EXHIBIT 10.7
THE HOME DEPOT,
INC.
2005 OMNIBUS STOCK INCENTIVE
PLAN
PERFORMANCE SHARE
AWARD
THIS PERFORMANCE SHARE
AWARD is made to
on this the
day of
,
(“Grant Date”) by THE HOME DEPOT, INC., a Delaware
corporation, with corporate headquarters located at 2455 Paces
Ferry Road, Atlanta, Georgia 30339.
The Company recognizes the value of
your service as a key employee of the Company and its subsidiaries
and has granted you this performance share award under the Plan,
subject to the following terms and conditions. Capitalized
terms shall have the meanings set forth in Section 13.
1.
Award . Subject to the conditions set forth herein,
the Company hereby grants to you, as of the Grant Date specified
above, a Target Award of
Performance Shares and a Maximum Award of
Performance Shares, which may be earned in accordance with Section
2.
2.
Performance Vesting . Subject to Sections 4, 5
and 6, the Company shall deliver to you one share of Common Stock
for each whole Performance Share that is earned in accordance with
the following schedule, based on the percentile ranking of the
Company’s TSR for the Performance Period relative to the TSR
of the S&P 500 for the Performance Period:
|
Company’s Relative
|
|
Percentage of Target Award
|
|
|
TSR Percentile Ranking
|
|
Performance Shares Earned
|
|
|
Below Threshold:
|
Below 40th
|
|
0
|
%
|
|
Threshold:
|
40th
|
|
50
|
%
|
|
Target:
|
50 th
|
|
100
|
%
|
|
Maximum:
|
100 th
|
|
300
|
%
|
If the Company’s relative TSR
ranking is between the percentile rankings listed above, the
percentage of the Target Award shall be interpolated, as set forth
on Schedule A . The percentile ranking is the
percentage of S&P 500 companies with TSR for the Performance
that is less than or equal to the Company’s TSR. If the
Company’s TSR is the same as another company’s TSR, the
Company shall be treated as having the higher TSR. The
percentile ranking shall be rounded to the nearest whole
percentage, with (.50) rounded up.
3.
Delivery of Shares . The number of shares of
Common Stock that you earn under Section 2 will be delivered to you
as soon as administratively practicable after the end of the
Performance Period. Before such delivery, the Committee shall
certify in writing the number of Performance Shares that you have
earned. No fractional shares will be delivered pursuant to
this Award and fractional shares shall be rounded down.
4.
Employment Termination . Except as provided in
Section 5, if your employment with the Company and its subsidiaries
terminates before the end of the Performance Period, this
Performance Share Award shall be forfeited on the date of such
termination.
5.
Death, Disability or Retirement . If your
employment with the Company and its subsidiaries terminates during
the Performance Period, because of your death, Disability or
retirement, in each case at or after Retirement Eligibility, you
will be entitled to all of the Performance Shares earned in
accordance with Section 2, determined at the end of the Performance
Period. If your employment with the Company and its subsidiaries
terminates during the Performance Period due to your death or
Disability before Retirement Eligibility, you will be entitled to a
prorated portion of the Performance Shares earned in accordance
with Section 2, determined at the end of the Performance Period and
based on the ratio of the
number of days you are employed
during the Performance Period to the total number of days in the
Performance Period. Any payments due on your death shall be
paid to your estate as soon as administratively practicable after
the end of the Performance Period. [ OPTIONAL :
Notwithstanding the foregoing, the Award shall be forfeited on the
date of your Discharge for Cause during the Performance Period, or
upon your violation of any of the confidentiality, non-competition
or non-solicitation provisions of Sections 10 and 11.]
6. [ OPTIONAL :
Change in Control . Unless previously
forfeited, the Award shall vest upon the occurrence of a Change in
Control in that number of Performance Shares determined as follows:
(i) the number of Performance Shares that would have been earned
under Section 2 treating the date of the Change in Control as the
last day of the Performance Period and prorating the Award based on
the ratio of the number of days during the Performance Period
before the Change in Control to the total number of days in the
Performance Period absent such Change in Control; plus (ii) the
number of Performance Shares representing the Target Award and
prorating the Target Award based on the ratio of the number of days
during the Performance Period after the Change in Control to the
total number of days in the Performance Period absent such Change
in Control. As soon as administratively practicable
after the date of the Change in Control, the Company shall deliver
to you one share of Common Stock for each such vested Performance
Shares, which payment shall be in lieu of any payment under Section
2.]
7.
Transferability . The Performance Shares shall
not be sold, pledged, assigned, hypothecated, transferred or
disposed of in any manner, whether by the operation of law or
otherwise. Any attempted transfer of the Performance Shares
prohibited by this Section 7 shall be null and void.
8.
Adjustments . The Performance Shares shall be
subject to adjustment or substitution in accordance with Section 11
of the Plan.
9.
Withholding . You are responsible for all
applicable federal, state and local income and employment taxes
(including taxes of any foreign jurisdiction) which the Company is
required to withhold at any time with respect to the Performance
Shares to satisfy its minimum statutory withholding
requirements. Such payment shall be made in full at your
election, in cash or check, by withholding from your next normal
payroll check, or by the tender of shares of Common Stock payable
under this Award. Shares of Common Stock tendered as payment
of required withholding shall be valued at the closing price per
share of Common Stock on the date such withholding obligation
arises.
10.
[ OPTIONAL : Confidential Information
. You acknowledge
that through your employment with the Company that you have
acquired and had access to the Company’s confidential and
proprietary business information and trade secrets. You agree
that the Company may prevent the use or disclosure of its
confidential information and proprietary business information and
trade secrets and acknowledges that the Company has taken all
reasonable steps necessary to protect the secrecy of the
information. You agree that you have not and in the future will not
use or disclose to any third party Confidential Information, unless
compelled by law and after notice to the
Company.]
11.
[ OPTIONAL (NON-LEGAL): Non-Competition and
Non-Solicitation . You agree that you will not, while
you are employed by the Company or any of its subsidiaries, and for
a period of 24 months subsequent to the termination of such
employment, enter into or maintain an employment or contractual
relationship, either directly or indirectly, to provide services to
a Competitor of substantially the same nature as you provided to
the Company or its subsidiaries. In the event you wish to
enter into any relationship or employment before the end of the
above-referenced 24 month period which would be covered by the
above non-compete provision, you agree to request written
permission from the Company’s Executive Vice President, Human
Resources before entering any such relationship or employment. The
Company may approve or not approve of the relationship or
employment at its absolute discretion. You agree that while you are
employed by the Company or any of its subsidiaries, and for a
period of 36 months
2
subsequent to the termination of
your employment, you will not directly or indirectly solicit any
person who is an employee of the Company to terminate his or her
relationship with the Company without prior written approval from
the Company’s Executive Vice President, Human
Resources.]
11.
[ OPTIONAL (LEGAL) : Non-Competition and
Non-Solicitation . The Company shall not limit your
rights to be employed by or engaged in any business or other
activities except as specifically set forth herein. You acknowledge
that during your employment with the Company, you have had access
to and acquired the Company’s privileged and Confidential
Information on a very wide range of issues and subject matter of
concern to the Company, and
that it would be impossible for you to provide legal services or
advice to a Competitor on the great majority of subjects without
creating a conflict of interest with respect to the Company as your
former client by using, relying on or disclosing this Confidential
Information in violation of your ethical obligations referred to
above. You agree
that given these circumstances it is reasonable that while
you are employed by the Company or any of its subsidiaries, and
for 24 months subsequent to the
termination of your employment, you will not provide legal services
or advice, either directly or indirectly, to any Competitor
without the p
