\n1. EMPLOYMENT……………………………………………………………………………………….5
\n2. PERIOD OF EMPLOYMENT………………………………………………………………………………5
\n3. DUTIES DURING THE PERIOD OF EMPLOYMENT………………………………………………………………5
\n 3.1 DUTIES………………………………………………………………………………….5
\n 3.2 SCOPE…………………………………………………………………………………..5
\n4. COMPENSATION AND OTHER PAYMENTS…………………………………………………………………….5
\n 4.1 SALARY………………………………………………………………………………….6
\n 4.2 MAKE WHOLE PAYMENT……………………………………………………………………….6
\n 4.3 ANNUAL BONUS…………………………………………………………………………….7
\n 4.4 ANNUAL STOCK OPTION GRANTS………………………………………………………………..7
\n 4.5 DEFERRED STOCK UNITS……………………………………………………………………..8
\n 4.6 PAYMENT OF PROFESSIONAL FEES………………………………………………………………8
\n5. OTHER EXECUTIVE BENEFITS…………………………………………………………………………..8
\n 5.1 DEFERRED COMPENSATION…………………………………………………………………….8
\n 5.2 REGULAR REIMBURSED BUSINESS EXPENSES………………………………………………………10
\n 5.3 BENEFIT PLANS…………………………………………………………………………..10
\n 5.4 RELOCATION……………………………………………………………………………..10
\n 5.5 PERQUISITES…………………………………………………………………………….11
\n6. TERMINATION……………………………………………………………………………………..11
\n 6.1 DEATH OR DISABILITY……………………………………………………………………..11
\n 6.2 BY THE COMPANY FOR CAUSE…………………………………………………………………11
\n 6.3 BY EXECUTIVE FOR GOOD REASON……………………………………………………………..12
\n 6.4 OTHER THAN FOR CAUSE OR GOOD REASON……………………………………………………….12
\n 6.5 NOTICE OF TERMINATION……………………………………………………………………13
\n 6.6 DATE OF TERMINATION……………………………………………………………………..13
\n7. OBLIGATIONS OF THE COMPANY UPON TERMINATION…………………………………………………………13
\n 7.1 TERMINATION BY THE COMPANY FOR CAUSE OR RESIGNATION WITHOUT GOOD REASON……………………….13
\n 7.2 RESIGNATION WITH GOOD REASON; CHANGE IN CONTROL; TERMINATION WITHOUT CAUSE; DEATH; DISABILITY……14
\n 7.3 RETIREMENT AFTER AGE SIXTY-TWO……………………………………………………………16
\n 7.4 COBRA RIGHTS……………………………………………………………………………16
\n8. CHANGE IN CONTROL………………………………………………………………………………..16
\n9. MITIGATION………………………………………………………………………………………16
\n10. INDEMNIFICATION…………………………………………………………………………………17
\n11. CONFIDENTIAL INFORMATION…………………………………………………………………………17
\n12. REMEDY FOR VIOLATION OF SECTION 11………………………………………………………………..17
\n13. WITHHOLDING…………………………………………………………………………………….17
\n14. ARBITRATION…………………………………………………………………………………….17
\n15. REIMBURSEMENT OF LEGAL EXPENSES…………………………………………………………………..18
\n16. TAXES………………………………………………………………………………………….18
\n17. SUCCESSORS……………………………………………………………………………………..19
\n18. REPRESENTATIONS…………………………………………………………………………………19
\n19. MISCELLANEOUS…………………………………………………………………………………..20
\n<\/c><\/s><\/caption>\n<\/table>\n – 2 –
\n 3<\/p>\n
EMPLOYMENT AGREEMENT<\/p>\n
THIS AGREEMENT (“Agreement”), by and between The Home Depot, Inc., a
\nDelaware corporation (“Company”), and Robert L. Nardelli (“Executive”) is
\neffective as of December 4, 2000 (the “Effective Date”). In consideration of the
\nmutual covenants set forth herein, the Company and the Executive hereby agree as
\nfollows:<\/p>\n
1. EMPLOYMENT. The Company hereby agrees to employ the Executive,
\nand the Executive agrees to serve the Company, in the capacities described
\nherein during the Period of Employment (as defined in Section 2 of this
\nAgreement), in accordance with the terms and conditions of this Agreement.<\/p>\n
2. PERIOD OF EMPLOYMENT. The term “Period of Employment” shall
\nmean the period which commences on the Effective Date and, unless earlier
\nterminated pursuant to Section 6, ends on December 31, 2005; provided, however,
\nthat the Period of Employment shall automatically be extended on a day by day
\nbasis effective on and after January 1, 2003 (so that the remaining term shall
\nalways be three (3) years) until such date as either the Company or the
\nExecutive shall have terminated such automatic extension provision by giving
\nwritten notice to the other.<\/p>\n
3. DUTIES DURING THE PERIOD OF EMPLOYMENT.<\/p>\n
3.1 DUTIES. During the Period of Employment, the
\nExecutive shall be employed as the President and Chief Executive Officer of the
\nCompany with overall charge and responsibility for the business and affairs of
\nthe Company. The Executive shall report directly to the Company’s Board of
\nDirectors (the “Board”) and shall perform such duties as the Executive shall
\nreasonably be directed to perform by the Board. The Company shall cause the
\nExecutive to be elected as follows: (i) to the Board, as of the Effective Date,
\n(ii) to the Executive Committee of the Board, as of the first regularly
\nscheduled Board meeting following the Effective Date, and (iii) as sole Chairman
\nof the Board, on or before December 31, 2001 or as of such date as Executive
\nshall designate upon not less than thirty (30) days’ notice to the Company as
\nprovided under Section 19.2 of this Agreement.<\/p>\n
3.2 SCOPE. During the Period of Employment, and excluding
\nany periods of vacation and sick leave to which the Executive is entitled, the
\nExecutive shall devote substantially all of his business time and attention to
\nthe business and affairs of the Company. It shall not be a violation of this
\nAgreement for the Executive to (i) serve on corporate, civic or charitable
\nboards or committees, (ii) deliver lectures, fulfill speaking engagements or
\nteach occasional courses or seminars at educational institutions, or (iii)
\nmanage personal investments, so long as such activities under clauses (i), (ii)
\nand (iii) do not interfere, in any substantial respect, with the Executive’s
\nresponsibilities hereunder.<\/p>\n
4. COMPENSATION AND OTHER PAYMENTS.<\/p>\n
4.1 SALARY. During the Period of Employment, the Company
\nshall pay the Executive an annualized base salary of not less than one million
\nfive hundred thousand dollars <\/p>\n
– 3 –
\n 4<\/p>\n
($1,500,000) per year (the “Base Salary”). The Executive’s Base Salary shall be
\npaid in accordance with the Company’s executive payroll policy. The Base Salary
\nshall be reviewed by the Compensation Committee of the Board of the Company (the
\n“Committee”) as soon as practicable after the end of each fiscal year during the
\nPeriod of Employment, beginning with the fiscal year ending on February 3, 2002.
\nBased upon such reviews, the Committee may increase, but shall not decrease, the
\nBase Salary. Any increase in Base Salary shall not serve to limit or reduce any
\nother obligation to the Executive under this Agreement.<\/p>\n
4.2 MAKE WHOLE PAYMENT. As of the Effective Date, the
\nCompany shall grant the Executive:<\/p>\n
4.2.1 A stock option grant with respect to two
\n million five hundred thousand (2,500,000) shares of the Company’s
\n stock, which shall vest and become exercisable in equal five hundred
\n thousand (500,000) share increments on the Effective Date and each of
\n the next four anniversaries of the Effective Date, provided that each
\n tranche shall vest only if the Executive is employed by the Company on
\n that tranche’s vesting date, except as provided in this Agreement. Each
\n tranche will have a 10-year exercise period beginning at its vesting
\n date. The exercise price for this option shall be forty dollars and
\n seventy-five cents ($40.75) per share, which is the closing price of
\n the Company’s stock on the New York Stock Exchange (as reported in The
\n Wall Street Journal) on the Effective Date.<\/p>\n
4.2.2 A fully vested and exercisable 10-year stock
\n option grant under the Company’s 1997 Omnibus Stock Incentive Plan with
\n respect to one million (1,000,000) shares of Company stock, with an
\n exercise price equal to forty dollars and seventy-five cents ($40.75),
\n which is the closing price of the Company’s stock on the New York Stock
\n Exchange (as reported in The Wall Street Journal) on the Effective
\n Date.<\/p>\n
4.2.3 A lump-sum cash payment of fifty thousand
\n four hundred dollars ($50,400).<\/p>\n
4.2.4 A ten million dollar ($10,000,000) loan at
\n the interest rate of five and eight tenths percent (5.8%) per annum,
\n compounded annually, to be disbursed within three business days of the
\n Effective Date (the “Executive Loan”). This loan, and the Executive’s
\n obligation to repay principal and the associated accrued interest
\n thereunder, (the term “Loan” covering both principal and accrued
\n interest) shall be forgiven (a) twenty percent (20%) on each of the
\n first five (5) anniversaries of the Effective Date, provided that the
\n Executive is employed by the Company on any such anniversary, or (b)
\n earlier, in full on the date of a Change in Control of the Company (as
\n defined in Section 7.2.12), if the Executive is employed by the Company
\n on such date, or (c) earlier, in full upon the date of the termination
\n of the Executive’s employment with the Company prior to December 4,
\n 2005 if such termination is by the Company without Cause (as defined in
\n subsection 6.2), by the Executive for Good Reason (as defined in
\n subsection 6.3) or by reason of the Executive’s death or Disability (as
\n defined in subsection 6.1). In addition, if the Loan, or any part of
\n the Loan, is forgiven pursuant to <\/p>\n
– 4 –
\n 5<\/p>\n
the preceding sentence, the Company shall pay the Executive, on or
\n prior to such date as the Executive shall be required to pay federal,
\n state or local taxes with respect to the forgiveness of the Loan, an
\n additional payment (the “Gross-Up Payment”) in an amount sufficient to
\n fully reimburse the Executive with respect to all federal, state and
\n local taxes with respect to the forgiveness of accrued interest and
\n with respect to receipt of the Gross-Up Payment. If, prior to the fifth
\n anniversary of the Effective Date, the Executive’s employment with the
\n Company is terminated by the Company for Cause or by the Executive
\n other than for Good Reason, then the remaining principal balance (not
\n including accrued interest) of the Executive Loan shall be repaid by
\n the Executive in annual two million dollar ($2,000,000) installments,
\n which shall be made on the next anniversary or anniversaries, as the
\n case may be, of the Effective Date.<\/p>\n
4.3 ANNUAL BONUS. Beginning with the Company’s fiscal
\nyear ending on the last Sunday in January 2002, as soon as practicable after the
\nend of each fiscal year, the Committee shall review the Executive’s performance
\nunder this Agreement as part of Executive’s participation under the appropriate
\nbonus plan of the Company as in effect from time to time. The Executive’s annual
\nbonus shall be at a target of no less than three million dollars ($3,000,000)
\n(the “Target Amount”) and a maximum of no less than four million dollars
\n($4,000,000) (the “Maximum Amount”). Nothing contained herein shall prevent the
\nCommittee from paying an annual bonus in excess of the Maximum Amount. The
\nExecutive shall be paid his annual bonus no later than other senior executives
\nof the Company are paid their annual bonuses. For each year during the Period of
\nEmployment, and for any period during the Period of Employment which is less
\nthan one year due to termination of the Executive’s employment for any reason
\nother than Cause, the Executive will receive an annual bonus of no less than the
\nfull Target Amount.<\/p>\n
4.4 ANNUAL STOCK OPTION GRANTS. The Committee shall in
\n2002 and subsequent calendar years grant to the Executive ten-year options with
\nrespect to shares of Company stock, with such grants to be made at the same time
\nduring the calendar year as grants are generally made to senior executives of
\nthe Company. Such annual grants shall be consistent with competitive pay
\npractices generally and appropriate relative to awards made to other senior
\nexecutives of the Company; provided, however, that each such annual grant shall
\nbe to purchase no less than four hundred fifty thousand (450,000) shares of
\nCompany Stock, with such number to be adjusted appropriately in the event of any
\nchange in the outstanding shares of Company Stock by reason of a stock dividend
\nor split, recapitalization, merger, consolidation or other similar corporate
\nchange or distribution of stock or property by the Company. These option grants
\nshall vest in four equal increments, with one tranche vesting on the second
\nanniversary of the grant date and one tranche vesting on each of the next three
\nanniversaries of the grant date (the “Vesting Scheme”); provided, however that
\nan annual option grant shall instead vest pursuant to normal Company practice at
\nthe time of grant, so long as such then-current practice is no slower than the
\nVesting Scheme. Any annual option grant may vest subject to a different vesting
\nschedule, so long as such vesting schedule is no slower than the faster of the
\nVesting Scheme or the then-current normal Company practice at the time of such
\nstock option grant.<\/p>\n
– 5 –
\n 6<\/p>\n
4.5 DEFERRED STOCK UNITS. As of the Effective Date, the
\nCompany shall grant the Executive an award of deferred stock units corresponding
\nto seven hundred fifty thousand (750,000) shares of Company stock. Such award
\nshall vest in equal one hundred fifty thousand (150,000) share increments on the
\nEffective Date and each of the first four anniversaries of the Effective Date;
\nprovided that each tranche shall vest only if the Executive is employed by the
\nCompany on that tranche’s vesting date, except as provided in this Agreement. On
\nthe January 1 following the second anniversary of each vesting date (as
\nillustrated in the schedule on Appendix A hereto) one share of stock for each
\nunit shall be distributed to the Executive, unless such distribution is further
\ndeferred by the Executive by the second December 31 following the vesting date
\n(as illustrated in the schedule on Appendix A hereto). The Executive shall
\nreceive a dividend equivalent cash payment on all vested deferred stock units
\nwhen dividends are paid to shareholders. Unless otherwise agreed to by the
\nExecutive and the Company, the Company shall, within ten (10) days after
\ntermination of the Executive’s employment for any reason, deliver to the
\nExecutive one share of Company stock for each vested deferred stock unit for
\nwhich stock has not yet been distributed to the Executive.<\/p>\n
4.6 PAYMENT OF PROFESSIONAL FEES. The Company shall pay
\non the Executive’s behalf all statements rendered to the Executive by the
\nExecutive’s attorneys, accountants and other advisors for reasonable fees and
\nexpenses in connection with the negotiation and preparation of this Agreement.
\nThe Company shall pay the Executive, on or prior to such date as the Executive
\nshall be required to pay federal, state or local taxes with respect to the
\nCompany’s payment of such professional fees, an additional payment (the
\n“Gross-Up Payment”) in an amount sufficient to fully reimburse the Executive
\nwith respect to all federal, state and local taxes with respect to the Company’s
\npayment of such professional fees and with respect to receipt of the Gross-Up
\nPayment.<\/p>\n
5. OTHER EXECUTIVE BENEFITS.<\/p>\n
5.1 DEFERRED COMPENSATION.<\/p>\n
5.1.1 Upon termination of the Executive’s
\n employment, the Executive shall be entitled to a cash benefit (the
\n “Deferred Compensation”) in the form of a single life annuity for the
\n life of Executive, commencing on the later of his 62nd birthday or
\n termination of employment, in an annual amount equal to 50% of the
\n Executive’s Final Earnings. Final Earnings shall equal the sum of the
\n Executive’s (i) then-current Base Salary as of the date of termination
\n and (ii) most recent annual bonus (or then-current Target Amount, if
\n greater) as of the date of termination; provided, however, that Final
\n Earnings shall not be less than four million five hundred thousand
\n dollars ($4,500,000) (the sum of the original Base Salary and original
\n Target Amount under this Agreement). The Deferred Compensation shall be
\n subject to offset for all employer-funded qualified and non-qualified
\n defined benefit pension benefits paid or payable to the Executive from
\n the Company or the Executive’s prior employers. In the event any amount
\n taken into account as an offset is not paid (other than as a result of
\n the death of the Executive, or of any action by Executive), and a final
\n determination is made that such amount will not be paid to Executive,
\n then the Executive shall be entitled to receive an additional amount<\/p>\n
– 6 –
\n 7<\/p>\n
from the Company equivalent to such unpaid amount. The Executive and
\n the Company shall cooperate with each other in connection with any
\n proceeding or claim against a prior employer relating to the payment of
\n such an amount to Executive, and all expenses incurred by the Executive
\n in connection therewith shall be paid by the Company promptly upon
\n notice from Executive.<\/p>\n
5.1.2 In the event the Executive’s employment is
\n terminated either (i) by the Company for Cause or (ii) by the Executive
\n without Good Reason, and such termination occurs prior to the
\n Executive’s 62nd birthday, the Deferred Compensation amount at age 62
\n shall be reduced by 3% for each full year during the period between
\n such termination and the Executive’s 62nd birthday.<\/p>\n
5.1.3 In the event the Executive’s employment is
\n terminated either (i) by the Company for Cause or (ii) by the Executive
\n without Good Reason, and such termination occurs prior to the fifth
\n anniversary of the Effective Date, the Deferred Compensation amount at
\n age 62 (after any applicable reduction under subsection 5.1.2) shall be
\n reduced by 20% for each full year during the period between such
\n termination and the fifth anniversary of the Effective Date.<\/p>\n
5.1.4 Termination of the Executive’s employment
\n for any reason other than (i) by the Company for Cause or (ii) by the
\n Executive without Good Reason shall not cause a reduction in the
\n Deferred Compensation under subsection 5.1.2 or 5.1.3. In the event of
\n the Executive’s death prior to commencement of the payment of the
\n Deferred Compensation, the Executive’s surviving spouse (or, if there
\n is no surviving spouse, Executive’s estate), shall be entitled to
\n receive a lump sum payment equal to the lump sum payment to which
\n Executive would have been entitled if his Deferred Compensation was
\n payable (without reduction under subsection 5.1.2 or 5.1.3) as of the
\n date immediately preceding his death and he had elected to receive such
\n amount in a lump sum on that date.<\/p>\n
5.1.5 In the event the Executive commences receipt
\n of (or in the event of his death, was deemed to have elected to
\n receive) his Deferred Compensation prior to age 62, the Deferred
\n Compensation amount (after any applicable reduction(s) under
\n subsections 5.1.2 and\/or 5.1.3) shall be subject to a discount of 4%
\n for each full year between the date the Executive receives or begins to
\n receive (or is deemed to have received) the Deferred Compensation and
\n the date of the Executive’s 62nd birthday. In the event of a Change in
\n Control of the Company, this subsection shall be revised by
\n substituting “age 55” for “age 62” in the immediately preceding
\n sentence.<\/p>\n
5.1.6 With the consent of the Company, or by
\n written election delivered to the Company by the Executive at least
\n twelve (12) months prior to the termination of the Executive’s
\n employment with the Company, the Executive may elect, in lieu of a
\n single life annuity, to receive the Deferred Compensation in a lump sum
\n or deferred lump sum or installment payments, or a life and term
\n certain or joint and survivor annuity, or such other optional form as
\n Executive may elect. The amount of such lump sum benefit <\/p>\n
– 7 –
\n 8<\/p>\n
shall be the actuarially equivalent present value of the Deferred
\n Compensation that would otherwise have been payable, commencing
\n immediately as of the date such lump sum payment is made. Any optional
\n form of payment shall have an actuarially equivalent present value
\n equal to the amount of such lump sum. For purposes of this Agreement,
\n any actuarially equivalent present value shall not be less than the
\n present value determined on the basis of the applicable mortality table
\n and applicable interest rate prescribed in Internal Revenue Code
\n Section 417(e)(3)(A)(ii), in each case as would be applicable to a
\n distribution made during the second calendar month immediately
\n preceding the calendar month in which such lump sum distribution is
\n made or optional form of payment is commenced.<\/p>\n
5.2 REGULAR REIMBURSED BUSINESS EXPENSES. The Company
\nshall promptly reimburse the Executive for all expenses and disbursements
\nreasonably incurred by the Executive in the performance of his duties hereunder
\nduring the Period of Employment.<\/p>\n
5.3 BENEFIT PLANS. The Executive and his eligible family
\nmembers shall be entitled to participate immediately (except for the Company’s
\n401(k) plan, in which the Executive shall be entitled to participate after
\nsatisfying the one-year waiting period), on terms no less favorable to the
\nExecutive than the terms offered to other senior executives of the Company who
\nperform or have performed in the same capacity as the Executive, in any group
\nand\/or executive life, hospitalization or disability insurance plan, health
\nprogram, vacation policy, pension, profit sharing, ESOP, 401(k) and similar
\nbenefit plans (qualified, non-qualified and supplemental) or other fringe
\nbenefits (it being understood that items such as stock options are not fringe
\nbenefits) of the Company (collectively referred to as the “Benefits”); provided,
\nhowever, that such Benefits shall be no less, in both scope of coverage and
\nvalue of coverage, than the benefits provided to the Executive by the
\nExecutive’s immediately preceding employer. The benefit adjustments necessary to
\nmeet the requirements of this paragraph are described in the letter from the
\nCompany to the Executive of even date herewith. In the event that any health
\nprograms or insurance policies applicable to the Benefits provided hereunder
\ncontain a preexisting conditions clause, the Company shall reimburse the
\nExecutive for any COBRA premiums on a tax grossed-up basis. Anything contained
\nherein to the contrary notwithstanding, the Benefits described herein shall not
\nduplicate benefits made available to the Executive pursuant to any other
\nprovision of this Agreement.<\/p>\n
5.4 RELOCATION. The Company shall pay all costs of
\nrelocation of the Executive and his family to the Atlanta metropolitan area in
\naccordance with the Company’s relocation policy supplemented as follows:<\/p>\n
5.4.1 The Company shall reimburse the Executive
\n for reasonable temporary living expenses (including reasonable travel
\n expenses between the Executive’s primary residence as of the Effective
\n Date and the Atlanta metropolitan area) for the Executive and his
\n family in the Atlanta metropolitan area for a period not to exceed one
\n year from the Effective Date;<\/p>\n
– 8 –
\n 9<\/p>\n
5.4.2 The Company will make available to the
\n Executive the opportunity to sell his present primary residence at
\n appraised value through a relocation firm mutually acceptable to the
\n Executive and the Company; and<\/p>\n
5.4.3 All relocation payments and benefits will be
\n fully grossed-up for any applicable taxes.<\/p>\n
5.5 PERQUISITES. The Company shall provide the Executive
\nsuch perquisites of employment as are commonly provided to other senior
\nexecutives of the Company.<\/p>\n
6. TERMINATION.<\/p>\n
6.1 DEATH OR DISABILITY. This Agreement and the Period of
\nEmployment shall terminate automatically upon the Executive’s death. If the
\nCompany determines in good faith that the Disability of the Executive has
\noccurred (pursuant to the definition of “Disability” set forth below), it may
\ngive to the Executive written notice of its intention to terminate the
\nExecutive’s employment. In such event, the Executive’s employment with the
\nCompany shall terminate effective on the thirtieth day after receipt by the
\nExecutive of such notice given at any time after a period of one hundred twenty
\n(120) consecutive days of Disability or a period of one hundred eighty (180)
\ndays of Disability within any twelve (12) consecutive months, and, in either
\ncase, while such Disability is continuing (“Disability Effective Date”);
\nprovided that, within the thirty (30) days after such receipt, the Executive
\nshall not have returned to full-time performance of the Executive’s duties. For
\npurposes of this Agreement, “Disability” means the Executive’s inability to
\nsubstantially perform his duties hereunder, with reasonable accommodation, as
\nevidenced by a certificate signed either by a physician mutually acceptable to
\nthe Company and the Executive or, if the Company and the Executive cannot agree
\nupon a physician, by a physician selected by agreement of a physician designated
\nby the Company and a physician designated by the Executive; provided, however,
\nthat if such physicians cannot agree upon a third physician within thirty (30)
\ndays, such third physician shall be designated by the American Arbitration
\nAssociation. Until the Disability Effective Date, the Executive shall be
\nentitled to all compensation provided for under Section 4 hereof. It is
\nunderstood that nothing in this Section 6.1 shall serve to limit the Company’s
\nobligations under Section 7.2 hereof.<\/p>\n
6.2 BY THE COMPANY FOR CAUSE. During the Period of
\nEmployment after the Effective Date, the Company may terminate the Executive’s
\nemployment immediately for “Cause.” For purposes of this Agreement, “Cause”
\nshall mean that (i) the Executive has been convicted of a felony involving theft
\nor moral turpitude, or (ii) engaged in conduct that constitutes willful gross
\nneglect or willful gross misconduct with respect to employment duties which
\nresults in material economic harm to the Company; provided, however, that for
\nthe purposes of determining whether conduct constitutes willful gross
\nmisconduct, no act on Executive’s part shall be considered “willful” unless it
\nis done by the Executive in bad faith and without reasonable belief that the
\nExecutive’s action was in the best interests of the Company. Notwithstanding the
\nforegoing, the Company may not terminate the Executive’s employment for Cause
\nunless (i) a determination that Cause exists is made and approved by a majority
\nof the Company’s Board of Directors, (ii) the Executive is given at least thirty
\n(30) days written notice <\/p>\n
– 9 –
\n 10<\/p>\n
of the Board meeting called to make such determination, and (iii) the Executive
\nand his legal counsel are given the opportunity to address such meeting.<\/p>\n
6.3 BY EXECUTIVE FOR GOOD REASON. During the Period of
\nEmployment, the Executive’s employment hereunder may be terminated by the
\nExecutive for Good Reason upon fifteen (15) days’ written notice. For purposes
\nof this Agreement, “Good Reason” shall mean, without the Executive’s consent:<\/p>\n
6.3.1 Assignment to the Executive of any duties
\n inconsistent in any material respect with the Executive’s position
\n (including status, offices, titles and reporting relationships),
\n authority, duties or responsibilities as contemplated by Section 3 of
\n this Agreement, or any other action by the Company which results in a
\n significant diminution in such position, authority, duties or
\n responsibilities, excluding any isolated and inadvertent action not
\n taken in bad faith and which is remedied by the Company within ten (10)
\n days after receipt of notice thereof given by the Executive;<\/p>\n
6.3.2 Any failure by the Company to comply with
\n any of the provisions of Section 4 or 5 of this Agreement other than an
\n isolated and inadvertent failure not committed in bad faith and which
\n is remedied by the Company within ten (10) days after receipt of notice
\n thereof given by the Executive;<\/p>\n
6.3.3 The Executive being required to relocate to
\n a principal place of employment more than twenty-five (25) miles from
\n his principal place of employment with the Company in Atlanta, Georgia
\n as of the Effective Date;<\/p>\n
6.3.4 Delivery by the Company of a notice
\n discontinuing the automatic extension provision of Section 2 of this
\n Agreement;<\/p>\n
6.3.5 Failure by the Company to elect the
\n Executive to the position of sole Chairman of the Board of Directors,
\n in compliance with the terms of Section 3.1; or<\/p>\n
6.3.6 Any purported termination by the Company of
\n the Executive’s employment otherwise than as expressly permitted by
\n this Agreement.<\/p>\n
6.4 OTHER THAN FOR CAUSE OR GOOD REASON. The Executive or
\nthe Company may terminate this Agreement for any reason other than for Good
\nReason or Cause, respectively, upon thirty (30) days written notice to the
\nCompany or Executive, as the case may be. If the Executive terminates the
\nAgreement for any reason, he shall have no liability to the Company or its
\nsubsidiaries or affiliates as a result thereof. If the Company terminates the
\nAgreement, or if the Agreement terminates because of the death of the Executive,
\nthe obligations of the Company shall be as set forth in Section 7 hereof.<\/p>\n
6.5 NOTICE OF TERMINATION. Any termination by the Company
\nor by the Executive shall be communicated by a Notice of Termination to the
\nother party hereto given in accordance with Section 19.2 of this Agreement. For
\npurposes of this Agreement, a “Notice of Termination” means a written notice
\nwhich (i) indicates the specific termination provision in this<\/p>\n
– 10 –
\n 11<\/p>\n
Agreement relied upon, (ii) sets forth in reasonable detail, if necessary, the
\nfacts and circumstances claimed to provide a basis for termination of the
\nExecutive’s employment under the provision so indicated, and (iii) if the Date
\nof Termination (as defined below) is other than the date of receipt of such
\nnotice, specifies the termination date. The failure by the Executive or Company
\nto set forth in the Notice of Termination any fact or circumstance which
\ncontributes to a showing of the basis for termination shall not waive any right
\nof such party hereunder or preclude such party from asserting such fact or
\ncircumstance in enforcing his or its rights hereunder.<\/p>\n
6.6 DATE OF TERMINATION. “Date of Termination” means the
\ndate specified in the Notice of Termination; provided, however, that if the
\nExecutive’s employment is terminated by reason of death or Disability, the Date
\nof Termination shall be the date of death of the Executive or the Disability
\nEffective Date, as the case may be.<\/p>\n
7. OBLIGATIONS OF THE COMPANY UPON TERMINATION. The following
\nprovisions describe the obligations of the Company to the Executive under this
\nAgreement upon termination of his employment. However, except as explicitly
\nprovided in this Agreement, nothing in this Agreement shall limit or otherwise
\nadversely affect any rights which the Executive may have under applicable law,
\nunder any other agreement with the Company, or under any compensation or benefit
\nplan, program, policy or practice of the Company.<\/p>\n
7.1 TERMINATION BY THE COMPANY FOR CAUSE OR RESIGNATION
\nWITHOUT GOOD REASON. In the event this Agreement terminates by reason of the
\ntermination of the Executive’s Employment by the Company for Cause or by reason
\nof the resignation of the Executive other than for Good Reason, the Company
\nshall pay to the Executive all Accrued Obligations (as defined below) in a lump
\nsum in cash within thirty (30) days after the Date of Termination. “Accrued
\nObligations” shall mean, as of the Date of Termination, the sum of (A) the
\nExecutive’s Base Salary through the Date of Termination to the extent not
\ntheretofore paid, (B) except as otherwise previously requested by the Executive,
\nthe amount of any bonus, incentive compensation, deferred compensation (not
\nincluding the amounts described in subsection 5.1 of this Agreement, which will
\nbe governed by subsection 5.1) and other cash compensation accrued by the
\nExecutive as of the Date of Termination to the extent not theretofore paid and
\n(C) any vacation pay, expense reimbursements and other cash entitlements accrued
\nby the Executive as of the Date of Termination to the extent not theretofore
\npaid.<\/p>\n
7.2 RESIGNATION WITH GOOD REASON; CHANGE IN CONTROL;
\nTERMINATION WITHOUT CAUSE; DEATH; DISABILITY. If (i) the Company shall terminate
\nthe Executive’s employment other than for Cause, (ii) the Executive shall
\nterminate his employment at any time for Good Reason or for any reason within
\ntwelve (12) months after a Change in Control or (iii) the Executive’s employment
\nshall terminate due to death or Disability, the Executive shall receive in
\naddition to the Accrued Obligations, the following:<\/p>\n
7.2.1 Twenty million dollars ($20,000,000), within
\n thirty (30) days after the Date of Termination;<\/p>\n
– 11 –
\n 12<\/p>\n
7.2.2 Immediate full vesting in (i.e., full
\n exercisability for) any options previously granted and not yet vested
\n as of the Date of Termination, including but not limited to any such
\n options granted under subsection 4.2.1 or subsection 4.4;<\/p>\n
7.2.3 Continued exercisability, through the end of
\n their respective full original terms, for all vested options, whether
\n previously vested or vesting under this subsection 7.2;<\/p>\n
7.2.4 Delivery of one share of Company stock for
\n each deferred stock unit vested to the Executive for which stock has
\n not yet been distributed to the Executive, as provided under subsection
\n 4.5;<\/p>\n
7.2.5 Immediate vesting of any deferred stock
\n units described in subsection 4.5 which have not yet vested to the
\n Executive, and delivery of one share of Company stock for each deferred
\n stock unit subject to accelerated vesting pursuant to this subsection
\n 7.2.5;<\/p>\n
7.2.6 For each year prior to 2006 for which the
\n annual option award required by subsection 4.4 has not yet been
\n granted, immediate grant of a ten-year stock option award having an
\n exercise price equal to the fair market value of a share of Company
\n stock on the Date of Termination and otherwise complying with the
\n requirements of subsection 4.4, with each such award being fully vested
\n immediately upon such grant and remaining exercisable for the full
\n ten-year term;<\/p>\n
7.2.7 Immediate full vesting in all other
\n otherwise unvested shares of restricted stock of the Company, deferred
\n stock units or other equity-based awards (if any) previously awarded to
\n the Executive, with immediate termination of all restrictions on such
\n awards;<\/p>\n
7.2.8 Immediate full vesting in the Deferred
\n Compensation described in Section 5.1 (i.e., no reductions pursuant to
\n subsection 5.1.2 or 5.1.3);<\/p>\n
7.2.9 Immediate full forgiveness of any
\n outstanding balance of principal and accrued interest on the Executive
\n Loan, as provided under subsection 4.2.4;<\/p>\n
7.2.10 Receipt of any other compensation and
\n Benefits accrued or earned and vested (if applicable) by the Executive
\n as of the Date of Termination (but not duplicative of the Accrued
\n Obligations); and<\/p>\n
7.2.11 For the remainder of the Period of
\n Employment (determined without regard to the termination thereof
\n pursuant to Section 6) or for three (3) years (whichever is longer),
\n the Company shall continue health, prescription drug, dental,
\n disability and life insurance benefits to the Executive and\/or the
\n Executive’s eligible family members at least equal to those which would
\n have been provided to them in accordance with Section 5.3 of this
\n Agreement if the Executive’s employment had not been terminated.<\/p>\n
– 12 –
\n 13<\/p>\n
7.2.12 For purposes of this Agreement, a “Change in
\n Control” shall be deemed to have occurred if:<\/p>\n
7.2.12.1 Any “person” (as defined in Section
\n 13(d) and 14(d) of the Securities Exchange Act of 1934, as
\n amended (the “Exchange Act”)), excluding for this purpose, (i)
\n the Company or any subsidiary of the Company, or (ii) any
\n employee benefit plan of the Company or any subsidiary of the
\n Company, or any person or entity organized, appointed or
\n established by the Company for or pursuant to the terms of any
\n such plan which acquires beneficial ownership of voting
\n securities of the Company, is or becomes the “beneficial
\n owner” (as defined in Rule 13d-3 under the Exchange Act),
\n directly or indirectly of securities of the Company
\n representing more than 20% of the combined voting power of the
\n Company’s then outstanding securities; provided, however, that
\n no Change in Control will be deemed to have occurred as a
\n result of a change in ownership percentage resulting solely
\n from an acquisition of securities by the Company; or<\/p>\n
7.2.12.2 During any two (2) consecutive
\n years (not including any period beginning prior to December 3,
\n 2000), individuals who at the beginning of such two (2) year
\n period constitute the Board of Directors of the Company and
\n any new director (except for a director designated by a person
\n who has entered into an agreement with the Company to effect a
\n transaction described elsewhere in this definition of Change
\n in Control) whose election by the Board or nomination for
\n election by the Company’s stockholders was approved by a vote
\n of at least two-thirds of the directors then still in office
\n who either were directors at the beginning of the period or
\n whose election or nomination for election was previously so
\n approved (such individuals and any such new director being
\n referred to as the “Incumbent Board”) cease for any reason to
\n constitute at least a majority of the Board; or<\/p>\n
7.2.12.3 Consummation of a reorganization,
\n merger or consolidation or sale or other disposition of all or
\n substantially all of the assets of the Company (a “Business
\n Combination”), in each case, unless, following such Business
\n Combination, (i) all or substantially all of the individuals
\n and entities who were the beneficial owners of outstanding
\n voting securities of the Company immediately prior to such
\n Business Combination beneficially own, directly or indirectly,
\n more than 50% of the combined voting power of the then
\n outstanding voting securities entitled to vote generally in
\n the election of directors, as the case may be, of the company
\n resulting from such Business Combination (including, without
\n limitation, a company which, as a result of such transaction,
\n owns the Company or all or substantially all of the Company’s
\n assets either directly or through one or more subsidiaries) in
\n substantially the same proportions as their ownership,
\n immediately prior to such Business Combination, of the
\n outstanding voting securities of the Company; or<\/p>\n
– 13 –
\n 14<\/p>\n
7.2.12.4 Approval by the stockholders of the
\n Company of a complete liquidation or dissolution of the
\n Company.<\/p>\n
7.2.13 Any other provision of this Section 7.2
\n notwithstanding, termination of the Executive’s employment due to
\n involuntary retirement on or after the Executive reaching age
\n seventy-two (72) will not be a termination of employment covered by
\n this Section 7.2.<\/p>\n
7.3 RETIREMENT AFTER AGE SIXTY-TWO. If the Executive’s
\nemployment with the Company terminates due to his retirement from the Company
\nafter he attains age sixty-two (62), all equity-based awards made to the
\nExecutive shall become fully vested and, if applicable, shall remain exercisable
\nthrough the end of their original term.<\/p>\n
7.4 COBRA RIGHTS. It is understood that the Executive’s
\nrights under this Section 7 are in lieu of all other rights which the Executive
\nmay otherwise have had upon termination of employment under this Agreement;
\nprovided, however, that no provision of this Agreement is intended to adversely
\naffect the Executive’s rights under the Consolidated Omnibus Budget
\nReconciliation Act of 1985.<\/p>\n
8. CHANGE IN CONTROL. In the event of a Change in Control of the
\nCompany: (i) all prior grants to the Executive of stock options, restricted
\nstock, deferred stock units or other equity-based awards (including but not
\nlimited to grants under subsections 4.2.1, 4.4 and 4.5) shall become fully
\nvested (and, if applicable, shall remain exercisable through the end of their
\nrespective full original terms); and (ii) the Executive shall be entitled to
\nreceive any other Change-in-Control protection applicable to other senior
\nexecutives of the Company, except to the extent that the application thereof
\nwould reduce the Executive’s rights or benefits under this Agreement.<\/p>\n
9. MITIGATION. In no event shall the Executive be obligated to
\nseek other employment or take any other action by way of mitigation of the
\namounts payable to the Executive under any of the provisions of this Agreement.
\nAny severance benefits payable to the Executive shall not be subject to
\nreduction for any compensation received from other employment.<\/p>\n
10. INDEMNIFICATION. The Company shall maintain, for the benefit
\nof the Executive, director and officer liability insurance in form at least as
\ncomprehensive as, and in an amount that is at least equal to, that maintained by
\nthe Company on the Effective Date. In addition, the Executive shall be
\nindemnified by the Company against liability as an officer and director of the
\nCompany and any subsidiary or affiliate of the Company to the maximum extent
\npermitted by applicable law. The Executive’s rights under this Section 10 shall
\ncontinue so long as he may be subject to such liability, whether or not this
\nAgreement may have terminated prior thereto.<\/p>\n
11. CONFIDENTIAL INFORMATION. The Executive shall hold in a
\nfiduciary capacity for the benefit of the Company all secret or confidential
\ninformation, knowledge or data relating to the Company, or any of its
\nsubsidiaries, affiliates and businesses, which shall have been obtained<\/p>\n
– 14 –
\n 15<\/p>\n
by the Executive pursuant to his employment by the Company or any of its
\nsubsidiaries and affiliates and which shall not have become public knowledge
\n(other than by acts by the Executive or his representatives in violation of this
\nAgreement). After termination of the Executive’s employment with the Company,
\nthe Executive shall not, without the prior written consent of the Company,
\ncommunicate or divulge any such information, knowledge or data to anyone other
\nthan the Company and those designated by it. In no event shall an asserted
\nviolation of the provisions of this Section 11 constitute a basis for deferring
\nor withholding any amounts otherwise payable to the Executive under this
\nAgreement.<\/p>\n
12. REMEDY FOR VIOLATION OF SECTION 11. The Executive acknowledges
\nthat the Company has no adequate remedy at law and will be irreparably harmed if
\nthe Executive breaches or threatens to breach the provisions of Section 11 of
\nthis Agreement, and, therefore, agrees that the Company shall be entitled to
\ninjunctive relief to prevent any breach or threatened breach of such Section and
\nthat the Company shall be entitled to specific performance of the terms of such
\nSection in addition to any other legal or equitable remedy it may have. Nothing
\nin this Agreement shall be construed as prohibiting the Company from pursuing
\nany other remedies at law or in equity that it may have or any other rights that
\nit may have under any other agreement.<\/p>\n
13. WITHHOLDING. Anything in this Agreement to the contrary
\nnotwithstanding, all payments required to be made by the Company hereunder to
\nthe Executive shall be subject to withholding, at the time payments are actually
\nmade to the Executive and received by him, of such amounts relating to taxes as
\nthe Company may reasonably determine it should withhold pursuant to any
\napplicable law or regulation. In lieu of withholding such amounts, in whole or
\nin part, the Company may, in its sole discretion, accept other provision for
\npayment of taxes as required by law, provided that it is satisfied that all
\nrequirements of law as to its responsibilities to withhold such taxes have been
\nsatisfied.<\/p>\n
14. ARBITRATION. Any dispute or controversy between the Company
\nand the Executive, whether arising out of or relating to this Agreement, the
\nbreach of this Agreement, or otherwise, shall be settled by arbitration
\nadministered by the American Arbitration Association (“AAA”) in accordance with
\nits Commercial Arbitration Rules then in effect, and judgment on the award
\nrendered by the arbitrator may be entered in any court having jurisdiction
\nthereof. Any arbitration shall be held before a single arbitrator who shall be
\nselected by the mutual agreement of the Company and the Executive, unless the
\nparties are unable to agree to an arbitrator, in which case, the arbitrator will
\nbe selected under the procedures of the AAA. The arbitrator shall have the
\nauthority to award any remedy or relief that a court of competent jurisdiction
\ncould order or grant, including, without limitation, the issuance of an
\ninjunction. However, either party may, without inconsistency with this
\narbitration provision, apply to any court having jurisdiction over such dispute
\nor controversy and seek interim provisional, injunctive or other equitable
\nrelief until the arbitration award is rendered or the controversy is otherwise
\nresolved. Except as necessary in court proceedings to enforce this arbitration
\nprovision or an award rendered hereunder, or to obtain interim relief, neither a
\nparty nor an arbitrator may disclose the existence, content or results of any
\narbitration hereunder without the prior written consent of the Company and the
\nExecutive. The Company and the Executive <\/p>\n
– 15 –
\n 16<\/p>\n
acknowledge that this Agreement evidences a transaction involving interstate
\ncommerce. Notwithstanding any choice of law provision included in this
\nAgreement, the United States Federal Arbitration Act shall govern the
\ninterpretation and enforcement of this arbitration provision. The arbitration
\nproceeding shall be conducted in Atlanta, Georgia or such other location to
\nwhich the parties may agree. The Company shall pay the costs of any arbitrator
\nappointed hereunder.<\/p>\n
15. REIMBURSEMENT OF LEGAL EXPENSES. In the event that the
\nExecutive is successful, whether in mediation, arbitration or litigation, in
\npursuing any claim or dispute involving the Executive’s employment with the
\nCompany, including any claim or dispute relating to (a) this Agreement, (b)
\ntermination of the Executive’s employment with the Company or (c) the failure or
\nrefusal of the Company to perform fully in accordance with the terms hereof, the
\nCompany shall promptly reimburse the Executive for all costs and expenses
\n(including, without limitation, attorneys’ fees) relating solely, or allocable,
\nto such successful claim. In any other case, the Executive and the Company shall
\neach bear all their own respective costs and attorneys’ fees.<\/p>\n
16. TAXES. In the event that the aggregate of all payments or
\nbenefits made or provided to, or that may be made or provided to, the Executive
\nunder this Agreement and under all other plans, programs and arrangements of the
\nCompany (the “Aggregate Payment”) is determined to constitute a “parachute
\npayment,” as such term is defined in Section 280G(b)(2) of the Internal Revenue
\nCode, the Company shall pay to the Executive, prior to the time any excise tax
\nimposed by Section 4999 of the Internal Revenue Code (“Excise Tax”) is payable
\nwith respect to such Aggregate Payment, an additional amount which, after the
\nimposition of all income and excise taxes thereon, is equal to the Excise Tax on
\nthe Aggregate Payment. The determination of whether the Aggregate Payment
\nconstitutes a parachute payment and, if so, the amount to be paid to the
\nExecutive and the time of payment pursuant to this Section 16 shall be made by
\nan independent auditor (the “Auditor”) jointly selected by the Company and the
\nExecutive and paid by the Company. The Auditor shall be a nationally recognized
\nUnited States public accounting firm which has not, during the two (2) years
\npreceding the date of its selection, acted in any way on behalf of the Company
\nor any affiliate thereof. If the Executive and the Company cannot agree on the
\nfirm to serve as the Auditor, then the Executive and the Company shall each
\nselect one accounting firm and those two firms shall jointly select the
\naccounting firm to serve as the Auditor. Notwithstanding the foregoing, in the
\nevent that the amount of the Executive’s Excise Tax liability is subsequently
\ndetermined to be greater than the Excise Tax liability with respect to which an
\ninitial payment to the Executive under this Section 16 has been made, the
\nCompany shall pay to the Executive an additional amount with respect to such
\nadditional Excise Tax (and any interest and penalties thereon) at the time and
\nin the amount determined by the Auditor so as to make the Executive whole, on an
\nafter-tax basis, with respect to such Excise Tax (and any interest and penalties
\nthereon) and such additional amount paid by the Company. In the event the amount
\nof the Executive’s Excise Tax liability is subsequently determined to be less
\nthan the Excise Tax liability with respect to which an initial payment to the
\nExecutive has been made, the Executive shall, as soon as practical after the
\ndetermination is made, pay to the Company the amount of the overpayment by the
\nCompany, reduced by the amount of any relevant taxes already paid by the
\nExecutive and not refundable, all as determined<\/p>\n
– 16 –
\n 17<\/p>\n
by the Auditor. The Executive and the Company shall cooperate with each other in
\nconnection with any proceeding or claim relating to the existence or amount of
\nliability for Excise Tax, and all expenses incurred by the Executive in
\nconnection therewith shall be paid by the Company promptly upon notice of demand
\nfrom the Executive.<\/p>\n
17. SUCCESSORS.<\/p>\n
17.1 This Agreement is personal to the Executive and
\nwithout the prior written consent of the Company shall not be assignable by the
\nExecutive otherwise than by will or the laws of descent and distribution. This
\nAgreement shall inure to the benefit of and be enforceable by the Executive’s
\nheirs and legal representatives.<\/p>\n
17.2 This Agreement shall inure to the benefit of and be
\nbinding upon the Company and its successors and assigns.<\/p>\n
17.3 The Company shall require any successor (whether
\ndirect or indirect, by purchase, merger, reorganization, consolidation,
\nacquisition of property or stock, liquidation, or otherwise) to all or a
\nsubstantial portion of its assets, by agreement in form and substance reasonably
\nsatisfactory to the Executive, expressly to assume and agree to perform this
\nAgreement in the same manner and to the same extent that the Company would be
\nrequired to perform this Agreement if no such succession had taken place.
\nRegardless of whether such an agreement is executed, this Agreement shall be
\nbinding upon any successor of the Company in accordance with the operation of
\nlaw, and such successor shall be deemed the “Company” for purposes of this
\nAgreement.<\/p>\n
17.4 As used in this Agreement, the term “Company” shall
\ninclude any successor to the Company’s business and\/or assets as aforesaid which
\nassumes and agrees to perform this Agreement by operation of law, or otherwise.<\/p>\n
18. REPRESENTATIONS.<\/p>\n
18.1 The Company represents and warrants that (i) the
\nexecution of this Agreement has been duly authorized by the Company, including
\naction of the Board and Committee, (ii) the execution, delivery and performance
\nof this Agreement by the Company does not and will not violate any law,
\nregulation, order, judgment or decree or any agreement, plan or corporate
\ngovernance document of the Company and (iii) upon the execution and delivery of
\nthis Agreement by the Executive, this Agreement shall be the valid and binding
\nobligation of the Company, enforceable in accordance with its terms, except to
\nthe extent enforceability may be limited by applicable bankruptcy, insolvency or
\nsimilar laws affecting the enforcement of creditors’ rights generally and by the
\neffect of general principles of equity (regardless of whether enforceability is
\nconsidered in a proceeding in equity or at law).<\/p>\n
18.2 The Executive represents and warrants to the Company
\nthat (i) the execution, delivery and performance of this Agreement by the
\nExecutive does not and will not violate any law, regulation, order, judgment or
\ndecree or any agreement to which the Executive is a party or by which he is
\nbound, (ii) although the Executive is bound by certain <\/p>\n
– 17 –
\n 18<\/p>\n
noncompetition, nonsolicitation and confidentiality covenants in an agreement
\nwith his immediately preceding employer, the Executive is not a party to or
\nbound by any employment agreement, noncompetition agreement or confidentiality
\nagreement with any person or entity that would interfere materially with this
\nAgreement or his performance of services hereunder, and (iii) upon the execution
\nand delivery of this Agreement by the Company, this Agreement shall be the valid
\nand binding obligation of the Executive, enforceable in accordance with its
\nterms, except to the extent enforceability may be limited by applicable
\nbankruptcy, insolvency or similar laws affecting the enforcement of creditors’
\nrights generally and by the effect of general principles of equity (regardless
\nof whether enforceability is considered in a proceeding in equity or at law).<\/p>\n
19. MISCELLANEOUS.<\/p>\n
19.1 This Agreement shall be governed by and construed in
\naccordance with the laws of the State of Georgia, without reference to
\nprinciples of conflicts of laws. The captions of this Agreement are not part of
\nthe provisions hereof and shall have no force or effect. This Agreement may not
\nbe amended or modified otherwise than by a written agreement executed by the
\nparties hereto or their respective successors and legal representatives.<\/p>\n
19.2 All notices and other communications hereunder shall
\nbe in writing and shall be given by hand delivery to the other party, by
\novernight courier, or by registered or certified mail, return receipt requested,
\npostage prepaid, addressed as follows:<\/p>\n
If to the Executive:<\/p>\n
Robert L. Nardelli
\n 1 Cobble Court
\n Loudonville, NY 12211<\/p>\n
with a copy to:<\/p>\n
Robert J. Stucker, Esq.
\n Vedder, Price, Kaufman & Kammholz
\n 222 N. LaSalle Street
\n 26th Floor
\n Chicago, IL 60601<\/p>\n
If to the Company:<\/p>\n
The Home Depot, Inc.
\n 2455 Paces Ferry Road
\n Atlanta, GA 30339
\n Attn: General Counsel<\/p>\n
– 18 –
\n 19<\/p>\n
or to such other address as either of the parties shall have furnished to the
\nother in writing in accordance herewith. Notice and communications shall be
\neffective when actually received by the addressee.<\/p>\n
19.3 None of the provisions of this Agreement shall be
\ndeemed to impose a penalty.<\/p>\n
19.4 The invalidity or unenforceability of any provision
\nof this Agreement shall not affect the validity or enforceability of any other
\nprovision of this Agreement.<\/p>\n
19.5 Any party’s failure to insist upon strict compliance
\nwith any provision hereof shall not be deemed to be a waiver of such provision
\nor any other provision hereof.<\/p>\n
19.6 This Agreement supersedes any prior employment
\nagreement or understandings, written or oral between the Company and the
\nExecutive and contains the entire understanding of the Company and the Executive
\nwith respect to the subject matter hereof.<\/p>\n
19.7 This Agreement may be executed simultaneously in two
\nor more counterparts, each of which shall be deemed an original, but all of
\nwhich together shall constitute one and the same instrument.<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
\ndates written below.<\/p>\n
THE HOME DEPOT, INC.<\/p>\n
By: \/s\/ Bernard Marcus
\n ——————
\n Bernard Marcus
\n Co-Chairman of the Board<\/p>\n
Date:<\/p>\n
By:
\n ———————
\n John L. Clendenin
\n Chairman of the Compensation
\n Committee of the Board<\/p>\n
Date:<\/p>\n
By: \/s\/ Robert L. Nardelli
\n ———————-
\n Robert L. Nardelli
\n President and Chief Executive Officer<\/p>\n
Date:<\/p>\n
– 19 –
\n 20<\/p>\n
APPENDIX A<\/p>\n
SCHEDULE FOR DEFERRED STOCK UNITS<\/p>\n
\n\n VESTING DATE DEFERRAL ELECTION DATE DISTRIBUTION DATE
\n
\n1. December 4, 2000 December 31, 2001 January 1, 2003<\/p>\n2. December 4, 2001 December 31, 2002 January 1, 2004<\/p>\n
3. December 4, 2002 December 31, 2003 January 1, 2005<\/p>\n
4. December 4, 2003 December 31, 2004 January 1, 2006<\/p>\n
5. December 4, 2004 December 31, 2005 January 1, 2007
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
– 20 –<\/p>\n
21<\/p>\n
[Home Depot Letterhead]<\/p>\n
January 19, 2001<\/p>\n
Mr. Robert L. Nardelli
\n1 Cobble Court
\nLoudonville, New York 12211<\/p>\n
Dear Bob:<\/p>\n
This letter is delivered to you as a supplement to your Employment
\nAgreement (the “Agreement”) with The Home Depot, Inc. (the “Company”) of even
\ndate herewith, as provided for in Paragraph 5.3 of the Agreement.<\/p>\n
During your Period of Employment with the Company and subject to the
\nterms of the Agreement, the Company will provide you with the following
\nbenefits, which shall satisfy the Company’s obligation to provide you with
\nbenefits no less than, in both scope and value of coverage, the benefits
\nprovided you by General Electric Company:<\/p>\n
1. Life Insurance. The Company will assume from General Electric Company,
\n its obligations under the following three insurance policies:<\/p>\n
(1) GE Executive Life Policy number 918490013U;
\n (2) Executive Life Policy number 955190365UE; and
\n (3) Leadership Life Policy number 945192518UE.<\/p>\n
Alternatively, at your option, the Company shall provide you with term
\n life insurance with a death benefit of $25 million, with a guaranteed
\n minimum term of fifteen (15) years.<\/p>\n
The Company will pay you, on or prior to such date as you are required
\n to pay federal, state or local taxes with respect to the provision of
\n the life insurance described in this item 1, an additional payment in
\n an amount sufficient to fully reimburse you with respect to all
\n federal, state and local taxes with respect to this life insurance and
\n with respect to receipt of the additional payment.<\/p>\n
2. Basic Life Insurance. In addition to the life insurance described in
\n paragraph 1, the Company will provide you with the life insurance
\n benefits generally provided to executives of the Company, subject the
\n usual terms under which such life insurance is normally offered from
\n time to time.<\/p>\n
3. Health Insurance. The Company shall provide you and your eligible
\n family members with full health care insurance under its Cigna
\n Preferred Provider Access plan (or similar plan), in accordance with
\n its terms as in effect from time to time.<\/p>\n
22<\/p>\n
4. Prescription Drug Program. You and your family will be entitled to
\n participate in the Company’s prescription drug program, in accordance
\n with its terms as in effect from time to time.<\/p>\n
5. Dental Insurance. You and your family will be able to participate in
\n the Company’s dental insurance program, in accordance with its terms as
\n in effect from time to time.<\/p>\n
6. Salary Continuation and Disability Insurance. You will be covered by
\n the Company’s salary continuation and long-term disability insurance
\n programs, in accordance with their terms as in effect from time to
\n time.<\/p>\n
7. Automobile. The Company shall provide you with the use of an
\n automobile, to be selected by you, such automobile to be similar in
\n class to that of the current Mercedes Benz S600. It is anticipated that
\n the automobile will be leased by the Company for a period up to three
\n years. The Company will provide you with a new leased or purchased
\n vehicle every three years. In addition, the Company shall pay for all
\n maintenance, repairs, insurance and similar cost related to the
\n automobile.<\/p>\n
The Company will pay you, on or prior to such date as you are required
\n to pay federal, state or local taxes with respect to the provision of
\n the automobile benefit described in this item 7, an additional payment
\n in an amount sufficient to fully reimburse you with respect to all
\n federal, state and local taxes with respect to this automobile benefit
\n and with respect to receipt of the additional payment.<\/p>\n
8. Aircraft. The Company will make available a private aircraft for use by
\n you and your family. The Company requires, where practicable, that you
\n travel by use of such aircraft, for security purposes. Your family’s
\n personal use of such aircraft will require the inclusion in your
\n taxable income, an amount equal to the related benefit of such
\n accommodations. Such inclusion shall be made as required under the
\n Internal Revenue Code and related regulations.<\/p>\n
The Company will pay you, on or prior to such date as you are required
\n to pay federal, state or local taxes with respect to the provision of
\n the aircraft benefit described in this item 8, an additional payment in
\n an amount sufficient to fully reimburse you with respect to all
\n federal, state and local taxes with respect to this aircraft benefit
\n and with respect to receipt of the additional payment.<\/p>\n
9. Professional Services. The Company shall, in addition to the benefits
\n provided to you under Paragraph 4.6 of the Agreement, reimburse you for
\n financial planning and tax consultation and services up to $150,000 per
\n three-year period.<\/p>\n
The Company will pay you, on or prior to such date as you are required
\n to pay federal, state or local taxes with respect to the provision of
\n the professional services benefit described in this item 9, an
\n additional payment in an amount sufficient to fully reimburse you with
\n respect to all federal, state and local taxes with respect to this
\n professional services benefit and with respect to receipt of the
\n additional payment.<\/p>\n
10. Retirement and 401(k) Plans. You will be entitled to participate in the
\n Company’s retirement and 401(k) plans, in accordance with the terms of
\n such plans in effect from time to time.<\/p>\n
23<\/p>\n
11. Employee Stock Purchase Plan. You will be entitled to participate in
\n the Company’s voluntary stock contribution plan, in accordance with its
\n terms as in effect from time to time.<\/p>\n
12. Cafeteria Plan. You will be entitled to participate in the Company’s
\n Cafeteria plan, in accordance with its terms as in effect from time to
\n time.<\/p>\n
13. Vacation. You will be entitled to six weeks of paid vacation, to be
\n taken at your discretion.<\/p>\n
14. Other Benefit Plans. You and your family will be entitled to
\n participate in any and all of the Company’s other benefits plans
\n applicable to senior executives, in accordance with their respective
\n terms as in effect from time to time.<\/p>\n
Very truly yours,<\/p>\n
By: \/s\/ Bernard Marcus
\n —————————————-
\n Bernard Marcus
\n Co-Chairman of the Board<\/p>\n
By: \/s\/ John L. Clendenin
\n —————————————-
\n John L. Clendenin
\n Chairman of the Compensation
\n Committee of the Board<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7786],"corporate_contracts_industries":[9493],"corporate_contracts_types":[9539,9544],"class_list":["post-39632","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-home-depot-inc","corporate_contracts_industries-retail__building","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39632","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39632"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39632"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39632"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39632"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}