DEFERRED SHARE AWARD
([DATE] Award For NUMBER Deferred Shares)
This Deferred Share Award is made to [U.S. EXECUTIVE OFFICER NAME] this day of , 20 , by THE HOME DEPOT, INC., a Delaware corporation.
W I T N E S S E T H:
WHEREAS, the Company has adopted The Home Depot, Inc. 2005 Omnibus Stock Incentive Plan which is administered by the Committee; and
WHEREAS, Executive is an officer and employee of the Company eligible to receive an award of Deferred Shares under the Plan; and
WHEREAS, the Committee conducted its annual review of the Executive’s performance and compensation [ADD FOLLOWING FOR CEO AWARDS: and the independent members of the Company’s Board of Directors approved] and approved equity awards for the Executive at its meeting,
NOW, THEREFORE, the Committee makes an award of Deferred Shares under the Plan to Executive pursuant to the following terms and conditions:
1. Definitions. As used herein, the following terms shall be defined as set forth below:
(a) “Award” means the Deferred Share Award to Executive, as set forth herein, and as may be amended as provided herein.
(b) “Board” means the Company’s Board of Directors.
(c) “Cause” means that Executive has been convicted of a felony involving theft or moral turpitude, or engaged in conduct that constitutes willful gross neglect or willful gross misconduct with respect to Executive’s employment duties which results in material economic harm to the Company; provided, however, that for purposes of determining whether conduct constitutes willful gross misconduct, no act on Executive’s part shall be considered “willful” unless it is done by Executive in bad faith and without reasonable belief that his action was in the best interests of the Company; Cause shall not be deemed to exist for purposes of this Award unless: (1) a determination that Cause exists is made and approved by the Board, (2) Executive is given at least thirty (30) days’ written notice of the Board meeting called to make such determination, and (3) Executive and his legal counsel are given the opportunity to address such meeting.
(d) “Change in Control” means the occurrence of any of the following events: (1) any “person” (as defined in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), excluding for this purpose, (A) the Company or any subsidiary of the Company, or (B) any employee benefit plan of the Company or any subsidiary of the
Company, or any person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan which acquires beneficial ownership of voting securities of the Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than twenty percent (20%) of the combined voting power of the Company’s then outstanding securities; provided, however, that no Change in Control will be deemed to have occurred as a result of a change in ownership percentage resulting solely from an acquisition of securities by the Company; or (2) during any two (2) consecutive years (not including any period beginning before the Grant Date, individuals who at the beginning of such two (2) year period constitute the Board and any new director (except for a director designated by a person who has entered into an agreement with the Company to effect a transaction described elsewhere in this definition of Change in Control) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved cease for any reason to constitute at least a majority of the Board; or (3) consummation of a reorganization, merger or consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), in each case, unless, following such Business Combination, all or substantially all of the individuals and entities who were the beneficial owners of outstanding voting securities of the Company immediately before such Business Combination beneficially own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the company resulting from such Business Combination (including, without limitation, a company which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately before such Business Combination of the outstanding voting securities of the Company; or (4) approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.