EXHIBIT 1.1
THE HOME DEPOT, INC.
5.20% Senior Notes due 2011
5.40% Senior Notes due 2016
Underwriting Agreement
March 21, 2006
To the Representatives
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
The Home Depot, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to the several underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, the principal amount of its securities identified
in Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of May 4, 2005, between the Company and The Bank of New
York, as trustee (the "Trustee"). To the extent there are no additional
Underwriters listed on Schedule II other than you, the term Representatives as
used herein shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context requires.
Any reference herein to the Registration Statement, the Base Prospectus, any
Preliminary Prospectus, the Final Prospectus or the documents constituting the
Disclosure Package shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3, which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, any Preliminary Prospectus,
the Final Prospectus or the documents constituting the Disclosure Package, as
the case may be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Base Prospectus,
any Preliminary Prospectus, the Final Prospectus or the documents constituting
the Disclosure Package shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, any Preliminary Prospectus,
the Final Prospectus or the documents constituting the Disclosure Package, as
the case may be, deemed to be incorporated therein by reference. Certain terms
used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto) on
Form S-3, including a related Base Prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have filed
with the Commission, as part of an amendment to the Registration Statement
or pursuant to Rule 424(b), one or more Preliminary Prospectuses relating
to the Securities, each of which has previously been furnished to you. The
Company will file with the Commission a Final Prospectus relating to the
Securities in accordance with Rule 424(b). The Registration Statement, at
the Execution Time, is effective and meets the requirements set forth in
Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when
the Final Prospectus is first filed in accordance with Rule 424(b) and on
the Closing Date (as defined herein in Section 3 of this Agreement), the
Final Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on each
Effective Date, the Registration Statement did not and will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; on the Effective Date and on the Closing Date the
Indenture did or will comply in all material respects with the applicable
requirements of the Trust Indenture Act and the rules thereunder; and on
the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto) will not
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to (i) that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it being
understood and agreed that the only such information furnished by or on
behalf of any Underwriters consists of the information described as such
in Section 8 hereof.
(c) At the Execution Time, the Disclosure Package does not and at
the Closing Date (as defined in Section 3), the Disclosure Package, as
then amended or supplemented by the Company, if applicable, will not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the
Disclosure Package in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8
hereof.
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(d) (i)At the time of the most recent amendment of the Registration
Statement for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form
of prospectus) and (ii) at the time the Company or any person acting on
its behalf (within the meaning, for this clause only, of Rule 163(c)) made
any offer relating to the Securities in reliance on the exemption in Rule
163, the Company was or is (as the case may be) a Well-Known Seasoned
Issuer.
(e) At the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2)) of the Securities Act,
the Company was not and is not an Ineligible Issuer.
(f) Each Free Writing Prospectus that the Company has filed, or is
required to file, pursuant to Rule 433(d) under the Act or that was
prepared by or on behalf of or used or referred to by the Company complies
or will comply in all material respects with the requirements of the Act
and the applicable rules and regulations of the Commission thereunder.
(g) Each Issuer Free Writing Prospectus does not include any
information that conflicts with the information contained in the
Registration Statement, including any document incorporated therein and
any prospectus supplement deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus based
upon and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
Any certificate signed by any officer of the Company and delivered
to the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made on the date and at the time specified in Schedule I hereto or at
such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by
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the several Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. Delivery of the Securities shall
be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Prospectus)
to the Base Prospectus unless the Company has furnished you a copy for
your review prior to filing. The Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed in a form
approved by the Representatives with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed. The
Company will promptly advise the Representatives (1) when the Final
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (2) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed and become effective, (3) of
any request by the Commission or its staff for any amendment of the
Registration Statement or for any supplement to the Final Prospectus or
for any additional information, (4) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of any notice that would prevent its use or the institution or
threatening of any proceeding for that purpose and (5) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company
will use all reasonable efforts to prevent the issuance of any such stop
order or the occurrence of any such suspension or objection to the use of
the Registration Statement and, upon such issuance, occurrence or notice
of objection, to obtain as soon as possible the withdrawal of such stop
order or relief from such occurrence or objection, including, if
necessary, by filing an amendment to the Registration Statement or a new
registration statement and, if necessary, using all reasonable efforts to
have such amendment or new registration statement declared effective as
soon as practicable.
(b) If so requested by you, to prepare a final term sheet,
containing solely a description of final terms of the Securities and the
offering thereof, in a form approved by you and to file such term sheet
pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus
pursuant to Rule 424(b), any event occurs as a result of which the
Disclosure Package would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made at
such time not misleading, the Company will (1) notify promptly the
Representatives so that any use of the Disclosure Package may cease until
it is amended or supplemented; (2)
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amend or supplement the Disclosure Package to correct such statement or
omission; and (3) supply any amendment or supplement to you in such
quantities as you may reasonably request.
(d) If, at any time when a Final Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) under the Act) relating to the
Securities is required to be delivered under the Act, any event occurs as
a result of which the Final Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made at such time not misleading, or if it shall be
necessary to amend the Registration Statement, file a new registration
statement or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder the Company promptly will
(1) notify the Representatives of such event, (2) prepare, at its own
expense, and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement or new
registration statement which will correct such statement or omission or
effect such compliance, (3) use all reasonable efforts to have any
amendment to the Registration Statement or new registration statement
declared effective as soon as practicable in order to avoid any disruption
in use of the Final Prospectus, and (4) supply any supplemented Final
Prospectus to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will furnish to the Representatives
and counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto), and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus
and any supplement thereto as the Representatives may reasonably request.
The Company will pay the expenses of printing or other production of all
documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay
any fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where
it is not now so subject.
(h) The Company agrees that, unless it has obtained or will obtain
the prior written consent of the Representatives, and each Underwriter,
severally and not jointly,
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agrees with the Company that, unless it has obtained or will obtain, as
the case may be, the prior written consent of the Company, it has not made
and will not make any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a Free Writing Prospectus required to be filed by the Company
with the Commission or retained by the Company under Rule 433, other than
the information contained in any final term sheet prepared and filed
pursuant to Section 5(b) hereto; provided that the prior written consent
of the parties hereto shall be deemed to have been given in respect of the
Free Writing Prospectuses, if any, included in Schedule III hereto. Any
such Free Writing Prospectus consented to by the Representatives or the
Company is hereinafter referred to as a "Permitted Free Writing
Prospectus." The Company agrees that (x) it has treated and will treat, as
the case may be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus and (y) it has complied and will comply, as the case
may be, with the requirements of Rules 164 and 433 applicable to any
Permitted Free Writing Prospectus, including in respect of timely filing
with the Commission, legending and record keeping.
Each Underwriter agrees to furnish the Company with a copy of each
proposed Free Writing Prospectus to be prepared by or on behalf of such
Underwriter before its first use and not to use any Free Writing Prospectus, to
which the Company reasonably objects; provided, however, that without consent of
the Company each Underwriter may use one or more preliminary or final term
sheets relating to the Securities and the offering thereof containing customary
information.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have
been filed in the manner and within the time period required by Rule
424(b), any final term sheet contemplated by Section 5(b) hereto, and any
other material required to be filed by the Company pursuant to Rule 433(d)
under the Act, shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433; and no
stop order suspending the effectiveness of the Registration Statement or
any notice that would prevent its use shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) You shall have received an opinion, dated the Closing Date, of
the General Counsel of the Company, to the effect that:
(i) the Company has been duly incorporated under the laws of
the State of Delaware;
(ii) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act and
constitutes a legal,
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valid and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time
in effect and to general principles of equity including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether considered in a proceeding in
equity or at law); and the Securities have been duly authorized and,
when executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture;
(iii) such counsel does not know of any legal or governmental
proceedings required to be described in the Preliminary Prospectus
or Final Prospectus in which are not described as required or of any
contracts or documents of a character required to be described in
the Preliminary Prospectus or Final Prospectus or to be filed as
exhibits to any document incorporated by reference in the
Preliminary Prospectus or Final Prospectus which are not described
and filed as required;
(iv) the Registration Statement has become effective under the
Act; any required filing of the Base Prospectus, any Preliminary
Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b), has been made in the manner and within the
time period required by Rule 424(b); to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any notice that would prevent its use has
been issued, no proceedings for that purpose have been instituted or
threatened and the Registration Statement and the Final Prospectus
(other than the financial statements and other financial and
statistical information contained therein, as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; and
such counsel has no reason to believe that on the Effective Date the
Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading
or that the Final Prospectus as of its date and on the Closing Date
included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading (in each case, other than the
financial statements and other financial and statistical information
contained therein, as to which such counsel need express no
opinion);
(v) such counsel has no reason to believe that the documents
specified in a schedule to such counsel's letter, consisting of
those included in the Disclosure Package at the Execution Time or as
amended or supplemented, if applicable, as of the Closing Date
contained any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the
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statements therein, in the light of circumstances under which
they were made, not misleading;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in
the manner contemplated in this Agreement and in any Preliminary
Prospectus, the Final Prospectus or the Disclosure Package and such
other approvals (specified in such opinion) as have been obtained;
and
(viii) the execution, delivery and performance by the Company
of the Indenture, this Agreement and the issuance and sale of the
Securities, and compliance with the terms and provisions thereof,
will not result in a breach or violation of any of the material
terms and provisions of, or constitute a default under any
indenture, mortgage, deed of trust, bond, debenture, note or other
evidence of indebtedness or any material lease, contract or other
agreement or instrument known to such counsel to which the Company
or any of its subsidiaries is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is bound.
In giving the opinions required by this subsection (b) of this Section 6,
the General Counsel of the Company (i) may limit such opinion to the laws
of the State of New York, the corporate law of the State of Delaware and
the Federal laws of the United States and (ii) may rely, as to matters of
fact, upon the representations and warranties of the Company contained
herein and upon certificates of officers of the Company and of public
officials. The foregoing opinions may also be subject to such assumptions
and qualifications as are satisfactory to counsel for the Underwriters.
(c) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Indenture, the Registration
Statement, the Disclosure Package, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the President or any Vice President
and the principal financial or accounting officer of the Company, dated
the Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final
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Prospectus, the Disclosure Package and any supplements or amendments
thereto, and this Agreement and that, to the knowledge of the signers:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any notice that would prevent its use has
been issued and no proceedings for that purpose have been instituted
or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as
a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto).
(e) The Representatives shall have received a letter from KPMG LLP,
dated the Closing Date, addressed and in form and substance reasonably
satisfactory to the Representatives, confirming that such firm is
"independent" within the meaning of the Act and covering matters that are
ordinarily covered by "comfort letters" drafted in accordance with
Statement of Accounting Standards No. 72.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement and the Final
Prospectus, there shall not have been any change, or any development
involving a prospective change, in or affecting the condition (financial
or otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus the effect of which is,
in the reasonable judgment of the Representatives, so material and adverse
as to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement,
the Disclosure Package and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of
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the Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Representatives. Notice of such cancellation shall be given
to the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the location specified in Schedule I hereto, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, or in the Base Prospectus, any Preliminary Prospectus relating to the
Securities, Final Prospectus, the Disclosure Package or any Issuer Free Writing
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein.
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(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement and each person who controls the Company within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability that any Underwriter may otherwise have. The Company acknowledges that
(i) the names of Underwriters and their respective participation in the sale of
the Securities as set forth in the table of Underwriters under the first
paragraph of text under the heading "Underwriting" in the prospectus supplement
included in the Final Prospectus, (ii) the third paragraph of text under the
heading "Underwriting" in the prospectus supplement included in the Preliminary
Prospectus and the Final Prospectus relating to the initial sale of the
Securities at the initial public offering price, selling concessions and
reallowances and (iii) the tenth paragraph under the heading "Underwriting" in
the prospectus supplement included in the Preliminary Prospectus and the Final
Prospectus related to stabilization, syndicate covering transactions and penalty
bids and (iv) the last paragraph under the heading "Underwriting" in the
prospectus supplement included in the Preliminary Prospectus and the Final
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the prospectus supplement included
in the Preliminary Prospectus and the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which
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are different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b)
or (c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration
12
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by any
Preliminary Prospectus, the Final Prospectus or the Disclosure Package
(exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The Company's responsibility for the expenses to be paid by it pursuant to
Section 5 hereof and the provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
13
The Company acknowledges and agrees that the Underwriters are
acting solely in the capacity of an arm's length contractual counterparty to the
Company with respect to the offering of Securities contemplated hereby
(including in connection with determining the terms of the offering) and not as
a financial advisor or a fiduciary to, or an agent of, the Company or any other
person. Additionally, neither the Representatives nor any other Underwriter is
advising the Company or any other person as to any legal , tax, investment,
accounting or regulatory matters in any jurisdiction. The Company shall consult
with its own advisors concerning such matters and shall be responsible for
making their own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or
liability to the Company with respect thereto. Any review by the Underwriters of
the Company, the transactions contemplated hereby or other matters relating to
such transactions will be performed solely for the benefit of the Underwriters
and shall not be on behalf of the Company.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (fax no.: ▇▇▇-▇▇▇-▇▇▇▇) ▇.▇. ▇▇▇▇▇▇ Securities
Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: High Grade Syndicate Desk -
8th floor (fax no.: ▇▇▇-▇▇▇-▇▇▇▇), and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated 4 World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ at (fax no.: ▇▇▇-▇▇▇-▇▇▇▇) or, if sent to the Company, will be mailed,
delivered or telefaxed to The Home Depot, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇.▇.,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, (fax no: (▇▇▇) ▇▇▇-▇▇▇▇), to the attention of the
Chief Financial Officer and a copy sent to the General Counsel.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the
rules and regulations of the Commission promulgated thereunder.
"Base Prospectus" shall mean the base prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the
Execution Time.
14
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Disclosure Package" shall mean (i) the Base Prospectus, (ii) the
Preliminary Prospectus used most recently prior to the Execution Time,
(iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule
III hereto, and (iv) any other Free Writing Prospectus that the parties
hereto shall hereafter expressly agree in writing to treat as part of the
Disclosure Package.
"Effective Date" shall mean each date and time that the Registration
Statement and any post-effective amendment or amendments thereto relating
to the Securities became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the final prospectus supplement
relating to the Securities that was first filed pursuant to Rule 424(b)
after the Execution Time, together with the Base Prospectus.
"Free Writing Prospectus" shall mean a free writing prospectus, as
defined in Rule 405 of the Act.
"Ineligible Issuer" shall mean an ineligible issuer, as defined in
Rule 405 of the Act.
"Issuer Free Writing Prospectus" shall mean an issuer free writing
prospectus, as defined in Rule 433 that the Issuer has filed or is
required to file under Rule 433(d) under the Act.
"Material Adverse Effect" shall mean the material adverse effect on
the Company and its subsidiaries taken as a whole.
"Preliminary Prospectus" shall mean any preliminary form of the
prospectus supplement to the Base Prospectus referred to in paragraph 1(a)
above which relates to the Securities and is used prior to the filing of
the Final Prospectus, together with the Base Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements and any prospectus supplement relating to the Securities that
is filed with the Commission pursuant to Rule 424(b) and deemed part of
such registration statement pursuant to Rule 430B, as
15
amended on the most recent Effective Date and, in the event any
post-effective amendment thereto becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended.
"Rule 158," "Rule 163," "Rule 164," "Rule 405," "Rule 415," "Rule
424" and "Rule 433" refer to such rules under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
"Well-Known Seasoned Issuer" shall mean a well-known seasoned
issuer, as defined in Rule 405.
16
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
THE HOME DEPOT, INC.
By: /s/ ▇▇▇▇▇ ▇. Tome
_________________________________
Name: ▇▇▇▇▇ ▇. Tome
Title: Executive Vice President,
Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Director
By: ▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
By: /s/ R. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________
Name: R. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
SCHEDULE I
Underwriting Agreement dated: March 21, 2006
Registration Statement No. 333-124699
Representative(s): ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Title, Purchase Price and Description of Securities:
Title: 5.20% Senior Notes due 2011 Title: 5.40% Senior Notes due 2016
Principal amount: $ 1,000,000,000 Principal amount: $ 3,000,000,000
Purchase price (include accrued Purchase price (include accrued
interest or amortization, if interest or amortization, if
any): 99.598% any): 99.061%
Redemption provisions: Redemption provisions:
Optional redemption at the Optional redemption at the
option of the Company as described option of the Company as described
under the heading "Description at under the heading "Description at
the Notes" in the Prospectus the Notes" in the Prospectus
Supplement including the Final Supplement including the Final
Prospectus. Prospectus.
Closing Date, Time and Location:
March 24, 2006 at 9:00 a.m. at the
offices of King & Spalding at ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Type of Offering: Non-delayed
SCHEDULE II
Principal Amount Principal Amount
of Securities to of Securities to
be Purchased be Purchased
(5.20% Senior (5.40% Senior
Notes due 2011) Notes due 2016)
Underwriters
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated...................... $ 350,000,000 $ 1,050,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc............................. 325,000,000 975,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 325,000,000 975,000,000
------------------ ------------------
Total......................................... $ 1,000,000,000 $ 3,000,000,000
================== ==================
SCHEDULE III
Final Term Sheet
March 21, 2006
THE HOME DEPOT, INC.
$1,000,000,000 5.20% SENIOR NOTES DUE 2011
$3,000,000,000 5.40% SENIOR NOTES DUE 2016
ISSUER: The Home Depot, Inc.
TITLE OF SECURITIES: 5.20% Senior Notes due March 1, 2011 (the
"Notes due 2011") 5.40% Senior Notes due
March 1, 2016 (the "Notes due 2016")
TRADE DATE: ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ DATE (T+3): ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ DATE: Notes due 2011: March 1, 2011
Notes due 2016: ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ PRINCIPAL AMOUNT Notes due 2011: $1,000,000,000
OFFERED: Notes due 2016: $3,000,000,000
PRICE TO PUBLIC (ISSUE PRICE): Notes due 2011: 99.948% plus accrued
interest, if any, from March 24, 2006
Notes due 2016: 99.511% plus accrued
interest, if any, from March 24, 2006
PRICE TO THE HOME DEPOT: Notes due 2011: 99.598%
Notes due 2016: 99.061%
INTEREST RATE: Notes due 2011: 5.20% per annum
Notes due 2016: 5.40% per annum
INTEREST PAYMENT DATES: Notes due 2011: Semi-annually on each
September 1 and March 1, commencing September
1, 2006.
Notes due 2016: Semi-annually on each
September 1 and March 1, commencing September
1, 2006.
OPTIONAL REDEMPTION: Notes due 2011: Make-whole call at any time
at the greater of 100% or discounted present
value at Treasury Rate plus 10 basis
points. Notes due 2016: Make-whole call at
any time at the greater of 100% or
discounted present value at Treasury Rate
plus 15
basis points.
JOINT BOOKRUNNERS: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇.▇.
▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE
SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST, YOU
SHOULD READ THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER
AND THIS OFFERING. YOU MAY GET THESE DOCUMENTS FOR FREE BY VISITING ▇▇▇▇▇ ON THE
SEC WEB SITE AT ▇▇▇.▇▇▇.▇▇▇. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR ANY
DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS IF
YOU REQUEST IT BY CALLING (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TOLL-FREE ▇-(▇▇▇) ▇▇▇-▇▇▇▇
(INSTITUTIONAL INVESTORS) OR ▇-(▇▇▇) ▇▇▇-▇▇▇▇ (RETAIL INVESTORS) (ii) ▇.▇.
▇▇▇▇▇▇ SECURITIES INC. COLLECT ▇-(▇▇▇) ▇▇▇-▇▇▇▇ OR (iii) ▇▇▇▇▇▇▇ LYNCH, PIERCE,
▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED TOLL-FREE ▇-(▇▇▇) ▇▇▇-▇▇▇▇.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO
THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES
WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA
BLOOMBERG OR ANOTHER EMAIL SYSTEM.