Exhibit 10.1


 


THE HOME DEPOT, INC.


NONEMPLOYEE DIRECTOR


DEFERRED SHARE AWARD


(<DATE>
award;          shares)


 


This Deferred Share Award (the “Award”)
is made as of the <DAY> day of <MONTH>, <YEAR> by THE HOME
DEPOT, INC., a Delaware corporation (the “Company”) to <NONEMPLOYEE DIRECTOR’S NAME>
(“Director”).


 


W  I  T  N  E  S  S
E  T  H: 


 


WHEREAS, the Company has adopted The Home
Depot, Inc. 2005 Omnibus Stock Incentive Plan (the “Plan”) which is
administered by the Leadership Development and Compensation Committee of the
Company’s Board of Directors (the “Committee”); and


 


WHEREAS, Director is a member of the Board of Directors
(the “Board”) eligible to receive grants of Awards under the Plan; and


 


WHEREAS, the Board has approved the grant to Director
of this award of deferred shares under the terms of the Plan representing
Director’s annual stock retainer for service on the Board (the “Award”)
and to promote Director’s long-term interests in the success of the Company;
and


 


WHEREAS,  to comply with
the terms of the Plan and to further the interests of the Company and Director,
the Company herein sets forth the terms of such award in writing, as follow;


 


1.                                       Stock Award. The Company hereby grants to Director an award
of              shares
of the $.05 par value common stock of the Company, subject to the conditions
set forth herein. Such shares are hereinafter referred to as the “Deferred
Shares.”


 


2.                                       Delivery of Shares. A
stock certificate representing the Deferred Shares (including any additional
Deferred Shares to which Director becomes entitled as a result of the
adjustments described in Section 3) shall be transferred to Director upon
the earlier of (i) the date on which Director ceases to be a member of the
Board by reason of his or her death, retirement or disability; or (ii) the
first anniversary of the date on which Director ceases to be a member of the
Board for any reason other than death, retirement or disability; or
(iii) the date on which the Director ceases to be a member of the Board
for any reason within six (6) months following the date of Change in
Control of the Company (as defined in Section 7). For purposes of this
Award, (i) Director shall be considered to have retired if he or she
ceases to be a member of the Board during or after the calendar year in which
he or she attains age seventy-two (72); (ii) disability shall have the
meaning set forth in Section 409A(a)(2)(C) of the Internal Revenue
Code of 1986, as amended (the “Code”) and the regulations thereunder; and
(iii) Director shall be considered to have ceased to be a member of the
Board on the date he or she incurs a “separation from service” as defined under
Code Section 409A(a)(2)(A)(i) and the regulations thereunder.


 

















 


3.                                       Adjustments for Dividends. Upon the payment of any cash dividend on shares
of common stock of the Company before the issuance of a stock certificate
representing the Deferred Shares, the number of Deferred Shares shall be
increased by the number obtained by dividing (x) the aggregate amount of the
dividend that would be payable if each Deferred Share were issued and
outstanding and entitled to dividends on the dividend payment date, by (y) the
Fair Market Value of the common stock on the dividend payment date. The number
of Deferred Shares shall also be entitled to such adjustments as are determined
by the Committee under Section 11 of the Plan.


 


4.                                       Stockholder Rights. Upon the issuance of a stock certificate
representing the Deferred Shares, Director shall have all of the rights of a
stockholder with respect to the Deferred Shares, including the right to vote
the shares and to receive all dividends or other distributions paid or made
available with respect to such shares. Before the delivery of such stock
certificate, Director shall have none of the rights of a stockholder with
respect to the Deferred Shares.


 


5.                                       Fractional Shares. The
Company shall not be required to issue any fractional shares pursuant to this
Award, and the Committee may round fractions down.


 


6.                                       Plan Provisions. In addition to the terms and conditions set forth
herein, the Award is subject to and governed by the terms and conditions set
forth in the Plan, which is hereby incorporated by reference. Unless the
context otherwise requires, capitalized terms used in this Award shall have the
meanings set forth in the Plan. In the event of any conflict between the
provisions of the Award and the Plan, the Plan shall control.


 


7.                                       Change in Control. For purposes of this award, “Change in
Control” means a change in ownership or effective control, or in the ownership
of a substantial portion of the assets of the Company, as follows:


 


(a)                                  Change in Ownership. A change in ownership of the Company shall
occur on the date that any one person, or more than one person acting as a
group, acquires ownership of stock of the Company that, together with stock
held by such person or group constitutes more than fifty percent (50%) of the
total fair market value or total voting power of the stock of the Company.
However, if any one person, or more than one person acting as a group, is considered
to own more than fifty percent (50%) of the total fair market value or total
voting power of the stock of the Company, the acquisition of additional stock
by the same persons or persons is not considered to cause a change in the
ownership of the Company or to cause a change in the effective control of the
Company. An increase in the percentage of stock owned by any one person, or
persons acting as a group, as a result of a transaction in which the Company
acquires its stock in exchange for property will be treated as an acquisition
of stock for purposes of this section. This subsection applies only when
there is a transfer of stock (or issuance of stock) and stock remains
outstanding after the transaction.


 


(b)                                 Change in Effective Control. A
change in the effective control of the Company shall occur on (i) the date
any one person, or more than one person acting as a group,


 


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acquires
(or has acquired during the twelve (12)-month period ending on the date of the
most recent acquisition by such person or persons) ownership of stock of the
Company possessing fifty percent (50%) or more of the total voting power of the
stock of the Company; or (ii) the date a majority of the members of the
Board is replaced during any twelve (12)-month period by directors whose
appointment or election is not endorsed by a majority of the members of the
Board before the date of the appointment or election.


 


(c)                                  Change in the Ownership of a
Substantial Portion of the Company’s Assets. A change in the
ownership of a substantial portion of the Company’s assets shall occur on the
date that any one person, or more than one person acting as a group acquires
(or has acquired during the twelve (12)-month period ending on the date of the
most recent acquisition by such person or persons) assets from the Company that
have a total gross fair market value equal to or more than fifty percent (50%)
of the total gross fair market value of all of the assets of the Company
immediately before such acquisition or acquisitions. For this purpose, gross
fair market value means the value of the assets of the Company, or the value of
the assets being disposed of, determined without regard to any liabilities
associated with such assets. A change in control does not occur when there is a
transfer to a related entity, as described in the Treasury Regulations under
Code Section 409A.


 


This Section 7 shall be subject to and
interpreted in accordance with applicable Treasury Regulations and other guidance
describing a “change in control event” for purposes of Code Section 409A.


 


8.                                       Miscellaneous.


 


(a)                                  Limitation of Rights. The granting of this Award shall not give
Director any rights to similar grants in future years or any right to be
retained in the employ or service of the Company or to interfere in any way
with the right of the Company to terminate Director’s services at any time or
the right of Director to terminate his or her services at any time.


 


(b)                                 Rights Unsecured. The rights of Director hereunder shall be that
of an unsecured general creditor of the Company, and Director shall not have
any security interest in any assets of the Company. Director shall have only
the Company’s unfunded, unsecured promise to issue shares of the Company’s
common stock in the future pursuant to this Award.


 


(c)                                  Nontransferability/Nonalienability. No right of Director hereunder shall be
subject to alienation, transfer, sale, assignment, pledge, attachment,
garnishment or encumbrance of any kind. Any attempt to alienate, sell,
transfer, assign, pledge or otherwise encumber any such payments whether
presently or thereafter payable shall be void.


 


(d)                                 Code Section  409A
Compliance. This Award is
intended to satisfy the requirements of Code Section 409A and shall be
construed accordingly. The Company in its discretion may delay the
issuance of Deferred Shares or take any other action it deems necessary to


 


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comply
with the requirements of Code Section 409A, including amending this Award,
without Director’s consent, in any manner it deems necessary to cause the Award
to comply with the requirements of Code Section 409A.


 


(d)                                 Limitation of Actions. Any lawsuit with respect to any matter arising
out of or relating to this Award must be filed no later than one (1) year
after the date that the Company denies the claim made by Director or any
earlier date that the claim otherwise accrues.


 


(e)                                  Offset. Company
may deduct from amounts otherwise payable under this Award all amounts owed
by Director to Company and its affiliates to the maximum extent permitted by
applicable law.


 


(f)                                    Controlling Law. This Award shall be governed by, and construed
in accordance with, the laws of the State of Georgia (without giving effect to
the choice of law principles) and any action arising out of or related thereto
shall be brought in either the United States District Court for the Northern
District of Georgia, Atlanta Division, or the Superior Court of Cobb County,
Georgia.


 


(g)                                 Severability. If any term, provision, covenant or
restriction contained in the Award is held by a court or a federal regulatory
agency of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions contained in the
Award shall remain in full force and effect, and shall in no way be affected,
impaired or invalidated.


 


(h)                                 Construction. The Award contains the entire understanding
between the parties and supersedes any prior understanding and agreements
between them representing the subject matter hereof. There are no
representations, agreements, arrangements or understandings, oral or written,
between and among the parties hereto relating to the subject matter hereof
which are not fully expressed herein.


 


(i)                                     Headings. Section and other headings contained in
the Award are for reference purposes only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of the Award
or any provision hereof.


 


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