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EXHIBIT 3.2
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THE HOME DEPOT, INC.
BY-LAWS (AMENDED AND RESTATED)
ARTICLE I.
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of the
Corporation shall be held on the first Tuesday in the month of May in each year,
at the hour of 10 o'clock A.M., or at such other time on such other day within
the months of April, May or June as shall be fixed by the Board of Directors,
for the purpose of electing directors and for the transaction of such other
business as may come before the meeting. If the day fixed for the annual meeting
shall be a legal holiday in the state in which the meeting is to be held, such
meeting shall be a legal holiday in the state in which the meeting is to be
held, such meeting shall be held on the next succeeding business day. If the
election of directors shall not be held on the day designated herein or
determined in the manner provided herein for any annual meeting of the
stockholders, or at any adjournment thereof, the Board of Directors shall cause
the election to be held at a special meeting of the stockholders as soon
thereafter as conveniently may be.
SECTION 2. Special meetings of the stockholders may be called
at any time by the Chairman of the Board, the President or the Board of
Directors.
SECTION 3. Written notice of the time and place of every
annual or special meeting of the stockholders shall be given at least ten but
not more than sixty days previous to such meetings by personal delivery to the
stockholder of a copy of such notice or by mailing a copy of such notice
addressed to the stockholder at his post office address as the same shall appear
on the record of stockholders of the Corporation or, if he shall have filed with
the Secretary of the Corporation a written request that notices to him be mailed
to him at some other address, then addressed to him at such other address;
provided, however, that notice of any meeting to take action on a proposed
merger or consolidation of the Corporation or on a proposed sale of all or
substantially all of the assets of the Corporation shall be given at least
twenty but not more than sixty days prior to such meeting. Notice of a special
meeting of the stockholders shall also state the purpose or purposes for which
the meeting is called. Each notice of a special meeting of stockholders shall
indicate that it has been issued by or at the direction of the person or persons
calling the meeting. Notice shall be deemed given when deposited, postage
prepaid, in a United States post office or official depository. A written waiver
of notice signed by the stockholder entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. Attendance of a
stockholder at a meeting shall constitute a waiver of notice of such meeting,
except when the stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the
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transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any written
waiver of notice.
SECTION 4. Every annual meeting of the stockholders shall be
held at such place within or without the State of Delaware as may be determined
by the Board of Directors and stated in the notice of any such meeting, and
every special meeting shall be held at such place within or without the State of
Delaware as may be stated in the notice of such special meeting.
SECTION 5. No business shall be transacted at any special
meeting of the stockholders except that business which related to the purpose or
purposes set forth in the notice of the meeting.
SECTION 6. At each meeting of the stockholders there shall be
present, either in person or by proxy, the holders of a majority of the shares
of the Corporation entitled to vote thereat in order to constitute a quorum. Any
meeting of the stockholders at which a quorum is not present may be adjourned
from time to time to some other time without any new notice other than an
announcement at the meeting by the votes cast in person or by proxy of the
holders of a majority of those shares which are cast on a motion to adjourn,
provided, however, that if any adjournment is for more than thirty days, notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting.
SECTION 7. At all meetings of the stockholders, all questions
except as otherwise required by the laws of the State of Delaware shall be
determined by a majority of the votes cast at the meeting of the holders of
shares entitled to vote thereon. Upon all questions, every stockholder of record
shall be entitled at every meeting of stockholders to one vote for every share
of common stock standing in his name on the books of the Corporation and
qualified to vote. Holders of shares of $50 Series A Preferred Stock and $50
Series B Preferred Stock all have not right to vote such shares at any meeting
of stockholders and shall have no voice in the management of the Corporation.
SECTION 8. At all meetings of the stockholders, absent
stockholders entitled to vote thereat may vote by proxy or by the
attorney-in-fact thereof. No proxy shall be valid after the expiration of three
years from the date thereof unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the person executing it except as
otherwise provided by the laws of the State of Delaware.
SECTION 9. Any action required to be taken or which may be
taken at a meeting of the stockholders may be taken without a meeting, without
prior notice and without a vote if consent in writing, setting forth the action
so taken, shall be signed by the holders of stock having not less than the
minimum number of votes necessary to take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Prompt notice of
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the taking of the corporate actions without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing.
ARTICLE II.
DIRECTORS
SECTION 1. The business and affairs of the Corporation shall
be managed by and under the direction of the Board of Directors. Except as
otherwise provided by law and except as hereinafter otherwise provided for
filling vacancies, the directors of the Corporation shall be elected by the
stockholders entitled to vote at the annual meeting of the stockholders, to hold
office until the expiration of the term for which he is elected and until his
successor has been elected and qualified or until his earlier resignation or
removal.
SECTION 2. An annual meeting of the Board of Directors shall
be held after each annual election of directors. If such election occurs at an
annual meeting of stockholders, the annual meeting of the Board of Directors
shall take place as soon after such written consent is duly filed with the
Corporation as is practicable.
SECTION 3. Special meetings of the Board of Directors shall be
called at any time by the Secretary at the direction of the Chairman of the
Board, the President or a majority of the directors.
SECTION 4. Written notice of each special meeting of the Board
of Directors shall be given to each member thereof specifying the time and place
of the meeting. Notice shall be given by first class mail, telegram, radiogram,
telex or personal service. At least forty-eight hours' notice must be given by
telegram, radiogram, telex or personal service when less than six days' notice
is given. If notice to a director is given by mail, the notice shall be directed
to him at the address designated by him for the purpose, or, if none is
designated, at his last known address, and shall be deemed given when deposited,
postage prepaid, in a post office or official depository of any nation. If
notice to a director is given by telegram, radiogram or telex, it shall be
directed to his last known address and, in the case of notice by telegram or
radiogram, shall be deemed given when received by the communications carrier.
Notice by telex shall be deemed given when transmitted. A written waiver of
notice signed by the director entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a
director at a meeting shall constitute a waiver of notice of such meeting,
except when the director attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
directors need be specified in any written waiver of notice.
SECTION 5. Except for meeting held after an annual meeting of
stockholders, meetings of the Board of Directors shall be held at such place as
may be specified in the notice
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thereof, or, if no place is specified in the notice, at such other place or
places as the Board of Directors may from time to time fix thereof.
SECTION 6. Members of the Board of Directors may participate
in a meeting of the Board by means of conference telephone or similar
communications equipment by means of which all person participating in the
meeting can hear each other. Participation in a meeting pursuant to this section
shall constitute presence in person at such meeting.
SECTION 7. A majority of the total number of directors shall
be necessary to constitute a quorum for the transaction of business and the act
of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors. Any regular or special
meeting of the Board at which a quorum is not present may be adjourned from time
to time to some other place or time or both by a majority of the directors
present without any new notice other than an announcement at the meeting.
SECTION 8. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. Any such committee, to the extent provided in the resolution of the
Board of Directors and to the extent permitted by law, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority to (i) amend the certificate of
incorporation, (ii) adopt an agreement of merger or consolidation, (iii)
recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, (iv) recommend to
the stockholders a dissolution of the Corporation or a revocation of a
dissolution or (v) amend the by-laws of the Corporation. Such committee or
committees shall have such name or names as may be determined from time to time
by resolution adopted by the Board.
SECTION 9. Any action required or permitted to be taken at
any meeting of the Board of Directors may be taken without a meeting if all
members of the Board consent thereto in writing and the writing is filed with
the minutes of proceedings of the Board.
SECTION 10. The Board of Directors of the Corporation shall
consist of not less than three nor more than fifteen members, 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.
SECTION 11. Directors may receive compensation for services to
the Corporation in their capacities as directors or otherwise in such manner and
in such amounts as may be fixed from time to time by resolution of the Board of
Directors.
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ARTICLE III.
OFFICERS
SECTION 1. The Board of Directors, at the annual meeting
thereof, shall appoint a Chairman of the Board, a President, a Treasurer and a
Secretary. The Board may at any time appoint one or more Vice Presidents,
Assistant Treasurers and Assistant Secretaries. Each such officer shall serve
from time of his appointment until a successor shall be chosen and qualified or
until his earlier resignation or removal. The compensation of the officers shall
be fixed by the Board.
SECTION 2. The Chairman of the Board shall preside at all
meetings of stockholders and of the Board of Directors. He shall be the chief
executive officer and head of the Corporation and, subject to the Board of
Directors, shall have the general control and management of the business and
affairs of the Corporation. He shall vote any shares of stock or other voting
securities owned by the Corporation. In general, he shall perform all duties
incident to the office of the Chairman of the Board and such other duties as may
from time to time be assigned to him by the Board.
SECTION 3. The President shall be the Chief operating officer
of the Corporation and, subject to the Board of Directors and the Chairman of
the Board, shall have control of the operational aspects of the business and
affairs of the Corporation. He shall see that all orders of the Chairman of the
Board are carried into effect, and shall perform all other duties necessary to
his office or properly required of him by the Board or the Chairman of the
Board.
SECTION 4. During the absence or disability of the President,
or during a vacancy in the office of President, the Vice President with the
greatest seniority shall perform the duties and have the powers of the
President.
SECTION 5. The Secretary shall have custody of the seal of the
Corporation. He shall keep the minutes of the Board of Directors, and of the
stockholders, and shall attend to the giving and serving of all notices of the
Corporation. He shall have charge of the certificate book and such other books
and papers as the Board may direct; and he shall perform such other duties as
may be incidental to his office or as may be assigned to him by the Board of
Directors. He shall also keep or cause to be kept a stock book, containing the
names, alphabetically arranged, of all persons who are stockholders of the
Corporation showing their respective addresses, the number of shares registered
in the name of each, and the dates when they respectively became the owners of
record thereof, and such books shall be open for inspection as prescribed by the
laws of the States of Delaware. During the absence or disability of the
Secretary, or during a vacancy in the office of Secretary, the Assistant
Secretary with the greatest seniority shall perform the duties and have the
powers of the Secretary.
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SECTION 6. The Treasurer shall have the care and custody of
the funds and securities of the Corporation and shall deposit the same in the
name of the Corporation in such bank or banks as the Board of Directors may
determine. The Treasurer shall also have the care and custody of the
Corporation's books of account and he shall be responsible for the general and
cost accounting functions of the Corporation. During the absence or disability
of the Treasurer, or during a vacancy in the office of Treasurer, the Assistant
Treasurer with the greatest seniority shall perform the duties and have the
powers of the Treasurer.
ARTICLE IV.
RESIGNATIONS, REMOVALS, VACANCIES AND
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. Any director or officer may resign his office at
any time, such resignation to be made in writing and to take effect from the
time of its receipt by the Corporation, unless some future time be fixed in the
resignation and in that case from that time. The acceptance of a resignation
shall not be required to make it effective. Nothing herein shall be deemed to
affect any contractual rights of the Corporation.
SECTION 2. Any officer may be removed with or without cause at
any time by the Board of Directors. Any employee of the Corporation may be
removed at any time by the Board of Directors or by an officer. The removal of
an officer or employee without cause shall be without prejudice to his
contractual rights, if any. The election or appointment of an officer or
employee shall not of itself create contractual rights. Any director or the
entire Board may be removed, with or without cause, by the holders of a majority
of the shares then entitled to vote at an election of directors.
SECTION 3. Any vacancy or newly created directorship on the
Board of Directors may be filled by a majority vote of the Directors then in
office, or by majority vote of the stockholders.
SECTION 4. Each former, present or future director, officer,
employee or agent of the Corporation, and each person who may serve at the
request of the Corporation as a director, officer, employee or agent of another
Corporation, partnership, joint venture, trust or other enterprise shall be
indemnified by the Corporation in all events, to the fullest extent and in the
manner permitted by the laws of the State of Delaware then in effect.
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ARTICLE V.
COMMON STOCK
SECTION 1. Certificates for shares of the common stock of the
Corporation shall be numbered and registered on the books of the Corporation in
the order in which they shall be issued and shall be signed by the Chairman of
the Board, the President or a Vice President, and the Secretary or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer and sealed with the seal
of the Corporation.
SECTION 2. Transfers of shares shall be made upon the books of
the Corporation (i) only by the holder thereof in person or by power of attorney
duly executed and filed with the Corporation, (ii) in accordance with the
Shareholders Agreement, and (iii) upon the surrender to the Corporation of the
certificate or certificates for such shares.
ARTICLE VI
PREFERRED STOCK
SECTION 1. Certificates for shares of the $50 Series A
Preferred Stock and the $50 Series B Preferred Stock of the Corporation shall be
numbered and registered on the books of the Corporation in the order in which
they shall be issued and shall be signed by the Chairman of the Board or the
President or a Vice President, and the Secretary or an Assistant Secretary, or
the Treasurer or an Assistant Treasurer and sealed with the seal of the
Corporation.
SECTION 2. In accordance with the terms under which such
preferred shares were issued, all of the shares of the $50 Series A Preferred
Stock of the Corporation shall be deemed by the Corporation at its election
expressed by resolution of the Board of Directors but no later than six (6)
calendar months following the close of any fiscal year at which the Net Worth of
the Corporation and any subsidiaries thereof, computed in accordance with
generally accepted accounting principles consistently applied on a consolidated
basis, shall be equal to or exceed Ten Million Dollars ($10,000,000.00), and
subject to there being sufficient surplus to repurchase all of the Common Shares
which the Corporation is obligated to repurchase pursuant to the Shareholders
Agreement.
SECTION 3. In accordance with the terms under which such
preferred shares were issued, the shares of the $50 Series B Preferred Stock of
the Corporation shall be redeemed by the Corporation at the election of the
holder of such shares; provided, however, that such election may not be
exercised at any time prior to the redemption of the Series A Preferred Stock.
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ARTICLE VII.
CHECKS, DRAFTS AND NOTES
The Chairman of the Board or the President or any officers designated
by Resolution of the Board of Directors shall sign all checks and drafts
necessary to be drawn and may accept any drafts drawn upon the Corporation in
due course of business. No check or draft shall be endorsed by the Corporation
and no promissory note, bond, debenture or other evidence of indebtedness shall
be made, signed, issued or endorsed by the Corporation unless signed by the
Chairman or the President or any officer designated under powers given by a
resolution of the Board except that any officer may endorse for collection or
deposit only, expressly stating the purpose of such endorsements, checks, drafts
and promissory notes to the order of the Corporation.
ARTICLE VIII.
SEAL
The seal of the Corporation shall be in the custody of the
Secretary. It shall be circular in form and shall have engraved upon it the name
of the Corporation arranged in a circle and the words and figures "Incorporated
1978 Delaware" across the center of the space enclosed.
ARTICLE IX
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
The Corporation shall not be subject to the provisions of
Section 203 of the General Corporation Law of the State of Delaware (Business
Combination with Interested Stockholders). This Article IX shall not be amended
only by the affirmative vote of a majority of the Corporation's stockholders
entitled to vote on such matter.
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