THE HOME DEPOT
ESOP RESTORATION PLAN
THE HOME DEPOT
ESOP RESTORATION PLAN
Effective as of the 1st day of January, 1994, The Home Depot,
Inc., a corporation duly organized and existing under the laws of
the State of Delaware (the "Controlling Company"), hereby
establishes The Home Depot ESOP Restoration Plan.
BACKGROUND AND PURPOSE
A. Background. The Controlling Company sponsors The Home
Depot Employee Stock Ownership Plan ("the "ESOP"), an employee
stock ownership plan qualified under Sections 401(a) and 4975(e)(7)
of the Internal Revenue Code of 1986, as amended (the "Code").
B. General Purpose. The primary purpose of the Plan is to
provide additional retirement income to certain key executive
employees of the Controlling Company and its affiliates that are
participating companies in the Plan, in order to reduce the impact
of certain provisions of the Code that limit the maximum benefits
that may accrue under the ESOP. In particular, the Controlling
Company intends for the Plan to at least partially offset the
effects of the maximum compensation limitation under Code Section
401(a)(17), by providing the amount of supplemental retirement
income specified in the Plan.
C. Type of Plan. The Plan constitutes an unfunded,
nonqualified deferred compensation plan that benefits certain
designated employees who are within a select group of key
management or highly compensated employees.
STATEMENT OF AGREEMENT
To establish the Plan with the purposes and goals as
hereinabove described, the Controlling Company hereby sets forth
the terms and provisions as follows:
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS. . . . . . . . . . . . . . . . . . . . 1
1.1 Account. . . . . . . . . . . . . . . . . . . . . . 1
1.2 Administrative Committee . . . . . . . . . . . . . 1
1.3 Allocation Date. . . . . . . . . . . . . . . . . . .1
1.4 Beneficiary. . . . . . . . . . . . . . . . . . . . 1
1.5 Board. . . . . . . . . . . . . . . . . . . . . . . 1
1.6 Code . . . . . . . . . . . . . . . . . . . . . . . 1
1.7 Company. . . . . . . . . . . . . . . . . . . . . . 1
1.8 Company Stock. . . . . . . . . . . . . . . . . . . .1
1.9 Controlled Group . . . . . . . . . . . . . . . . . 1
1.10 Controlling Company. . . . . . . . . . . . . . . . 1
1.11 Disability . . . . . . . . . . . . . . . . . . . . .2
1.12 Effective Date . . . . . . . . . . . . . . . . . . 2
1.13 Eligible Employee. . . . . . . . . . . . . . . . . .2
1.14 Employee . . . . . . . . . . . . . . . . . . . . . .2
1.15 ERISA. . . . . . . . . . . . . . . . . . . . . . . 2
1.16 ESOP . . . . . . . . . . . . . . . . . . . . . . . .2
1.17 Participant. . . . . . . . . . . . . . . . . . . . 2
1.18 Participating Company. . . . . . . . . . . . . . . .2
1.19 Plan . . . . . . . . . . . . . . . . . . . . . . . 2
1.20 Plan Year. . . . . . . . . . . . . . . . . . . . . 3
1.21 Section 401(a)(17) Limitation. . . . . . . . . . . 3
1.22 Stock Unit . . . . . . . . . . . . . . . . . . . . .3
1.23 Surviving Spouse . . . . . . . . . . . . . . . . . 3
1.24 Trust or Trust Agreement . . . . . . . . . . . . . 3
1.25 Trustee. . . . . . . . . . . . . . . . . . . . . . 3
1.26 Trust Fund . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II ELIGIBILITY AND PARTICIPATION. . . . . . . . . . . .4
2.1 Eligibility. . . . . . . . . . . . . . . . . . . . 4
2.2 Participation. . . . . . . . . . . . . . . . . . . .4
2.3 Cessation of Eligibility and Participation . . . . 4
ARTICLE III PARTICIPANTS' ACCOUNTS; BENEFITS AND CREDITING . . 5
3.1 Participants' Accounts . . . . . . . . . . . . . . 5
(a) Establishment of Accounts. . . . . . . . . .5
(b) Nature of Contributions and Accounts . . . .5
3.2 Benefit Amount . . . . . . . . . . . . . . . . . . 5
(a) Account Balance. . . . . . . . . . . . . . 5
(b) Amount Credited. . . . . . . . . . . . . . 5
(c) Crediting of Stock Units . . . . . . . . . 6
(d) Cash Dividends . . . . . . . . . . . . . . .6
(e) Adjustments for Stock Dividends and Splits .6
(f) Value of Account . . . . . . . . . . . . . .6
(g) Value of Company Stock . . . . . . . . . . .7
3.3 Vesting. . . . . . . . . . . . . . . . . . . . . . 7
3.4 Notice to Participants of Account Balances . . . . .7
3.5 Good Faith Valuation Binding . . . . . . . . . . . .8
3.6 Errors and Omissions in Accounts . . . . . . . . . .8
ARTICLE IV PAYMENT OF ACCOUNT BALANCES . . . . . . . . . . . .9
4.1 Benefit Payments . . . . . . . . . . . . . . . . . 9
(a) General Rule Concerning Benefit Payments . .9
(b) Timing of Distribution . . . . . . . . . . .9
4.2 Form of Distribution . . . . . . . . . . . . . . . 9
4.3 Beneficiary Designation. . . . . . . . . . . . . . 10
(a) General. . . . . . . . . . . . . . . . . . 10
(b) No Designation or Designee Dead or Missing 10
4.4 Taxes. . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE V CLAIMS . . . . . . . . . . . . . . . . . . . . . . 11
5.1 Claims . . . . . . . . . . . . . . . . . . . . . . 11
(a) Initial Claim. . . . . . . . . . . . . . . 11
(b) Appeal . . . . . . . . . . . . . . . . . . 11
(c) Satisfaction of Claims . . . . . . . . . . 11
ARTICLE VI SOURCE OF FUNDS; TRUST . . . . . . . . . . . . . . 12
6.1 Source of Funds. . . . . . . . . . . . . . . . . . 12
6.2 Trust. . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VII ADMINISTRATIVE COMMITTEE . . . . . . . . . . . . . 13
7.1 Action . . . . . . . . . . . . . . . . . . . . . . 13
7.2 Rights and Duties. . . . . . . . . . . . . . . . . 13
7.3 Compensation, Indemnity and Liability. . . . . . . 14
ARTICLE VIII AMENDMENT AND TERMINATION . . . . . . . . . . . 15
8.1 Amendments . . . . . . . . . . . . . . . . . . . . 15
8.2 Termination of Plan. . . . . . . . . . . . . . . . 15
ARTICLE IX MISCELLANEOUS. . . . . . . . . . . . . . . . . . . 16
9.1 Taxation . . . . . . . . . . . . . . . . . . . . . 16
9.2 No Employment Contract . . . . . . . . . . . . . . 16
9.3 Headings . . . . . . . . . . . . . . . . . . . . . 16
9.4 Gender and Number. . . . . . . . . . . . . . . . . 16
9.5 Assignment of Benefits . . . . . . . . . . . . . . 16
9.6 Legally Incompetent. . . . . . . . . . . . . . . . 16
9.7 Governing Law. . . . . . . . . . . . . . . . . . . 17
ARTICLE I
DEFINITIONS
For purposes of the Plan, the following terms, when used with
an initial capital letter, shall have the meaning set forth below
unless a different meaning plainly is required by the context.
1.1 Account shall mean, with respect to a Participant or his
Beneficiary, the total dollar amount, value and/or number of Stock
Units evidenced by the last balance posted in accordance with the
terms of the Plan to the account record established for such
Participant or Beneficiary.
1.2 Administrative Committee shall mean the administrative
committee of the ESOP, or such other committee as shall be
appointed by the Board to administer the Plan.
1.3 Allocation Date shall mean the last day of each Plan
Year.
1.4 Beneficiary shall mean, with respect to a Participant,
the person(s) designated or otherwise determined in accordance with
Section 4.3 to receive any death benefits that may be payable under
the Plan upon the death of the Participant.
1.5 Board shall mean the Board of Directors of the
Controlling Company. In the event the Plan provides that the
Controlling Company shall act, such action shall be taken by the
Board unless the Board has authorized and directed the
Administrative Committee or other person or entity to act in its
stead.
1.6 Code shall mean the Internal Revenue Code of 1986, as
amended.
1.7 Company shall mean, collectively, the Controlling Company
and each of the other Participating Companies.
1.8 Company Stock shall mean the $.05 par value per share
voting common stock of the Controlling Company.
1.9 Controlled Group shall mean all of the companies that are
either (i) members of the same controlled group of corporations
(within the meaning of Code Section 414(b)), or (ii) under common
control (within the meaning of Code Section 414(c)), with the
Controlling Company.
1.10 Controlling Company shall mean The Home Depot, Inc., a
Delaware corporation with its principal place of business in
Atlanta, Georgia.
1.11 Disability shall mean, with respect to a Participant, his
disability as provided under the terms of the ESOP.
1.12 Effective Date shall mean January 1, 1994, the date that
the Plan initially shall be effective; provided, for purposes of
ERISA, the Plan shall be established on the date it is approved by
the Board.
1.13 Eligible Employee shall mean, for a Plan Year, an
individual:
(a) Who is a member of a select group of highly
compensated or key management Employees of the Company;
(b) Who participates in and receives allocations under
the ESOP for such Plan Year; and
(c) Whose Compensation for such Plan Year exceeds the
Section 401(a)(17) Limitation.
The Administrative Committee shall determine, from time to time and
in its sole discretion, which Employees satisfy said criteria, and
the Administrative Committee's determination shall be binding.
1.14 Employee shall mean an individual who is considered an
employee of the Company for purposes of the ESOP.
1.15 ERISA shall mean the Employee Retirement Income Security
Act of 1974, as amended.
1.16 ESOP shall mean The Home Depot Employee Stock Ownership
Plan, an employee stock ownership plan qualified under Code
Sections 401(a) and 4975(e)(7) and sponsored by the Controlling
Company, and all amendments thereto.
1.17 Participant shall mean any individual who has been
admitted to, and has not been removed from, participation in the
Plan pursuant to the provisions of Article II.
1.18 Participating Company shall mean, individually, the
Controlling Company and each of its affiliates that is a
participating company in the ESOP, unless the Board or
Administrative Committee has specifically excluded such a company
from participation in the Plan.
1.19 Plan shall mean The Home Depot ESOP Restoration Plan as
contained herein and all amendments hereto. The Plan is intended
to be an unfunded, nonqualified deferred compensation plan covering
certain designated Employees who are within a select group of key
management or highly compensated Employees.
1.20 Plan Year shall mean the 12-consecutive-month period
ending on December 31 of each year.
1.21 Section 401(a)(17) Limitation shall mean the limitation
imposed under Code Section 401(a)(17) that establishes, subject to
cost-of-living adjustments, a maximum amount of compensation that
can be taken into account for any year under a retirement plan
qualified under Code Section 401(a).
1.22 Stock Unit shall mean an accounting entry on a
Participating Company's books, that is equal in value at any time
to the current fair market value of one share of Company Stock, and
that represents an unsecured obligation of the Participating
Company to pay that amount to a Participant in accordance with the
terms of the Plan. A Stock Unit shall not carry any voting,
dividend or other similar rights and shall not constitute an option
or any other right to acquire any equity securities of the Company.
1.23 Surviving Spouse shall mean, with respect to a
Participant, the person who is treated as married to such
Participant under the laws of the state in which the Participant
resides. The determination of a Participant's Surviving Spouse
shall be made as of the date of such Participant's death.
1.24 Trust or Trust Agreement shall mean the separate
agreement or agreements between the Participating Companies and the
Trustee governing the creation of the Trust Fund, and all
amendments thereto.
1.25 Trustee shall mean the party or parties so designated
from time to time pursuant to the terms of the Trust Agreement.
1.26 Trust Fund shall mean the total amount of Company Stock,
cash and other property held by the Trustee (or any nominee
thereof) at any time under the Trust Agreement.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility.
Each Eligible Employee for a Plan Year shall be eligible
to participate in the Plan for such Plan Year.
2.2 Participation.
Each Eligible Employee for a Plan Year shall actively
participate in the Plan (that is, shall be an active Participant)
for such Plan Year only if (i) his employment, with the Company,
all other members of the Controlled Group and any other company
that the Administrative Committee designates for purposes of the
Plan as an affiliate of the Company, does not terminate prior to
the March 1 succeeding such Plan Year, and (ii) he completes such
forms and provides such data, if any, as may be required by the
Administrative Committee as a precondition of participation in the
Plan. Such forms and data may include, without limitation, the
Eligible Employee's acceptance of the terms and conditions of the
Plan and the designation of a Beneficiary to receive any death
benefits payable hereunder.
2.3 Cessation of Eligibility and Participation.
If during a Plan Year an individual ceases to satisfy any
of the criteria that qualified him as an Eligible Employee, or if
his employment, with the Company, all members of the Controlled
Group and any other company that the Administrative Committee
designates for purposes of the Plan as an affiliate of the Company,
ceases for any reason prior to the March 1 immediately succeeding
such Plan Year, his active participation (that is, his status as an
active Participant) in the Plan shall cease commencing with and for
such Plan Year; provided, such employee shall remain an inactive
Participant in the Plan until the earlier of (i) the date the full
value of his Account (if any) is forfeited and/or paid in
accordance with the terms of the Plan, or (ii) the date he again
becomes an Eligible Employee and qualifies under Section 2.2 to
actively participate in the Plan. During the time that an employee
is an inactive Participant in the Plan, his Account shall continue
to be adjusted for cash dividends and changes in Company Stock as
provided in Sections 3.2(d) and (e).
ARTICLE III
PARTICIPANTS' ACCOUNTS; BENEFITS AND CREDITING
3.1 Participants' Accounts.
(a) Establishment of Accounts. The Administrative
Committee shall establish and maintain, on behalf of each
Participant, an Account. Each Account shall be credited with the
amount of Stock Units described in Section 3.2. Each Account of a
Participant shall be maintained until the value thereof has been
forfeited and/or paid to or on behalf of such Participant or his
Beneficiary.
(b) Nature of Contributions and Accounts. The Stock
Units credited to a Participant's Account shall be represented
solely by bookkeeping entries, and no moneys or other assets shall
actually be set aside for such Participant. Except as provided in
Article VI, all payments to a Participant under the Plan shall be
made from the general assets of the Company. The Administrative
Committee or the Board shall allocate the total liability to pay
benefits under the Plan among the Participating Companies in such
manner and amount as the Administrative Committee or the Board (as
applicable) in its sole discretion deems appropriate. Any assets
which may be acquired by a Participating Company in anticipation of
its obligations under the Plan shall be part of the general assets
of such Participating Company. A Participating Company's
obligation to pay benefits under the Plan constitutes a mere
promise of such Participating Company to pay such benefits, and a
Participant or Beneficiary shall be and remain no more than an
unsecured, general creditor of such Participating Company.
3.2 Benefit Amount.
(a) Account Balance. A Participant's accrued benefit
under the Plan at any time shall be equal to the value of his
Account balance; provided, as described in Section 3.3 and Article
IV, only the portion of a Participant's Account balance that is
vested shall be payable to him.
(b) Amount Credited. For each Plan Year, each active
Participant shall have credited to his Account an amount equal to
the difference between:
(i) the value of the shares of Company Stock that
would have been allocated to his account under the ESOP as a
result of Company contributions (exclusive of forfeitures)
actually made to the ESOP for such Plan Year, if the maximum
dollar limit applied to the definition of "compensation" under
the ESOP was $1 million rather than the Section 401(a)(17)
Limitation; and
(ii) the value of the shares of Company Stock
actually allocated to his account under the ESOP for such Plan
Year as a result of Company contributions actually made to the
ESOP for such Plan Year;
provided, the value of the shares of Company Stock to be credited
to a Participant's Account under this section for a Plan Year, when
aggregated with the value of Company Stock and other assets
allocated to the Participant's account under the ESOP for such Plan
Year as a result of (i) Company contributions actually made to the
ESOP for such Plan Year and (ii) forfeitures allocated for such
Plan Year, may not exceed the dollar or percentage limits
established for annual additions under Code Section 415 (that is,
for 1994, $30,000 or 25 percent of Form W-2 compensation) and, to
the extent such maximum limit would be exceeded, the amount
otherwise to be credited to a Participant's Account hereunder shall
be reduced.
(c) Crediting of Stock Units. The amount determined
pursuant to subsection (b) hereof for a Participant for a Plan Year
shall be credited to his Account as of the March 1 immediately
succeeding such Plan Year and shall be expressed in terms of whole
and fractional Stock Units. The number of Stock Units credited to
a Participant's Account for a Plan Year shall be determined by
dividing (i) the amount determined for him in subsection (b) hereof
for such Plan Year, by (ii) the per share fair market value of
Company Stock on the Allocation Date for such Plan Year.
(d) Cash Dividends. For Stock Units that have been
credited to a Participant's Account on or before a record date for
Company Stock cash dividends and that remain credited to his
Account through the corresponding dividend payment date, the
Administrative Committee shall credit to such Participant's Account
a dollar amount equal to the amount of cash dividends that would
have been paid on his Stock Units if each Stock Unit constituted
one share of Company Stock. Such dollar amount then will be
converted into a number of Stock Units equal to the number of full
and fractional shares of Company Stock that could have been
purchased, at fair market value on the dividend payment date, with
such dollar amount.
(e) Adjustments for Stock Dividends and Splits. In the
event of any subdivision or combination of the outstanding shares
of Company Stock, by reclassification, stock split, reverse stock
split or otherwise, or in the event of the payment of a stock
dividend on Company Stock, or in the event of any other increase or
decrease in the number of outstanding shares of Company Stock,
other than the issuance of shares for value received by the Company
or the redemption of shares for value, the number of Stock Units
credited to a Participant's Account shall be adjusted upward or
downward, as the case may be, to reflect the subdivision or
combination of the outstanding shares. The amount of increase or
decrease in the number of Stock Units in such event will be equal
to the adjustment that would have been made if each Stock Unit
credited to a Participant's Account immediately prior to the event
constituted one share of Company Stock.
(f) Value of Account. The value of a Participant's
Account as of any date shall be equal to the product of (i) the
number of Stock Units credited to his Account as of such date (as
determined in accordance with the preceding subsections), and (ii)
the per share fair market value of Company Stock on such date.
(g) Value of Company Stock.
(i) For all purposes under the Plan for which the
value of Company Stock must be determined as of any particular
date as of which Company Stock is trading on the New York
Stock Exchange, the fair market value per share of Company
Stock on such date shall be the closing price of Company Stock
on the New York Stock Exchange on such date. If, for any
reason, the fair market value per share of Company Stock
cannot be ascertained or is unavailable for a particular date,
the fair market value of Company Stock on such date shall be
determined as of the nearest preceding date on which the fair
market value can be ascertained pursuant to the terms hereof.
(ii) For all purposes under the Plan for which the
value of Company Stock must be determined as of any particular
date on which Company Stock is not trading on the New York
Stock Exchange but on which Company Stock is trading on
another national securities exchange in the United States, the
fair market value per share of Company Stock shall be the
closing price of the Company Stock on such national securities
exchange on such date. If Company Stock is trading on such
other national securities exchange in the United States on
such date but no sales of shares of Company Stock occurred
thereon, the fair market value per share of Company Stock
shall be the closing price of the Stock on the nearest
preceding date. If on any particular date a public market
shall exist for Company Stock but Company Stock is not trading
on a national securities exchange in the United States, then,
if Company Stock is listed on the National Market List by the
National Association of Securities Dealers, Inc. (the "NASD"),
the fair market value per share of Company Stock shall be the
last sale price for such shares reflected on said market list
for such date, and if Company Stock is not listed on the
National Market List of the NASD, then the fair market value
per share of Company Stock shall be the mean between the bid
and asked quotations in the over-the-counter market for such
shares on such date. If there is no bid and asked quotation
for Company Stock on such date, the fair market value per
share of Company Stock shall be the mean between the bid and
asked quotations in the over-the-counter market for such
shares on the nearest preceding date. If the fair market
value per share of Company Stock cannot otherwise be
determined under this section as of a particular date, such
value shall be determined by the Administrative Committee, in
its sole discretion, based on all relevant available facts.
3.3 Vesting.
Stock Units credited to a Participant's Account shall
vest in accordance with the same vesting schedule and service,
and/or based on the same events, as provided in the ESOP.
3.4 Notice to Participants of Account Balances.
At least once for each Plan Year, the Administrative
Committee shall cause a written statement of a Participant's
Account balance to be distributed to the Participant.
3.5 Good Faith Valuation Binding.
In determining the value of the Accounts, the
Administrative Committee shall exercise its best judgment, and all
such determinations of value (in the absence of bad faith) shall be
binding upon all Participants and their Beneficiaries.
3.6 Errors and Omissions in Accounts.
If an error or omission is discovered in the Account of
a Participant or in the amount credited to a Participant's Account,
the Administrative Committee, in its sole discretion, shall cause
appropriate, equitable adjustments to be made as soon as
administratively practicable following the discovery of such error
or omission.
ARTICLE IV
PAYMENT OF ACCOUNT BALANCES
4.1 Benefit Payments.
(a) General Rule Concerning Benefit Payments. In
accordance with the terms of subsection (b) hereof, if a
Participant's employment, with the Company, all other members of
the Controlled Group and any other company that the Administrative
Committee designates for purposes of the Plan as an affiliate of
the Company, terminates for any reason including his death, he (or
the Beneficiary or Beneficiaries designated by such Participant in
his latest beneficiary designation form filed with the
Administrative Committee) shall be entitled to receive a
distribution of the value of the vested number of Stock Units
credited to the Participant's Account, determined as of the last
day of the calendar quarter immediately preceding the date payment
of such distribution is to be made. For purposes of this
subsection, the "date payment of such distribution is to be made"
refers to the date established for such purpose by administrative
practice, even if actual payment is made at a later date due to
delays in valuation, administration or any other procedure.
(b) Timing of Distribution.
(1) If a Participant's employment terminates (i) on
account of retirement on or after he attains age 65, or (ii)
on account of his Disability or death during a Plan Year and
prior to October 1 of that Plan Year, the vested benefit
payable to him or his Beneficiary or Beneficiaries under this
Section shall be distributed as soon as administratively
feasible after the date his employment so terminates.
(2) If a Participant's employment terminates on
account of his Disability or death during a Plan Year and
after September 30 of that Plan Year, the vested benefit
payable to him or his Beneficiary or Beneficiaries under this
Section shall be distributed as soon as administratively
feasible after December 31 of that Plan Year.
(3) If a Participant's employment terminates for
any reason other than the reasons specified in the preceding
paragraphs, the vested benefit payable to him (or his
Beneficiary or Beneficiaries, if he dies after such
termination of employment but before distribution of his
Account) under this Section shall be distributed as soon as
administratively feasible after the last day of the second
calendar quarter following the calendar quarter in which his
employment so terminates.
4.2 Form of Distribution.
The benefit payable to a Participant (or his Beneficiary
or Beneficiaries) under Section 4.1 shall be paid in a single
payment in the form of a number of shares of Company Stock equal to
the whole number of Stock Units credited to his Account, with any
fractional
Stock Unit being paid, at its fair market value as if it
were a fractional share of Company Stock, in a single-sum, cash
payment.
4.3 Beneficiary Designation.
(a) General. Participants shall designate and from time
to time may redesignate their Beneficiaries in such form and manner
as the Administrative Committee may determine.
(b) No Designation or Designee Dead or Missing. In the
event that:
(1) a Participant dies without designating a
Beneficiary;
(2) the Beneficiary designated by a Participant is
not surviving when a payment is to be made to such person
under the Plan, and no contingent Beneficiary has been
designated; or
(3) the Beneficiary designated by a Participant
cannot be located by the Administrative Committee within 1
year from the date benefits are to be paid to such person;
then, in any of such events, the Beneficiary of such Participant
with respect to any benefits that remain payable under the Plan
shall be the Participant's Surviving Spouse, if any, and if not,
the estate of the Participant.
4.4 Taxes.
If the whole or any part of any Participant's or
Beneficiary's benefit hereunder shall become subject to any estate,
inheritance, income or other tax which the Company (or its agent)
shall be required to pay or withhold, the Company (or its agent, as
applicable) shall have the full power and authority (i) to withhold
and pay such tax out of any monies or other property in its hand
for the account of the Participant or Beneficiary whose interests
hereunder are so affected and/or (ii) to require the Participant or
Beneficiary to pay to the Company (or its agent, as applicable), in
cash or cash equivalent, the amount of any such tax. Prior to
making any payment, the Company (or its agent, as applicable) may
require such releases or other documents from any lawful taxing
authority as it shall deem necessary.
ARTICLE V
CLAIMS
5.1 Claims.
(a) Initial Claim. Claims for benefits under the Plan
may be filed in writing with the Administrative Committee on forms
or in such other written documents, as the Administrative Committee
may prescribe. The Administrative Committee shall furnish to the
claimant written notice of the disposition of a claim within 90
days after the application therefor is filed. In the event the
claim is denied, the notice of the disposition of the claim shall
provide the specific reasons for the denial, citations of the
pertinent provisions of the Plan, and, where appropriate, an
explanation as to how the claimant can perfect the claim and/or
submit the claim for review.
(b) Appeal. Any Participant or Beneficiary who has been
denied a benefit shall be entitled, upon request to the
Administrative Committee, to appeal the denial of his claim. The
claimant (or his duly authorized representative) may review
pertinent documents related to the Plan and in the Administrative
Committee's possession in order to prepare the appeal. The request
for review, together with written statement of the claimant's
position, must be filed with the Administrative Committee no later
than 60 days after receipt of the written notification of denial of
a claim provided for in subsection (a). The Administrative
Committee's decision shall be made within 60 days following the
filing of the request for review. If unfavorable, the notice of
the decision shall explain the reasons for denial and indicate the
provisions of the Plan or other documents used to arrive at the
decision.
(c) Satisfaction of Claims. Any payment to a
Participant or Beneficiary shall to the extent thereof be in full
satisfaction of all claims hereunder against the Administrative
Committee and the Company, any of whom may require such Participant
or Beneficiary, as a condition to such payment, to execute a
receipt and release therefor in such form as shall be determined by
the Administrative Committee or the Company. If receipt and
release is required but the Participant or Beneficiary (as
applicable) does not provide such receipt and release in a timely
enough manner to permit a timely distribution in accordance with
the general timing of distribution provisions in the Plan, the
payment of any affected distribution may be delayed until the
Administrative Committee or the Company receive a proper receipt
and release.
ARTICLE VI
SOURCE OF FUNDS; TRUST
6.1 Source of Funds.
Except as provided in this Section and Section 6.2, each
Participating Company shall provide the benefits described in the
Plan from the general assets of such Participating Company. In any
event, each Participating Company ultimately shall have the
obligation to pay all benefits due to Participants and
Beneficiaries under the Plan to the extent liability therefor has
been allocated hereunder to such Participating Company. A
Participating Company may, but shall not be required to, establish
a Trust and may pay over funds from time to time to such Trust (as
described in Section 6.2), and, to the extent that funds in such
Trust allocable to the benefits payable under the Plan by such
Participating Company are sufficient, the Trust assets shall be
used to pay such benefits. If such Trust assets are not sufficient
to pay all such benefits due under the Plan, then such
Participating Company shall have the obligation, and the
Participant or Beneficiary, who is due such benefits, shall look to
such Participating Company to provide such benefits. The
Administrative Committee or the Board shall allocate the total
liability to pay benefits under the Plan among the Participating
Companies in such manner and amount as the Administrative Committee
or the Board (as applicable) in its sole discretion deems
appropriate.
6.2 Trust.
A Participating Company may transfer all or any portion
of the funds necessary to fund benefits accrued hereunder to the
Trustee to be held and administered by the Trustee pursuant to the
terms of the Trust Agreement. Each transfer into the Trust Fund
shall be irrevocable as long as such Participating Company has any
liability or obligations under the Plan to pay benefits, such that
the Trust property is in no way subject to use by such
Participating Company; provided, it is the intent of such
Participating Company that the assets held by the Trust are and
shall remain at all times subject to the claims of the general
creditors of such Participating Company. No Participant or
Beneficiary shall have any interest in the assets held by the Trust
or in the general assets of any Participating Company other than as
a general, unsecured creditor. Accordingly, no Participating
Company shall grant a security interest in the assets held by the
Trust in favor of the Participants, Beneficiaries or any creditor.
ARTICLE VII
ADMINISTRATIVE COMMITTEE
7.1 Action.
Action of the Administrative Committee may be taken with
or without a meeting of committee members; provided, action shall
be taken only upon the vote or other affirmative expression of a
majority of the committee members qualified to vote with respect to
such action. If a member of the committee is a Participant or
Beneficiary, he shall not participate in any decision which solely
affects his own benefit under the Plan. For purposes of
administering the Plan, the Administrative Committee shall choose
a secretary who shall keep minutes of the committee's proceedings
and all records and documents pertaining to the administration of
the Plan. The secretary may execute any certificate or any other
written direction on behalf of the Administrative Committee.
7.2 Rights and Duties.
The Administrative Committee shall administer the Plan
and shall have all powers necessary to accomplish that purpose,
including (but not limited to) the following:
(a) To construe, interpret and administer the Plan;
(b) To make determinations required by the Plan, and to
maintain records regarding Participants' and Beneficiaries'
benefits hereunder;
(c) To compute and certify to the Company the amount and
kinds of benefits payable to Participants and Beneficiaries, and to
determine the time and manner in which such benefits are to be
paid;
(d) To authorize all disbursements by the Company
pursuant to the Plan;
(e) To maintain all the necessary records of the
administration of the Plan;
(f) To make and publish such rules for the regulation of
the Plan as are not inconsistent with the terms hereof;
(g) To delegate to other individuals or entities from
time to time the performance of any of its duties or
responsibilities hereunder;
(h) To hire agents, accountants, actuaries, consultants
and legal counsel to assist in operating and administering the
Plan.
<PLAN>
The Administrative Committee shall have the exclusive right to
construe and interpret the Plan, to decide all questions of
eligibility for benefits and to determine the amount of such
benefits, and its decisions on such matters shall be final and
conclusive on all parties.
7.3 Compensation, Indemnity and Liability.
The Administrative Committee and its members shall serve
as such without bond and without compensation for services
hereunder. All expenses of the Administrative Committee shall be
paid by the Company. No member of the committee shall be liable
for any act or omission of any other member of the committee, nor
for any act or omission on his own part, excepting his own willful
misconduct. The Company shall indemnify and hold harmless the
Administrative Committee and each member thereof against any and
all expenses and liabilities, including reasonable legal fees and
expenses, arising out of his membership on the committee, excepting
only expenses and liabilities arising out of his own willful
misconduct.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 Amendments.
The Controlling Company, through action of the Board or
the Administrative Committee, shall have the right, in its sole
discretion, to amend the Plan in whole or in part at any time and
from time to time; provided, the Administrative Committee may not
amend the Plan to increase the level of benefits hereunder without
Board approval; and, provided further, Section 3.2 (relating to the
amount of benefits to be accrued under the Plan) may not be amended
more frequently than once every 6 months other than to comport with
changes in the Code or ERISA, or rules thereunder. Any amendment
shall be in writing and executed by a duly authorized officer of
the Controlling Company or a member of the Administrative
Committee. An amendment to the Plan may modify its terms in any
respect whatsoever, and may include, without limitation, a
permanent or temporary freezing of the Plan such that the Plan
shall remain in effect with respect to existing Account balances
without permitting any new contributions; provided, no such action
may reduce the amount already credited to a Participant's Account
without the affected Participant's written consent. All
Participants and Beneficiaries shall be bound by such amendment.
8.2 Termination of Plan.
The Controlling Company expects to continue the Plan but
reserves the right to discontinue and terminate the Plan at any
time, for any reason. Any action to terminate the Plan shall be
taken by the Board in the form of a written Plan amendment executed
by a duly authorized officer of the Controlling Company. If the
Plan is terminated, each Participant shall become 100 percent
vested in his Account which shall be distributed in a single
payment of Company Stock and cash, in the manner prescribed in
Section 4.2, as soon as practicable after the date the Plan is
terminated. The amount of any such distribution shall be
determined as of the date such termination distribution is to be
processed. Such termination shall be binding on all Participants
and Beneficiaries.
ARTICLE IX
MISCELLANEOUS
9.1 Taxation.
It is the intention of the Company that the benefits
payable hereunder shall not be deductible by the Company nor
taxable for federal income tax purposes to Participants or
Beneficiaries until such benefits are paid by the Company, or the
Trust, as the case may be, to such Participants or Beneficiaries.
When such benefits are so paid, it is the intention of the Company
that they shall be deductible by the Company under Code Section
162.
9.2 No Employment Contract.
Nothing herein contained is intended to be nor shall be
construed as constituting a contract or other arrangement between
the Company and any Participant to the effect that the Participant
will be employed by the Company for any specific period of time.
9.3 Headings.
The headings of the various articles and sections in the
Plan are solely for convenience and shall not be relied upon in
construing any provisions hereof. Any reference to a section shall
refer to a section of the Plan unless specified otherwise.
9.4 Gender and Number.
Use of any gender in the Plan will be deemed to include
all genders when appropriate, and use of the singular number will
be deemed to include the plural when appropriate, and vice versa in
each instance.
9.5 Assignment of Benefits.
The right of a Participant or his Beneficiary to receive
payments under the Plan may not be anticipated, alienated, sold,
assigned, transferred, pledged, encumbered, attached or garnished
by creditors of such Participant or Beneficiary, except by will or
by the laws of descent and distribution and then only to the extent
permitted under the terms of the Plan.
9.6 Legally Incompetent.
The Administrative Committee, in its sole discretion, may
direct that payment be made to an incompetent or disabled person,
whether because of minority or mental or physical disability, to
the guardian of such person or to the person having custody of such
person, without further liability on the part of the Company for
the amount of such payment to the person on whose account such
payment is made.
9.7 Governing Law.
The Plan shall be construed, administered and governed in
all respects in accordance with applicable federal law (including
ERISA) and, to the extent not preempted by federal law, in
accordance with the laws of the State of Georgia. If any
provisions of this instrument shall be held by a court of competent
jurisdiction to be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective.
IN WITNESS WHEREOF, the Controlling Company has caused the
Plan to be executed by its duly authorized officer on the 15th day of
March, 1995.
THE HOME DEPOT, INC.
By: /s/ Marshall L. Day
Title: Senior Vice President-Finance