As filed with the Securities and Exchange Commission on November 12, 2003
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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 number)
2455 PACES FERRY ROAD N.W.
ATLANTA, GEORGIA 30339-4024
(Address of Principal Executive Offices)
(770) 433-8211
(Registrant's telephone number, including area code)
THE HOME DEPOT, INC. RESTATED AND AMENDED
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
FRANK L. FERNANDEZ
EXECUTIVE VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
THE HOME DEPOT, INC.
2455 PACES FERRY ROAD N.W.
ATLANTA, GEORGIA 30339-4024
(770) 433-8211
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
LAURA LYNN SMITH
THE HOME DEPOT, INC.
2455 PACES FERRY ROAD N.W.
ATLANTA, GEORGIA 30339-4024
(770) 433-8211
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to be to be Price Offering Registration
Name of Plan Registered Registered Per Share(1) Price(1) Fee(1)
------------------------ ----------------- ------------- ------------- ------------ ------------
The Home Depot, Inc. Common Stock, 15,000,000 $36.85 $552,750,000 $44,717.48
Restated and Amended $0.05 par value Shares
Employee Stock Purchase per share
Plan (the "ESPP")
(1) In accordance with Rule 457(h) and Rule 457(c) the aggregate offering
price and the amount of the registration fee are computed on the basis
of $36.85, the average of the high and low prices reported in the New
York Stock Exchange on November 11, 2003. Also registered hereunder
are such additional number of shares of Common Stock, presently
indeterminable, as may be necessary to satisfy the antidilution
provisions of the Plan to which this Registration Statement relates.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This Registration Statement is filed pursuant to General
Instruction E to Form S-8 by The Home Depot, Inc., a Delaware corporation (the
"Registrant"), to register 15,000,000 shares of common stock, par value $0.05
per share (the "Common Stock"), which shares are in addition to those
previously registered on Registration Statements on Form S-8 (File Nos.
333-16695 and 333-56724) filed with the Securities and Exchange Commission (the
"Commission") on November 25, 1996 and March 8, 2001, respectively, for
issuance pursuant to The Home Depot, Inc. Restated and Amended Employee Stock
Purchase Plan (the "ESPP"). The Registrant incorporates herein by this
reference the contents of such previously filed Registration Statements.
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 Registrant hereby incorporates by reference the documents
listed in (a) through (c) below. In addition, all documents subsequently filed
by the Registrant with the Commission pursuant to Section 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
(prior to filing of a Post-Effective Amendment that indicates that all
securities offered have been sold or that deregisters all securities then
remaining unsold) will be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
(1) The Registrant's Annual Report on Form 10-K for the
year ended February 2, 2003, as filed with the
Commission pursuant to Section 13 of the Exchange
Act;
(2) The Registrant's Quarterly Reports on Form 10-Q for
the quarters ended May 4, 2003 and August 3, 2003,
as filed with the Commission pursuant to Section 13
of the Exchange Act; and
(3) The section entitled "Description of Common Stock"
in Registrant's Report on Form 8-A, filed with the
Commission pursuant to the Exchange Act.
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 Laura Lynn Smith, Director-Legal. Ms.
Smith does not own any shares of Common Stock, but is eligible to participate
in the ESPP.
ITEM 6. Indemnification of Directors and Officers
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 Registrant 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 General Corporation Law of the State of
Delaware sets forth the applicable terms, conditions and limitations governing
the indemnification of officers, directors and other persons.
Article V of the Registrant's By-Laws, as amended and
restated effective May 29, 2003, provides that the Registrant shall indemnify
and hold harmless to the fullest extent permitted by Delaware law, each former,
present or future director, officer, employee or agent of the Registrant, and
each person who may serve at the request of the Registrant as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, against all expenses, liability and loss (including attorneys' fees)
reasonably incurred by such person. The Registrant shall pay the expenses
(including attorneys' fees) incurred by an officer or
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director of the Registrant in defending any proceeding in advance of its final
disposition, upon receipt of an undertaking by the director or officer to repay
all amounts advanced if it is ultimately determined that such director or
officer is not entitled to be indemnified. The Registrant may advance payment
of expenses incurred by former directors and officers or other employees and
agents of the Registrant on such terms and conditions, as the Registrant deems
appropriate.
In addition, the Registrant maintains officers' and
directors' liability insurance for the benefit of its officers and directors.
ITEM 8. Exhibits.
The Exhibit Index attached to this Registration Statement is
incorporated herein by reference.
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 of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any
facts or events arising after the effective date of this 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
this Registration Statement;
(iii) To include any material
information with respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such information in
this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective amendment will be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time will be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered that 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 any employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement will be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time will 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
Commission 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 of
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 Atlanta, Georgia on the 11th day of November, 2003.
THE HOME DEPOT, INC
By:
/s/ Robert L. Nardelli
-----------------------------------------------
Robert L. Nardelli
Chairman, President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
under the heading "Signature" constitutes and appoints Robert L. Nardelli and
Frank L. Fernandez as his or her true and lawful attorney-in-fact, each acting
alone, with full power of substitution and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities to sign any or
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, granting unto said
attorney-in-fact full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as
fully for all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact, or his or her
substitute, acting alone, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Robert L. Nardelli Chairman, President and November 11, 2003
------------------------------------ Chief Executive Officer
Robert L. Nardelli (Principal Executive Officer)
/s/ Carol B. Tome Executive Vice President and Chief November 12, 2003
------------------------------------ Financial Officer (Principal Financial Officer
Carol B. Tome and Principal Accounting Officer)
Director
------------------------------------ ------------------
Gregory D. Brenneman
/s/ Richard H. Brown Director November 11, 2003
------------------------------------
Richard H. Brown
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Director
------------------------------------ ------------------
John L. Clendenin
/s/ Berry R. Cox Director November 10, 2003
------------------------------------
Berry R. Cox
/s/ William S. Davila Director November 10, 2003
------------------------------------
William S. Davila
/s/ Claudio X. Gonzalez Director November 10, 2003
------------------- ----------------
Claudio X. Gonzalez
/s/ Richard A. Grasso Director November 10, 2003
------------------------------------
Richard A. Grasso
/s/ Milledge A. Hart, III Director November 11, 2003
------------------------------------
Milledge A. Hart, III
/s/ Bonnie G. Hill Director November 11, 2003
------------------------------------
Bonnie G. Hill
Director
------------------------------------ -----------------
Kenneth G. Langone
Director
------------------------------------ -----------------
Roger S. Penske
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------
5 Opinion of Laura Lynn Smith, Esq. as to the legality of the
securities being registered.
10.1 The Home Depot, Inc. Restated and Amended Employee Stock Purchase
Plan.(1)
23.1 Consent of KPMG LLP.
23.2 Consent of Laura Lynn Smith, Esq. (included in Exhibit 5).
24 Powers of Attorney (included on Signature Page).
---------------
(1) Incorporated by reference to Exhibit 10.5 to the Registrant's Form
10-K for the fiscal year ended January 28, 2001.
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