Exhibit 10.2


 


SEPARATION
AGREEMENT & RELEASE


 


This is an Agreement between The Home Depot, Inc.
(the “Company”) and Robert P. DeRodes
(the “Executive”).


 


WHEREAS, Company and Executive intend the terms
and conditions of this Agreement to govern all issues related to Executive’s
employment and termination from Company and its subsidiaries and, except as
otherwise expressly provided herein, is intended to supersede and replace the
provisions set forth in any of his employment letters, including but not limited
to the letter agreement dated February 5, 2002; and


 


WHEREAS, Executive acknowledges that he has been
given a reasonable period of time, up to and including twenty-one (21) days, to
consider the terms of this Agreement; and


 


WHEREAS, Company advises Executive to consult
with a lawyer before signing this Agreement; and


 


WHEREAS, Executive acknowledges that the
consideration provided him under this Agreement is sufficient to support the
releases provided by him under this Agreement; and


 


WHEREAS, Executive represents that he has not
filed any charges, claims or lawsuits against Company involving any aspect of
his employment which have not been terminated as of the date of this Agreement;
and


 


WHEREAS, Executive understands that Company
regards the representations by him as material and that Company is relying on
these representations in entering into this Agreement,


 


NOW, THEREFORE, Company and Executive agree as follows:


 


1.                                       Employment
Status and Termination Date.  Executive will continue his employment with
Company through January 2, 2009. 
Executive will maintain his current salary and benefits during this
time. Executive warrants that in performing his duties he shall use his best
efforts in a diligent manner and shall dedicate such time as necessary to perform
them on a timely basis. Executive’s last day of employment (“Termination Date”) shall be January 2,
2009, or Company’s earlier termination of Executive’s employment, at Company’s
sole discretion. If Company determines that the Termination Date will precede January 2,
2009, Executive shall receive payment at his current salary rate for the period
of time between the Termination Date and January 2, 2009, subject to
applicable tax withholding. Payments are due on the first day of each month
following the Termination Date. Payment of all such monthly payments shall be
completed no later than January 31, 2009. Each such monthly payment shall
constitute a separate payment for purpose of Section 409A of the Internal
Revenue Code (the “Code”).
Executive shall not accrue any vacation days or credit subsequent to the
Termination Date.


 


2.                                       Separation
Payments.  Executive
shall receive twelve (12) monthly separation payments of $62,666.67 each,
payable on the first business day of each month following January 2, 2009.
All payments are subject to applicable tax withholding. Each monthly payment
shall constitute a separate payment for purposes of Code Section 409A. It
is intended that the exemption provided by Treas. Reg. §1.409A-1(b)(9)(iii)(A)(2) shall
apply to that portion of the monthly payments not in excess of two times the
maximum amount that may be taken into account under a qualified plan pursuant
to Code Section 401(a)(17).


 


 

















 


 


3.                                       Bonuses.


 


(a)           Fiscal
2008 MIP. Executive  will
participate in the Management Incentive Plan (“MIP”)
for Fiscal 2008, and will receive a prorated payment of 91.67% of his MIP
payout if pre-established performance goals are achieved, as determined by
Company in its sole discretion. Any bonus payment earned will be payable at the
same time other officers receive their bonuses for such year, but in no event
later than April 15, 2009, subject to applicable tax withholding.


 


(b)           Fiscal 2009 MIP.  Executive  will not be eligible to participate in
the MIP for Fiscal Year 2009 or beyond. Notwithstanding the foregoing, Executive will receive a guaranteed single sum
payment of $752,000, less applicable tax withholding, representing his target
MIP bonus for Fiscal 2009, payable to Executive at the same time other officers
receive their Fiscal 2009 bonuses for such year but in no event later than April 30,
2010.  This Section 3(b) is
carried forward from Executive’s February 5, 2002 employment letter with
the Company and it is intended to be an unmodified grandfathered contract
benefit under Rev. Rul. 2008-13.


 


(c)           LTIP.  Executive
will not be eligible to participate in any Long Term Incentive Program (“LTIP”) after the date of this
Agreement and forfeits all rights to payment under any outstanding LTIP cycle.


 


(d)           Other Bonuses.  Executive will not be eligible for bonus payments of any kind, except
as provided in this Section 3.


 


4.                                       Benefits.  Executive’s benefits (including the
Supplemental Executive Choice Program and executive life insurance and leased
car programs) shall end on the Termination Date, pursuant to the terms of such
plans and applicable law.  Executive
shall receive a monthly payment (subject to applicable tax withholding), due on
the first day of each month following the Termination Date, in an amount
necessary to continue his healthcare coverage through COBRA, less the employee
share of the premium for said coverage, through the earlier of: (a) twelve
(12) months from the Termination Date, or (b) Executive’s acceptance of
other employment with comparable healthcare eligibility. Company will authorize
Executive’s eligibility for retiree healthcare coverage through
UnitedHealthcare (or current insurance provider at such time) after expiration
of his COBRA coverage and before he attains age sixty (60), provided, however,
that Executive’s coverage under such plan is contingent upon the consent and
agreement of UnitedHealthcare (or current insurance provider at such time) to
provide said coverage to Executive. Executive shall not be entitled to any
other benefits except as expressly provided for in this Agreement.


 


5.                                       Stock
Options/Restricted Stock.


 


(a)          All of
Executive’s options to purchase Company’s common stock (“Options”)
that vest before the Termination Date will be cancelled and forfeited unless
exercised by April 2, 2010. Executive’s 40,461 outstanding, unvested
Options that are originally scheduled to vest after January 2, 2009 but
before January 3, 2010 (comprised of 12,500 Options granted on March 17,
2004 that were originally scheduled to vest on March 17, 2009; 15,000
Options granted on March 23, 2005 that were originally scheduled on March 23,
2009; and 12,961 Options that were granted on March 21, 2007 that were
originally scheduled to vest on March 21, 2009) are hereby amended to vest
on the Termination Date.  These 40,461
Options may not be exercised until the following dates: 20,230 Options may be
exercised as of the Termination Date; 5,231 Options may be exercised as of March 21,
2009; and 15,000 Options may be exercised as of March 23, 2009. Any
portion of the 40,461 Options not exercised by April 2, 2010 will be
cancelled and forfeited.  All 40,461
Options are subject to forfeiture for 


 


 


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any
earlier breach as provided in Paragraph 10. All other unvested Options shall be
forfeited on the Termination Date.


 


(b)         The
restrictions on Executive’s 176,896 outstanding shares of restricted shares of
Company’s common stock (“Restricted Shares”),
originally scheduled to lapse after January 2, 2009 (comprised of 10,000
Restricted Shares granted on August 21, 2003 and originally scheduled to
vest on August 21, 2009; 22,000 Restricted Shares granted on March 17,
2004 and originally scheduled to vest on March 17, 2009; 22,000 Restricted
Shares granted on March 23, 2005 and originally scheduled to vest on March 23,
2010; 49,000 Restricted Shares granted on March 20, 2006 and originally
scheduled to vest on March 20, 2011; 12,500 Restricted Shares granted on March 20,
2006 and originally scheduled to vest on March 20, 2009; 8,131 Restricted
Shares granted on March 20, 2006 and originally scheduled to vest on March 20,
2009; 28,265 Restricted Shares granted on March 21, 2007 and originally
scheduled to vest on March 21, 2012; and 25,000 Restricted Shares granted
on March 20, 2006 and originally scheduled to vest on September 5,
2010), are hereby amended to lapse instead on the Termination Date. All other
shares of Executive’s Restricted Shares shall be forfeited on the Termination
Date.  The 176,896 Restricted Shares may
not be transferred until the following dates: 88,448 Restricted Shares may be
transferred as of the Termination Date; and the remaining 88,448 Restricted
Shares may be transferred as of January 3, 2011. Executive and Company
agree that Company shall not be required to issue any share to Executive before
the date the share may be transferred, as set forth in this Paragraph 5(b),
except to accommodate the sales of shares for tax purposes as set forth in
Paragraph 5(c), below. All 176,896 Restricted Shares are subject to forfeiture
for any earlier breach as provided in Paragraph 10.  If Company determines that the Termination
Date will precede January 2, 2009, the restrictions on Executive’s 27,500
outstanding shares of restricted shares of Company’s common stock (“Restricted Shares”), comprised of
12,500 Restricted Shares granted on August 18, 2005 and originally
scheduled to vest on August 18, 2008; and 15,000 Restricted Shares granted
on August 26, 2002 and originally scheduled to vest on August 26,
2008, are hereby amended to lapse instead on the Termination Date.  The 27,500 Restricted Shares may not be
transferred until the following dates: 12,500 Restricted Shares may be
transferred as of August 18, 2008; and 15,000 Restricted Shares may be
transferred as of August 26, 2008.


 


(c)          Executive and
Company acknowledge that the shares referenced in Paragraph 5(b) shall
constitute taxable income to Executive at the time of vesting on the
Termination Date; and that the vested stock options referenced in Paragraph 5(a) shall
be taxable to Executive when such options are exercised. Accordingly, Executive
acknowledges his obligations to pay all related applicable federal, state and
local income and employment taxes, and that Company is required to withhold
applicable taxes with respect to these shares and vested options. Accordingly,
Executive hereby authorizes Company to withhold and surrender to Company a
sufficient number of shares necessary to satisfy said withholding obligations.


 


(d)         Executive shall
not be eligible to receive any other equity-based awards.


 


(e)          Executive is
solely responsible for ensuring that his equity awards are properly credited,
exercised and handled as provided by the terms of the awards as modified by
this Agreement.  Executive acknowledges
that he may not rely on the Merrill Lynch website in determining the exercise
or expiration dates of his equity awards. Executive should direct any inquiries
to the Atlanta Branch of Merrill Lynch at 404-264-7274; however, Company is not
responsible for any incorrect information Executive might receive from Merrill
Lynch.


 


 


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6.                                       Release of
Claims. Executive and his heirs, assigns, and agents release, waive and
discharge Company, its past and present parents, subsidiaries, affiliates and
related entities, and their respective past and present predecessors,
successors, assigns, representatives, directors, officers, employees, and
agents from each and every claim, action or right of any sort, known or
unknown, arising on or before the Effective Date.


 


(a)          The foregoing
release includes, but is not limited to, any claim of discrimination on the
basis of race, sex, religion, sexual orientation, national origin, disability,
age, or citizenship status; any other claim based on any local, state, or
federal prohibition, including but not limited to claims under Title VII of the
Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act
of 1967, as amended, or the Americans With
Disabilities Act; any claim arising out of or related to any alleged
express or implied employment contract, any other alleged contract affecting
terms and conditions of employment, or an alleged covenant of good faith and
fair dealing; or any claim for severance
pay, bonus, salary, sick leave, stocks, attorneys’ fees, holiday pay, vacation
pay, life insurance, health or medical insurance or any other employee or
fringe benefit, workers’ compensation or disability.


 


(b)         Executive represents that he
understands the foregoing release, that rights and claims under the Age
Discrimination in Employment Act of 1967, as amended, are among the rights and
claims against Company he is releasing, and that he understands that he is not
presently releasing any future rights or claims that might arise after the Effective
Date.


 


(c)          Executive
further agrees never to sue Company or its past and present directors,
officers, employees, parents, subsidiaries, affiliates, related entities, and
agents or cause Company or its past and present directors, officers, employees,
parents, subsidiaries, affiliates, related entities, and agents to be sued
regarding any matter within the scope of the above release. If Executive
violates this Paragraph 6, Company may recover all damages as allowed by law,
including all costs and expenses, including reasonable attorneys’ fees,
incurred in defending against the suit.


 


(d)         Nothing herein
is intended to or shall in any manner release, diminish or impair Executive’s
rights under this Agreement, and rights, if any, that Executive may have to: (i) indemnification
or advancement of expenses under Company’s certificate of incorporation or
bylaws, or Delaware law, and (ii) coverage under directors’ and officers’
liability insurance maintained by Company or its affiliates.


 


7.                                       Additional
Release of Claims. 
Notwithstanding any other provision of this Agreement, Executive shall
not be entitled to any payment or benefit pursuant to Paragraphs 3, 4 or 5
unless Executive has delivered to Company a second release of claims, in the
form shown on Exhibit A, that is
signed by Executive at least twenty-one (21) days after the Termination Date
and is not revoked by Executive, as permitted by the express terms in Exhibit A.


 


8.                                       Confidential
Information and Trade Secrets.


 


(a)          Executive acknowledges that through his employment with Company he has
acquired and had access to Confidential Information of Company, its parents,
subsidiaries, affiliates or related entities.  Executive further acknowledges that he has
not published, disclosed or used any of this Confidential Information except in
accordance with his duties for Company. 
Executive agrees that, for a period of three years after the Effective
Date, he will hold in confidence all Confidential Information of Company, its
parents, subsidiaries, affiliates or related entities and will not disclose, publish or make use of such Confidential
Information, unless compelled by law and then only after written notice to
Company’s Executive Vice President, Human Resources.  


 


 


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Executive further
agrees to return all documents, disks, or any other item or source containing
Confidential Information, or any other property of Company, its parents,
subsidiaries, affiliates or related entities,
to Company on or before the Effective Date. 
If Executive has any question regarding what data or information
would be considered by Company to be Confidential Information, Executive agrees
to contact the Executive Vice President, Human Resources for written
clarification.  “Confidential Information”
shall include any data or information, other than trade secrets, that is
valuable to Company, its parents, subsidiaries, affiliates or related
entities and not generally known to
competitors or outsiders, regardless of whether the confidential information is
in printed, written, or electronic form, retained in Executive’s memory, or has
been compiled or created by Executive. 
This includes, but is not limited to: information technology, computer
systems, marketing, advertising, technical, financial, personnel, staffing,
payroll, merchandising, strategic planning, product, vendor, supplier, customer
or store planning data, construction, trade secrets, or other information
similar to the foregoing.


 


(b)         Executive
also acknowledges that through his employment with Company he has acquired and
had access to Company’s Trade Secrets, its parents, subsidiaries,
affiliates or related entities.  Executive further acknowledges that Company, its
parents, subsidiaries, affiliates or related entities have made reasonable efforts under the circumstances to maintain the
secrecy of their Trade Secrets. 
Executive agrees to hold in confidence all Trade Secrets of Company, its
parents, subsidiaries, affiliates or related entities that came into his knowledge during employment by Company and shall
not disclose, publish, or make use of at any time such Trade Secrets for so
long as the information remains a Trade Secret. 
“Trade Secret” means
information, without regard to form, including, but not limited to, any technical
or non-technical data, formula, pattern, compilation, program, device, method,
technique, drawing, process, financial data, financial plans, technology plans
or strategy, company software or programs, strategic plans, product plans, or
list of actual or potential customers or suppliers which is not commonly known
by or available to the public and which information: (i) derives economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can derive economic
value from its disclosure or use and (ii) is the subject of efforts that
are reasonable under the circumstances to maintain its secrecy.


 


(c)          Executive
further acknowledges that his breach of any of the covenants in this Paragraph
8 would result in immediate and irreparable harm to Company, its parents, subsidiaries, affiliates or
related entities that cannot be adequately or reasonably compensated at
law.  Accordingly, Executive agrees that
Company shall be entitled, if any such breach shall occur or be threatened or
attempted, if it so elects, to seek from a court a temporary, preliminary, and
permanent injunction, without being required to post a bond, enjoining and
restraining such breach or threatened or attempted breach by Executive.


 


9.                                       Non-Competition
and Non-Solicitation.


 


(a)          Executive
acknowledges that during his employment he provided services to Company, its
parents, subsidiaries, affiliates, and related entities in all locations that
these entities conduct business.  These
services necessarily required Company to disclose the Confidential Information
and Trade Secrets of these entities to Executive.  Executive further acknowledges that his
position allowed him to develop a personal relationship with certain customers,
suppliers and vendors of Company, its parents, subsidiaries, affiliates, and
related entities, and to acquire knowledge of the affairs and requirements of
these customers, suppliers and vendors. The customers, suppliers and vendors
with whom Executive has had business dealings with on behalf of these entities
are located throughout the world.   As a
result, Executive agrees that he will not, before January 3, 2011, enter
into or maintain an 


 


 


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employment, contractual, or
other relationship, either directly or indirectly, to provide information
technology or executive services in the same or similar manner as he did for
Company to any company or entity engaged in any way in a business that competes
directly or indirectly with Company, its parents, subsidiaries, affiliates or
related entities, in the United States, Mexico, China, Canada, Puerto Rico,
Virgin Islands, Guam, other country or territory where Company does business
before January 3, 2011, without the prior written consent of Company’s
Executive Vice President, Human Resources. Businesses that compete with Company
specifically include, but are not limited to, the following entities and each
of their subsidiaries, affiliates, assigns, or successors in interest: Lowe’s
Companies, Inc. (including, but not limited to, Eagle Hardware and
Garden); Sears Holding Corp. (including, but not limited to, Orchard Supply and
Hardware Company); Wal-Mart; RONA Inc.; B&Q; Ace Hardware; True Value
Company; Reno Depot; OBI; Kent; Home Hardware; Orient Home; Home First; Leroy
Merlin; La Maison; Home Mart; No. 9; and Menard, Inc.


 


(b)   For the period through January 3, 2011, to
the extent Executive has an employment, contractual, directorship, or affiliate
(as defined by SEC Rules) relationship with another company, Executive shall
give advance written notice to Company in the event Executive becomes aware
that such other company intends to enter into bid or other business
negotiations with Company; provided that this advance-notice obligation shall
not apply to the extent it would be inconsistent with Executive’s fiduciary
duties to such other company or its shareholders, in which case Executive shall
give written notice to Company within one (1) business day of submission of any
such bid or entering into business negotiations with Company. In addition, for
the period through January 3, 2011, Executive shall not, whether through an
employment, contractual, directorship, affiliate, or other relationship: (i)
participate in communications, negotiations or bids between any other company
and Company and will refrain from any oversight or advisory services with
respect thereto;  or (ii) interfere with,
solicit on behalf of such other company or attempt to entice away from Company
(or any affiliate or subsidiary of Company) (x) any project, financing or
customer that, to the knowledge of Executive or upon notice to Executive from
Company, Company (or any affiliate or subsidiary of Company) has under contract
(including unfulfilled purchase orders), or any letter of supply or other
supplier contract or arrangement that, to the knowledge of Executive or upon
notice to Executive
from Company, has been entered into by Company (or any affiliate or subsidiary
of Company), and all extensions, renewals and re-solicitations of such
contracts or arrangements, (y) any contract, agreement or arrangement that, to
the knowledge of Executive or upon notice to Executive from Company, Company
(or any affiliate or subsidiary of Company) is actively negotiating with any
other party, or (z) any prospective business opportunity that, to the knowledge
of Executive or upon notice to Executive from Company, Company (or any
affiliate or subsidiary of Company) has identified.


 


(c)          In the event
Executive wishes to enter into any relationship or employment before January 3,
2011 which would violate  the above
non-compete provision, Executive agrees to request written permission from
Company’s Executive Vice President, Human Resources before entering any such
relationship or employment. Company may approve or not approve of the
relationship or employment at its absolute discretion.


 


(d)         Executive
agrees that before January 3, 2012, he will not directly or indirectly, on
behalf of himself or any other entity or person, solicit or encourage any
person who is an employee of Company, its
parents, subsidiaries, affiliates or related entities to terminate his or her
relationship with Company, its
parents, subsidiaries, affiliates or related entities, or to refer any such
employee to anyone, without prior written approval from Company’s Executive
Vice President, Human Resources.


 


 


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(e)          Executive
acknowledges that the covenants in this Paragraph 9:  (i) are necessary for the protection of
the legitimate business interests of Company, its parents, subsidiaries,
affiliates, and related entities; (ii) are reasonable in terms of time,
geographic scope, and activities restricted; (iii) are designed to prevent
unfair competition and not to stifle the inherent skill and experience of
Executive; (iv) will not interfere with Executive’s ability to earn a
livelihood; and (v) do not confer a benefit upon Company disproportionate
to the detriment to Executive.  Executive
acknowledges that if he were to breach any of the covenants in this Paragraph
9, such breach would result in immediate and irreparable harm to Company that
cannot be adequately or reasonably compensated at law.  Accordingly, Executive agrees that Company
shall be entitled, if any such breach shall occur or be threatened or
attempted, if it so elects, to a seek from a court a temporary, preliminary,
and permanent injunction, without being required to post a bond, enjoining and
restraining such breach or threatened or attempted breach by Executive.


 


10.                                 Breach by
Executive.  Company’s
obligations to Executive under this Agreement are contingent on Executive’s
performance of his obligations under this Agreement. Any breach by Executive of
this Agreement will result in the immediate cancellation of all Executive’s
outstanding stock options and restricted stock, as well as entitle Company to
all its other remedies allowed in law or equity, including but not limited to
the return of any payments that it made to Executive under this Agreement and
the return to Company of any proceeds Executive received from stock options
exercised or restricted stock sold after April 1, 2008, to the extent
permitted under federal, state and local law.


 


11.                                 Board Service.  Company will waive application of its
internal policy, and, subject to Executive’s compliance with the requirements
of Paragraph 9, it shall not be considered a breach of this Agreement, if
Executive serves on more than one external board of directors for other
companies (“Other Company”) before the Termination Date, provided that such
Other Company board service does not unreasonably interfere with Executive’s
duties and obligations to Company pursuant to this Agreement, as determined by
Company in its sole discretion, and Executive complies with the following
requirements:


 


(a)          At any time before the Termination Date
and for a period of two (2) years following the Termination Date, Executive
shall not participate in any board meetings, discussions, or other
communications regarding Company.


 


(b)         Executive shall comply with all
requirements as set forth in Paragraph 9 above. 
No language in this Paragraph 11 shall be read to limit the rights of
the Company or the obligations of the Executive to the Company as set forth in
Paragraph 9 above.


 


12.                                 Termination for
“Cause” or Voluntary Resignation.  Executive will not receive any of the
payments or benefits specified in this Agreement if he is terminated for “cause”
or voluntarily resigns from employment before January 2, 2009.  “Cause” for
termination shall mean: (a) harassment of or discrimination against
associates, customers, or vendors; (b) unethical conduct (including, but
not limited to, accepting bribes, disclosure of Confidential Information,
etc.); (c) falsification of Company records or documents; (d) violation
of Company’s Conflict of Interest policy; (e) theft; (f) violation of
Company’s Mutual Attraction policy; (g) violation of Company’s Substance
Abuse policy; or (h) violation of Company’s Securities Law Policy.  Executive will not be considered to have
voluntarily resigned from employment if, before January 2, 2009, Executive
resigns because: (i) he is assigned a role outside the Atlanta
metropolitan area, or (ii) his base salary is decreased; or (iii) he
is assigned to a position other than Executive Vice President, or to a position
that does not report to either the Chief Executive Officer or to a Chief
Information Officer other than Executive (“Resignation Events”),
provided that Executive 


 


 


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provides written notice to Company within 90 days of being notified of
a Resignation Event of his intent to resign, whereupon Company shall have 30
days thereafter remedy the condition.


 


13.                                 Executive
Availability.  Executive agrees
to make himself reasonably available to Company to respond to requests by
Company for information pertaining to or relating to Company and its
affiliates, subsidiaries, agents, officers, directors or employees which may be
within the knowledge of Executive. Executive agrees to cooperate fully with
Company in connection with any and all existing or future litigation, charges,
or investigations brought by or against Company or any of its past or present
affiliates, agents, officers, directors or employees, whether administrative,
civil or criminal in nature, in which and to the extent Company deems Executive’s
cooperation necessary.  In conjunction
with Executive’s commitments under this Paragraph 13, Company will reimburse
Executive for reasonable out-of-pocket expenses incurred as a result of such
cooperation.  The amount of expenses
reimbursable by Company under this Section 13 in any one calendar year
shall not affect the amount reimbursable in any other calendar year, and the
reimbursement of an eligible expense shall be made within sixty (60) days after
Executive’s written request for reimbursement accompanied with such evidence of
expenses incurred as Company may reasonably require, but in any event no later
than December 31 of the year after the year in which the expense was
incurred.  This Section 13 shall
expire on Executive’s death and shall not be subject to liquidation or exchange
for another benefit.


 


14.                                 Non-Disparagement. Except as may
be required by law or subpoena, Executive agrees that he will not  directly or indirectly publish, communicate, make or cause
to be made any statements or opinions that disparage, criticize or that would
be derogatory to or otherwise harm the business or reputation of Company, its
parents, subsidiaries, affiliates, or related entities, and their respective
past and present predecessors, successors, assigns, representatives, directors,
officers, employees, and agents to anyone, including but not limited to the
media, internet blogs, public interest groups and publishing companies.
Disparagement shall not include disparaging, criticizing or derogatory
statements made in Executive’s name as a result of bona fide identify theft,
provided that Executive cooperates with Company and takes steps reasonably
requested by Company to immediately correct and address such statements and
prevent their future occurrence.


 


15.                                 Insider
Trading.  Executive
acknowledges that for a period of six (6) months after the Termination
Date, he will remain subject to the restrictions of Company’s Securities Laws
Policy applicable to Directors, Officers, and Designated Associates, which
permits trading only during designated window periods.  After expiration of said six-month period,
the Securities Law Policy will no longer apply to Executive. However, Executive
acknowledges that through his employment with Company he may have learned
material, non-public information regarding Company.  The federal securities laws prohibit trading
by persons while aware of material, non-public information.  Executive should seek advice of his legal
counsel before conducting any transactions in Company’s stock if Executive
thinks he may possess such information.


 


16.                                 Future
Employment.  Executive
hereby understands and agrees that he will not be re-employed by Company in the
future and that Executive will never knowingly apply to Company, its
subsidiaries, affiliates, parents or divisions for any job or position in the
future.


 


17.                                 Severability of
Provisions. In the event that any provision in this Agreement
is determined to be legally invalid or unenforceable by any court of competent
jurisdiction, and cannot be modified to be enforceable, the affected provision
shall be stricken from the Agreement, and the remaining terms of the Agreement
and its enforceability shall remain unaffected.


 


18.                                 Right to Revoke
this Agreement. Executive may revoke this Agreement in writing
within seven (7) days of signing it by sending written notice of
revocation to Company’s Executive Vice President, 


 


 


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Human Resources.  The Agreement
will not take effect until the Effective Date. If Executive revokes this
Agreement, all of its provisions shall be void and unenforceable.


 


19.                                 Effective Date. The “Effective Date” shall be the day
after the end of the revocation period described in Paragraph 18.


 


20.                                 Non-Assignment.  Executive
represents and warrants that as of the date of this Agreement he has not
assigned or transferred, or purported to assign or transfer, to any person,
firm, corporation, association or entity whatsoever any released claim.  Executive hereby agrees to indemnify and hold
Company harmless against, without any limitation, any and all rights, claims,
warranties, demands, debts, obligations, liabilities, costs, court costs, expenses,
including attorneys’ fees, causes of action or judgments based on or arising
out of any such assignment or transfer.


 


21.                                 Code Section 409A.  Company makes no representation or warranty
to Executive or other person regarding compliance with, or exemption from, Section 409A
of the Internal Revenue Code with respect to any payment or benefit provided by
this Agreement.  Executive agrees that he shall bear sole and
exclusive responsibility for any and all federal, state, local or other tax
consequences (including, without limitation, any and all tax liability under Section 409A)
of this Agreement, and fully indemnifies and holds the Company harmless
therefor.  Executive should consult with his own tax advisor in
connection with this Agreement and its tax consequences.


 


22.                                 Entire
Agreement. This Agreement constitutes the entire understanding
between the parties. The parties have not relied on any oral statements that
are not included in this Agreement. Any modifications to this Agreement must be
in writing and signed by Company’s Executive Vice President, Human Resources.


 


23.                                 Governing Law.  This Agreement shall be construed,
interpreted and applied in accordance with the law of the State of Delaware,
without giving effect to the choice of law provisions thereof.  Executive and Company hereby irrevocably
submit any dispute arising out of or relating to this Agreement to the
exclusive concurrent jurisdiction of the state and federal courts located in
Delaware.  Executive and Company also
both irrevocably waive, to the fullest extent permitted by applicable law, any
objection either may now or hereafter have to the laying of venue of any such
dispute brought in such court or any defense of inconvenient forum for the
maintenance of such dispute, and both parties agree to accept service of legal
process from the courts of Delaware.


 


24.                                 Notices.  All
notices and other communications hereunder shall be in writing and may be given
by any of the following methods:  hand delivery, overnight courier,
facsimile, email, or certified U.S. mail, return receipt requested and postage
prepaid, addressed as follows:


 


	
   

  	
  If
  to the Executive:

  	
   

  	
  Robert
  P. DeRodes

  



 


 


9

















 


 


	
   

  	
  If
  to the Company:

  	
   

  	
  The
  Home Depot, Inc.

  
	
   

  	
   

  	
   

  	
  2455
  Paces Ferry Road

  
	
   

  	
   

  	
   

  	
  Atlanta,
  Georgia 30339

  
	
   

  	
   

  	
   

  	
  Attn:
  Executive Vice President, Human Resources

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  With
  copy to:

  
	
   

  	
   

  	
   

  	
  Jack
  A. VanWoerkom

  
	
   

  	
   

  	
   

  	
  Executive
  Vice President-General Counsel

  
	
   

  	
   

  	
   

  	
  and
  Corporate Secretary

  
	
   

  	
   

  	
   

  	
  2455
  Paces Ferry Road

  
	
   

  	
   

  	
   

  	
  Atlanta,
  Georgia 30339

  



 


 


or
to such other address as either of the parties shall have furnished to the
other in writing in accordance herewith.  Notice and communications shall
be effective when dispatched by any of the above methods, as reflected by the
applicable post-mark or other indicator (fax delivery confirmation for
facsimile and “delivered receipt” for email), as to the date and time of
dispatch.


 


                Executive
understands and acknowledges the significance and consequences of this
Agreement, that the consideration provided herein is fair and adequate, and
represents that the terms of this Agreement are fully understood and
voluntarily accepted.


 


	
  THE HOME DEPOT, INC.

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Timothy M. Crow

  	
   

  	
  By:

  	
  /s/ Robert P. DeRodes

  
	
   

  	
  Timothy M. Crow

  	
   

  	
   

  	
  Robert P. DeRodes

  
	
   

  	
  EVP — Human Resources

  	
   

  	
   

  	
  EVP — Chief Information Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date Signed: May 27, 2008

  	
   

  	
  Date Signed: May 27, 2008

  



 


 


10

















 


 


Exhibit A


RELEASE OF CLAIMS


 


This Release of Claims is executed by Robert P.
DeRodes (the “Executive”) in consideration
for certain promises by The Home Depot, Inc. (the “Company”)
contained in the
                                    ,
2008 Agreement and Release between Executive and Company.


 


WHEREAS, Executive executed a Agreement &
Release (“Agreement”) on
                                    
releasing Company from each and every claim, action or right of any sort, known
or unknown, that Executive may have against Company arising on or before the
Effective Date of the Agreement; and,


 


WHEREAS, Company and Executive agree that
Executive will execute this separate Release of Claims for each and every
claim, action or right of any sort, known or unknown, that Executive may have
against Company arising after the Effective Date of the Agreement but before
the Termination Date as defined in Paragraph 1 of the Agreement; and,


 


WHEREAS, the consideration for this Release of
Claims is set forth in Paragraph 7 of the Agreement; and


 


WHEREAS, Executive acknowledges that he has been
given a reasonable period of time, up to and including twenty-one (21) days, to
consider the terms of this Release of Claims; and


 


WHEREAS, Company advises Executive to consult
with a lawyer before signing this Release of Claims; and


 


WHEREAS, this Release of Claims shall be signed by
Executive at least twenty-one (21) days after the Termination Date; and


 


WHEREAS, Executive acknowledges that the
consideration provided for this Release of Claims is sufficient to support the
release of claims; and


 


WHEREAS, Executive represents that he has not
filed any charges, claims or lawsuits against Company involving any aspect of
his employment which have not been terminated as of the date of this Release of
Claims.


 


NOW, THEREFORE, Executive agrees as follows:


 


1.             Release of Claims.
Executive and his heirs, assigns, and agents release, waive and discharge
Company and its past and present directors, officers, employees, parents,
subsidiaries, affiliates, related entities, and agents from each and every
claim, action or right of any sort, known or unknown, arising on or before the
Termination Date.


 


 


11

















 


 


(a)          The foregoing
release includes, but is not limited to, any claim of discrimination on the
basis of race, sex, religion, sexual orientation, national origin, disability,
age, or citizenship status; any other claim based on any local, state, or
federal prohibition, including but not limited to claims under Title VII of the
Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act
of 1967, as amended (“ADEA”), or the Americans With Disabilities Act; any
claim arising out of or related to any alleged express or implied employment
contract, any other alleged contract affecting terms and conditions of
employment, or an alleged covenant of good faith and fair dealing; or any claim for severance pay, bonus, salary,
sick leave, stocks, attorneys’ fees, holiday pay, vacation pay, life insurance,
health or medical insurance or any other employee or fringe benefit, workers’
compensation or disability.


 


(b)         Executive
represents that he understands the foregoing release, that rights and claims
under ADEA are among the rights and claims against Company that he is
releasing, and that he understands that he is not presently releasing any
future rights or claims that might arise after the Termination Date.


 


(c)          Executive
further agrees never to sue Company or its past and present directors,
officers, employees, parents, subsidiaries, affiliates, related entities, and
agents or cause Company or its past and present directors, officers, employees,
parents, subsidiaries, affiliates, related entities, and agents to be sued
regarding any matter within the scope of the above release. If Executive
violates this Paragraph 1, Company may recover all damages as allowed by law,
including all costs and expenses, including reasonable attorneys’ fees,
incurred in defending against the suit.


 


(e)          Nothing herein
is intended to or shall in any manner release, diminish or impair Executive’s
rights under the Agreement, and rights, if any, that Executive may have to: (i) indemnification
or advancement of expenses under Company’s certificate of incorporation or
bylaws, or Delaware law, and (ii) coverage under directors’ and officers’
liability insurance maintained by Company or its affiliates.


 


2.             Executive
may revoke this Release of Claims in writing within seven (7) days of
signing it by sending written notice of revocation to Company’s Executive Vice
President, Human Resources.  This Release
of Claims will not take effect until eighth day after it is delivered to
Company, and only if the release is not revoked by Executive during the
revocation period.


 


3.             Executive represents and warrants that, as of the
date of this Release of Claims, he has not assigned or transferred, or
purported to assign or transfer, to any person, firm, corporation, association
or entity whatsoever any released claim. 
Executive hereby agrees to indemnify and hold Company harmless against, without
any limitation, any and all rights, claims, warranties, demands, debts,
obligations, liabilities, costs, court costs, expenses, including attorneys’
fees, causes of action or judgments based on or arising out of any such
assignment or transfer.


 


 


	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Robert P. DeRodes

  	
   

  	
  Date Signed

  



 


 


12