AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 22, 2001
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE HOME DEPOT, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-3261426
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
2455 PACES FERRY ROAD,
ATLANTA, GEORGIA 30339
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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THE HOME DEPOT, INC.
DEFERRED STOCK UNITS PLAN AND AGREEMENT
(FULL TITLE OF THE PLAN)
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FRANK L. FERNANDEZ, ESQ.
EXECUTIVE VICE PRESIDENT & GENERAL COUNSEL
THE HOME DEPOT, INC.
2455 PACES FERRY ROAD
ATLANTA, GEORGIA 30339-4024
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(770) 433-8211
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
LAURENCE B. APPEL, ESQ.
THE HOME DEPOT, INC.
2455 PACES FERRY ROAD, BLDG. C-20
ATLANTA, GEORGIA 30339-4024
(770) 433-8211
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CALCULATION OF REGISTRATION FEE
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Title Of Each Amount To Be Proposed Maximum Proposed Maximum Amount Of
Class Of Securities To Be Registered Offering Price Per Aggregate Registration
Registered Share(1) Offering Price(1) Fee
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Common Stock
($.05 par value) .............. 250,000 $40.62 $10,155,000 $2,539
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(1) Estimated solely for the purpose of calculating the registration fee
based on $38.375, the average of the high and low prices of the common
stock of the Registrant on the New York Stock Exchange on October 15,
2001 pursuant to Rules 457(c) and 457(h) under the Securities Act of
1933, as amended.
EXPLANATORY NOTE
In accordance with the Note to Part I of Form S-8, the information
specified by Part I has been omitted from this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by The Home Depot, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") and
are hereby incorporated by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the year ended
January 28, 2001, as filed with the Commission pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended
(the "1934 Act");
(2) The Registrant's Quarterly Reports on Form 10-Q for the
quarter ended April 29, 2001 and the quarter ended July 29,
2001, as filed with the Commission pursuant to Section 13 of
the 1934 Act; and
(3) The section entitled "Description of Common Stock" in the
Registrant's Report on Form 8-A, filed with the Commission
pursuant to the 1934 Act.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part thereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Stock covered hereby has been passed upon
for The Home Depot, Inc. by Laurence B. Appel, Esq., Senior Vice President -
Legal. Mr. Appel owns shares of Common Stock, both directly and as a participant
in various employee benefit plans. However, he is not eligible to participate in
the Deferred Stock Units Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article IV, Section 4, of the Registrant's Amended and Restated By-Laws
provides that
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to the fullest extent permitted by Delaware law, each former, present or future,
director, officer, employee or agent of the Registrants, and each person who may
serve at the request of the Registrants as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise shall be indemnified by the Registrant in all events.
Article NINTH of the Registrant's Restated Certificate of Incorporation
provides that to the fullest extent permitted by Delaware law, no director of
the Registrant shall be liable to the Registrants or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Registrant
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
Section 145 of the Delaware General Corporation Law sets forth the
applicable terms, conditions and limitations governing the indemnification of
officers, directors and other persons.
In addition, the Registrant maintains officers' and directors'
liability insurance for the benefit of its officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as a part of this Registration
Statement:
Exhibit Description
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5 Opinion of Laurence B. Appel
23.1 Consent of KPMG LLP, Independent Certified Public Accountants
23.2 Consent of Laurence B. Appel (included in Exhibit 5)
24 Powers of Attorneys from Directors
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the SEC by the
Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference into this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from the registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on this 18th day of
October, 2001.
THE HOME DEPOT, INC.
/s/ Robert L. Nardelli
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Robert L. Nardelli
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on this 18th day of October, 2001.
Signature Title
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/s/ Bernard Marcus
-------------------------------- Chairman of the Board
Bernard Marcus
/s/ Robert L. Nardelli President, Chief Executive
-------------------------------- Officer and Director
Robert L. Nardelli (Principal Executive Officer)
/s/ Carol B. Tome
-------------------------------- Executive Vice President and
Carol B. Tome Chief Financial Officer
(Principal Financial & Accounting Officer)
* Director
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Gregory D. Brenneman
* Director
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Richard H. Brown
* Director
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John L. Clendenin
* Director
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Berry R. Cox
* Director
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William S. Davila
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Signature Title
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Director
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Claudio X. Gonzalez
* Director
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Milledge A. Hart, III
* Director
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Bonnie G. Hill
* Director
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Kenneth G. Langone
* Director
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Roger S. Penske
* The undersigned, by signing his name hereto, does hereby sign this
Registration Statement on behalf of each of the above-indicated
directors of the Registrant pursuant to powers of attorney, executed on
behalf of each such director.
By: /s/ Frank L. Fernandez
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Frank L. Fernandez, Attorney-in-Fact
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EXHIBIT INDEX
Exhibit Description
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5 Opinion of Laurence B. Appel
23.1 Consent of KPMG LLP, Independent Certified Public Accountants
23.2 Consent of Laurence B. Appel (included in Exhibit 5)
24 Powers of Attorneys from Directors
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