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.
6
(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
7
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,
8
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
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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
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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.
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(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
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