term expires and until his
successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office.
Any vacancy on the Board of Directors that results from an increase in the
number of directors may be filled by a majority of the Board of Directors
then in office, and any other vacancy occurring in the Board of Directors
may be filled by a majority of the directors then in office, although less
than a quorum, or by a sole remaining director. Any director elected to
fill a vacancy not resulting from an increase in the number of directors
shall have the same remaining term as that of his predecessor.
3. No person (other than a person nominated by or on behalf of
the Board of Directors) shall be eligible for election as a director at any
annual or special meeting of stockholders unless a written request that his
or her name be placed in nomination is received from a stockholder of
record by the Secretary of the Corporation not less than 30 days prior to
the date fixed for the meeting, together with the written consent of such
person to serve as a director.
4. Except to the extent prohibited by law, the Board of
Directors shall have the right (which, to the extent exercised, shall be
exclusive) to establish the rights, powers, duties, rules and procedures
that from time to time shall govern the Board of Directors and each of its
members, including without limitation the vote required for any action by
the Board of Directors, the determination by resolution of the Board of
Directors of the officers of the Corporation and their respective titles
and duties, the determination by resolution of the Board of Directors of
the manner of choosing the officers of the Corporation and the terms of
their respective offices, the determination by resolution of the Board of
Directors of the terms and conditions under which the Corporation shall
exercise the powers granted to it as of January I, 1984 by Section 145 of
the Delaware General Corporation Law, as such powers may exist from time to
time after January 1, 1984, and that from time to time shall affect the
directors' power otherwise to manage the business and affairs of the
Corporation; and, notwithstanding any other provision of this Certificate
of Incorporation to the contrary, no by-law shall be adopted by
stockholders which shall interpret or qualify, or impair or impede the
implementation of, the foregoing. Any inconsistency between, on the one
side, a document which implements the provisions of this paragraph 4 and
sets forth the rights, powers, duties, rules and/or procedures governing
the Board of Directors and, on the other side, any by-law or other
corporate document shall be construed in favor of the document setting
forth such rights, powers, duties, rules and/or procedures.
5. No action shall be taken by stockholders of the
Corporation except at an annual or special meeting of the stockholders of
the Corporation. Except to the extent, if any, otherwise required by law, a
special meeting of the stockholders of the Corporation may be called only
by the Chairman of the Board of Directors, the President or the Board of
Directors of the Corporation.
6. No amendment to the Certificate of Incorporation of the
Corporation shall amend, alter, change or repeal any of the provisions of
this Article SIXTH, unless the amendment effecting such amendment,
alteration, change or repeal shall receive the affirmative vote of the
holders of eighty percent (80%) of all shares of stock of the Corporation
entitled to vote in the election of directors, considered for the purposes
of this Article SIXTH as one class; provided that this paragraph 6 shall
not apply to, and such eighty percent (80%) vote or consent shall not be
required for, any amendment, alteration, change or repeal unanimously
recommended to the stockholders by the Board of Directors of the
Corporation if each of such directors is a person who would be eligible to
serve as a continuing director as hereinafter defined in paragraph 7 of
this Article SIXTH.
7. As used in paragraph 6 of this Article SIXTH, (a) the
term "continuing director" shall mean either a person who was a member of
the Board of Directors of the Corporation elected by the stockholders of
the Corporation prior to the time that an "other entity" acquired in excess
of ten percent (10%) of the stock of the Corporation entitled to vote in
the election of directors, or a person recommended to succeed any
continuing director by a majority of continuing directors; (b) the term
"other entity" shall include any corporation, person or other entity (other
than the Corporation, any of its subsidiaries or a trustee holding stock
for the benefit of employees of the Corporation or its subsidiaries, or any
one of them, pursuant to one or more employee benefit plans or
arrangements) and any other entity with which it or its "affiliate" or
"associate" (as defined below) has any agreement, arrangement or
understanding, directly or indirectly, for the purpose of acquiring,
holding, voting or disposing of stock of the Corporation, or which is its
"affiliate" or "associate" as those terms are defined in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934 as
in effect on January 1, 1984, together with the successors and assigns of
such persons in any transaction or series of transactions not involving a
"public offering" of the Corporation's stock within the meaning of the
Securities Act of 1933, provided that "other entity" does not include any
one or any group of more than one of the persons who were directors of the
Corporation as of January 1, 1984, or any one or any group of more than one
continuing director (as defined above); (c) an other entity (as defined
above) shall be deemed to be the beneficial owner of any shares of stock of
the Corporation which such other entity has the right to acquire pursuant
to any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise; and (d) the outstanding shares of any class of stock
of the Corporation shall include shares deemed owned through application of
clause (c) above but shall not include any other shares which may be
issuable pursuant to any agreement, or upon exercise of conversion rights,
warrants or options, or otherwise.
8. A majority of the continuing directors shall have the
power and duty to determine for the purposes of this Article SIXTH on the
basis of information known to them whether (a) such other entity
beneficially owns more than ten percent (10%) of the outstanding shares of
stock of the Corporation entitled to vote in the election of directors, (b)
an other entity is an "affiliate" or "associate" (as defined above) of
another, or (c) an other entity has an agreement, arrangement or
understanding with another.
SEVENTH: The Board of Directors shall have power to make, alter or
repeal the by-laws of the Corporation, except as may otherwise be
provided in the by-laws.
EIGHTH: 1. The affirmative vote or, if permitted under this
Certificate of Incorporation, consent of the holders of eighty percent
(80%) of all shares of the Corporation entitled to vote in the election of
directors, considered for the purposes of this Article EIGHTH as one class,
shall be required for the adoption or authorization of (i) a business
combination (as hereinafter defined) with any other entity (as hereinafter
defined) if, as of the record date for the determination of stockholders
entitled to notice thereof and to vote thereon, or, if so permitted,
consent thereto, such other entity is the beneficial owner, directly or
indirectly, of more than twenty percent (20%) of the outstanding shares of
stock of the Corporation entitled to vote in the election of directors,
considered for the purposes of this Article EIGHTH as one class, or (ii) a
proposed dissolution of the Corporation or a proposed amendment of the
Certificate of Incorporation of the Corporation which would either change
the entitlement of the holders of shares of Common Stock of the Corporation
to vote in the election of directors or would authorize the Corporation to
issue either shares of capital stock (other than shares of its Common
Stock) or bonds, debentures or other obligations, which, if issued, would
or could be entitled to vote in the election of directors if, as of the
record date for the determination of stockholders entitled to notice of and
to vote on or, if so permitted, consent to such proposed dissolution or
such proposed amendment, an other entity (as hereinafter defined) is the
beneficial owner, directly or indirectly, of more than twenty percent (20%)
of the outstanding shares of stock of the Corporation entitled to vote in
the election of directors, considered for the purposes of this Article
EIGHTH as one class; provided that such eighty percent (80%) voting
requirement shall not be applicable to the adoption or authorization of a
business combination if:
(a) The cash, or fair market value of other consideration, to be
received per share by holders of shares of any class of capital stock of
the Corporation in such business combination bears the same or a greater
percentage relationship to the market price of such shares of capital stock
immediately prior to the announcement of such business combination as the
highest per share price (including brokerage commissions and/or soliciting
dealers' fees) which such other entity has theretofore paid for any of such
shares of capital stock already owned by it bears to the market price of
such shares of capital stock immediately prior to the commencement of
acquisition of such shares of capital stock by such other entity;
(b) The cash, or fair market value of other consideration, to be
received per share by holders of shares of any class of capital stock of
the Corporation in such business combination is not less than the highest
per share price (including brokerage commissions and/or soliciting dealers'
fees) paid by such other entity in acquiring any of its holdings of such
shares of capital stock;
(c) After such other entity has acquired such greater-than-
twenty percent (20%) interest and prior to the consummation of such
business combination: (i) such other entity shall have taken steps to
ensure that the Corporation's Board of Directors included- at all times
representation by continuing director(s) (as hereinafter defined)
proportionate to the stockholdings of the Corporation's stockholders not
affiliated with such other entity (with a continuing director to occupy any
resulting fractional board position); (ii) such other entity shall not have
acquired any newly issued shares of capital stock, directly or indirectly,
from the Corporation (except upon conversion of securities acquired by it
prior to obtaining such greater-than-twenty percent (20%) interest or as a
result of a pro rata stock dividend or stock split); and (iii) such other
entity shall not have acquired any additional shares of the Corporation's
outstanding capital stock or securities convertible into capital stock
except as a part of the transaction which results in such other entity
acquiring such greater-than- twenty percent (20%) interest; and
(d) Such other entity shall not have received the benefit,
directly or indirectly (except proportionately as a stockholder) of any
loans, advances, guarantees, pledges or other financial assistance or tax
credits provided by the Corporation.
The provisions of this Article EIGHTH shall also apply to a
business combination with any other entity which at any time has been the
beneficial owner, directly or indirectly, of more than twenty percent (20%)
of the outstanding shares of stock of the Corporation entitled to vote in
the election of directors, considered for the purpose of this Article
EIGHTH as one class, notwithstanding the fact that such other entity has
reduced its shareholdings below twenty percent (20%) if, as of the record
date for the determination of stockholders entitled to notice of and to
vote on or, if so permitted, consent to the business combination, such
other entity is an "affiliate" of the Corporation (as hereinafter defined).
2. As used in this Articl e EIGHTH, (a) the term "other
entity" shall include any corporation, person or other entity (other than
the Corporation, any of its subsidiaries or a trustee holding stock for the
benefit of employees of the Corporation or its subsidiaries or any one of
them, pursuant to one or more employee benefit plans or arrangements)and
any other entity with which it or its "affiliate" or "associate"(as defined
below) has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of
stock of the. Corporation, or which is its "affiliate" or "associate" as
those terms are defined in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934 as in effect on January 1, 1984,
together with the successors and assigns of such persons in any transaction
or series of transactions not involving a "public offering" of the
Corporation's stock within the meaning of the Securities Act of 1933,
provided that "other entity" does not include any one or any group of more
than one of the persons who were directors of the Corporation as of January
1, 1984, or any one or any group of more than one continuing director (as
defined below), (b) an other entity (as defined above) shall be deemed to
be the beneficial owner of any shares of stock of the Corporation which
such other entity has the right to acquire pursuant to any agreement, or
upon exercise of conversion rights, warrants or options, or otherwise; (c)
the outstanding shares of any class of stock of the Corporation shall
include shares deemed owned through application of clause (b) above but
shall not include any other shares which may be issuable pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise; (d) the term, "business combination" shall include any merger or
consolidation of the Corporation with or into any other corporation, or the
sale or lease of all or any substantial part of the assets of the
Corporation to, or any sale or lease to the Corporation or any subsidiary
thereof in exchange for securities of the Corporation of any assets (except
assets having an aggregate fair market value of less than $5,000,000) of,
any other entity; (e) the term "continuing director" shall mean either a
person who was a member of the Board of Directors of the Corporation
elected by the stockholders of the Corporation prior to the time that an
other entity acquired in excess of ten percent (10%) of the stock of the
Corporation entitled to vote in the election of directors, or a person
recommended to succeed any continuing director by a majority of continuing
directors; and (f) for the purposes of subparagraphs l(a) and (b) of this
Article EIGHTH the term "other consideration to be received" shall mean
capital stock of the Corporation retained by its stockholders (other than
such other entity) in the event of a business combination with such other
entity in which the Corporation is the surviving corporation.
3. A majority of the continuing directors shall have the
power and duty to determine for the purposes of this Article EIGHTH on the
basis of information known to them whether (a) such other entity
beneficially owns more than ten percent (10%) or twenty percent (20%) of
the outstanding shares of stock of the Corporation entitled to vote in the
election of directors, (b) an other entity is an "affiliate" or "associate"
(as defined above) of another, (c) an other entity has an agreement,
arrangement or understanding with another, or (d) the assets being acquired
by the Corporation, or any subsidiary thereof, have an aggregate fair
market value of less than $5,000,000.
4. No amendment to the Certificate of Incorporation of the
Corporation shall amend, alter, change or repeal any of the provisions of
this Article EIGHTH, unless the amendment effecting such amendment,
alteration, change or repeal shall receive the affirmative vote or consent
of the holders of eighty percent (80%) of all shares of stock of the
Corporation entitled to vote in the election of directors, considered for
the purposes of this Article EIGHTH as one class; provided that this
paragraph 4 shall not apply to, and such eighty percent (80%) vote or (if
permitted under this Certificate of Incorporation) consent shall not be
required for, any amendment, alteration, change or repeal unanimously
recommended to the stockholders by the Board of Directors of the
Corporation if all of such directors are persons who would be eligible to
serve as "continuing directors" within the meaning of paragraph 2 of this
Article EIGHTH.
5. Nothing contained in this Article EIGHTH shall be
construed to relieve any other entity from any fiduciary obligation imposed
by law.
6. The provisions of this Article EIGHTH shall not apply to:
(a) The adoption or authorization of any business combination
described in paragraph 1 of this Article EIGHTH if the Board of Directors
of the Corporation shall have approved by resolution a memorandum of
understanding with the other corporation, person or entity with whom such
business combination is proposed prior to the time that such other
corporation, person or entity shall have become a beneficial owner of five
percent (5%) or more of the outstanding shares of any class of capital
stock of the Corporation entitled to vote in the election of directors; or
(b) The adoption or authorization of any business combination,
proposed dissolution or proposed amendment described in paragraph 1 of this
Article EIGHTH, if such business combination, proposed dissolution or
proposed amendment is approved, prior to its adoption or authorization by
the stockholders of the Corporation, by a resolution of the Board of
Directors of the Corporation which is approved by at least two- thirds of
those members of the Board of Directors of the Corporation who are not, at
the time of their approval, involved with and/or representing an other
entity which, at such time, is the beneficial owner, directly or
indirectly, of more than twenty percent (20%) of the outstanding shares of
stock of the Corporation then entitled to vote in the election of
directors.
NINTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which
the director derived an improper personal benefit.