Exhibit 1.1
THE HOME DEPOT, INC.
Floating Rate Senior Notes due
December 16, 2009
5.250% Senior Notes due December 16,
2013
5.875% Senior Notes due December 16,
2036
Underwriting Agreement
December 13, 2006
To the Representatives
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
The Home Depot, Inc., a corporation
organized under the laws of Delaware (the “Company”),
proposes to sell to the several underwriters named in Schedule II
hereto (the “Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
principal amount of its securities identified in Schedule I hereto
(the “Securities”), to be issued under an indenture
(the “Indenture”) dated as of May 4, 2005, between
the Company and The Bank of New York, as trustee (the
“Trustee”). To the extent there are no additional
Underwriters listed on Schedule II other than you, the term
Representatives as used herein shall mean you, as Underwriters, and
the terms Representatives and Underwriters shall mean either the
singular or plural as the context requires. Any reference herein to
the Registration Statement, the Base Prospectus, any Preliminary
Prospectus, the Final Prospectus or the documents constituting the
Disclosure Package shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3, which were filed under the Exchange Act
on or before the Effective Date of the Registration Statement or
the issue date of the Base Prospectus, any Preliminary Prospectus,
the Final Prospectus or the documents constituting the Disclosure
Package, as the case may be; and any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus, the
Final Prospectus or the documents constituting the Disclosure
Package shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Base Prospectus,
any Preliminary Prospectus, the Final Prospectus or the documents
constituting the Disclosure Package, as the case may be, deemed to
be incorporated therein by reference. Certain terms used herein are
defined in Section 17 hereof.
1. Representations and
Warranties . The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the
requirements for use of Form S-3 under the Act and has prepared and
filed with the Commission a registration statement (the file
number
of which is set forth in Schedule I
hereto) on Form S-3, including a related Base Prospectus, for
registration under the Act of the offering and sale of the
Securities. The Company may have filed with the Commission, as part
of an amendment to the Registration Statement or pursuant to Rule
424(b), one or more Preliminary Prospectuses relating to the
Securities, each of which has previously been furnished to you. The
Company will file with the Commission a Final Prospectus relating
to the Securities in accordance with Rule 424(b). The Registration
Statement, at the Execution Time, is effective and meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the
Registration Statement did, and when the Final Prospectus is first
filed in accordance with Rule 424(b) and on the Closing Date (as
defined in Section 3 of this Agreement), the Final Prospectus
(and any supplement thereto) will, comply in all material respects
with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on
each Effective Date, the Registration Statement did not and will
not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; on the
Effective Date and on the Closing Date the Indenture did or will
comply in all material respects with the applicable requirements of
the Trust Indenture Act and the rules thereunder; and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date, the
Final Prospectus (together with any supplement thereto) will not
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or
any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or
any supplement thereto), it being understood and agreed that the
only such information furnished by or on behalf of any Underwriters
consists of the information described as such in Section 8
hereof.
(c) At the Execution Time, the
Disclosure Package does not and at the Closing Date (as defined in
Section 3), the Disclosure Package, as then amended or
supplemented by the Company, if applicable, will not contain any
untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in
or omissions from the Disclosure Package in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
(d)(i)At the time of the most recent
amendment of the Registration Statement for the purposes of
complying with Section 10(a)(3) of the Act (whether such
amendment
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was by post-effective amendment,
incorporated report filed pursuant to Sections 13 or 15(d) of the
Exchange Act or form of prospectus) and (ii) at the time the
Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c)) made any offer relating to the
Securities in reliance on the exemption in Rule 163, the Company
was or is (as the case may be) a Well-Known Seasoned
Issuer.
(e) At the earliest time after the
filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2)) of the Securities Act), the Company was not and is
not an Ineligible Issuer.
(f) Each Free Writing Prospectus
that the Company has filed, or is required to file, pursuant to
Rule 433(d) under the Act or that was prepared by or on behalf of
or used or referred to by the Company complies or will comply in
all material respects with the requirements of the Act and the
applicable rules and regulations of the Commission
thereunder.
(g) Each Issuer Free Writing
Prospectus does not include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated therein and any prospectus supplement deemed
to be a part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
Any certificate signed by any
officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the
Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale .
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees
to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto the principal amount of the
Securities set forth opposite such Underwriter’s name in
Schedule II hereto.
3. Delivery and Payment .
Delivery of and payment for the Securities shall be made on the
date and at the time specified in Schedule I hereto or at such time
on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date
and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein
called the “Closing Date”). Delivery of the Securities
shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company.
Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall
otherwise instruct.
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4. Offering by Underwriters .
It is understood that the several Underwriters propose to offer the
Securities for sale to the public as set forth in the Final
Prospectus.
5. Agreements . The Company
agrees with the several Underwriters that:
(a) Prior to the termination of the
offering of the Securities, the Company will not file any amendment
to the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus
unless the Company has furnished you a copy for your review prior
to filing. The Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed in a form
approved by the Representatives with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period
prescribed. The Company will promptly advise the Representatives
(1) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b), (2) when, prior to termination of the offering of
the Securities, any amendment to the Registration Statement shall
have been filed and become effective, (3) of any request by
the Commission or its staff for any amendment of the Registration
Statement or for any supplement to the Final Prospectus or for any
additional information, (4) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or of any notice that would prevent its use or the
institution or threatening of any proceeding for that purpose and
(5) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities
for sale in any jurisdiction or the institution or threatening of
any proceeding for such purpose. The Company will use all
reasonable efforts to prevent the issuance of any such stop order
or the occurrence of any such suspension or objection to the use of
the Registration Statement and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal
of such stop order or relief from such occurrence or objection,
including, if necessary, by filing an amendment to the Registration
Statement or a new registration statement and, if necessary, using
all reasonable efforts to have such amendment or new registration
statement declared effective as soon as practicable.
(b) If so requested by you, to
prepare a final term sheet, containing solely a description of
final terms of the Securities and the offering thereof, in a form
approved by you and to file such term sheet pursuant to Rule 433(d)
within the time required by such Rule.
(c) If, at any time prior to the
filing of the Final Prospectus pursuant to Rule 424(b), any event
occurs as a result of which the Disclosure Package would include
any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light
of the circumstances under which they were made at such time not
misleading, the Company will (1) notify promptly the
Representatives so that any use of the Disclosure Package may cease
until it is amended or supplemented; (2) amend or supplement
the Disclosure Package to correct such statement or omission; and
(3) supply any amendment or supplement to you in such
quantities as you may reasonably request.
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(d) If, at any time when a Final
Prospectus (or in lieu thereof the notice referred to in Rule
173(a) under the Act) relating to the Securities is required to be
delivered under the Act, any event occurs as a result of which the
Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made at such time not
misleading, or if it shall be necessary to amend the Registration
Statement, file a new registration statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder the Company promptly will
(1) notify the Representatives of such event,
(2) prepare, at its own expense, and file with the Commission,
subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement or new registration
statement which will correct such statement or omission or effect
such compliance, (3) use all reasonable efforts to have any
amendment to the Registration Statement or new registration
statement declared effective as soon as practicable in order to
avoid any disruption in use of the Final Prospectus, and
(4) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(e) As soon as practicable, the
Company will make generally available to its security holders and
to the Representatives an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158.
(f) Upon request, the Company will
furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto), and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Prospectus,
the Final Prospectus and each Issuer Free Writing Prospectus and
any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(g) The Company will arrange, if
necessary, for the qualification of the Securities for sale under
the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as
required for the distribution of the Securities and will pay any
fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; provided that in no
event shall the Company be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities,
in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless
it has obtained or will obtain the prior written consent of the
Representatives, and each Underwriter, severally and not jointly,
agrees with the Company that, unless it has obtained or will
obtain, as the case may be,
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the prior written consent of the
Company, it has not made and will not make any offer relating to
the Securities that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a Free Writing
Prospectus required to be filed by the Company with the Commission
or retained by the Company under Rule 433, other than the
information contained in any final term sheet prepared and filed
pursuant to Section 5(b) hereto; provided that the prior
written consent of the parties hereto shall be deemed to have been
given in respect of the Free Writing Prospectuses, if any, included
in Schedule III hereto. Any such Free Writing Prospectus consented
to by the Representatives or the Company is hereinafter referred to
as a “Permitted Free Writing Prospectus.” The Company
agrees that (x) it has treated and will treat, as the case may
be, each Permitted Free Writing Prospectus as an Issuer Free
Writing Prospectus and (y) it has complied and will comply, as
the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record
keeping.
Each Underwriter agrees to furnish
the Company with a copy of each proposed Free Writing Prospectus to
be prepared by or on behalf of such Underwriter before its first
use and not to use any Free Writing Prospectus, to which the
Company reasonably objects; provided, however, that without consent
of the Company each Underwriter may use one or more preliminary or
final term sheets relating to the Securities and the offering
thereof containing customary information.
6. Conditions to the Obligations
of the Underwriters . The obligations of the Underwriters to
purchase the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company contained
herein as of the Execution Time and the Closing Date, to the
accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following
additional conditions:
(a) The Final Prospectus, and any
supplement thereto, shall have been filed in the manner and within
the time period required by Rule 424(b), any final term sheet
contemplated by Section 5(b) hereto, and any other material
required to be filed by the Company pursuant to Rule 433(d) under
the Act, shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433;
and no stop order suspending the effectiveness of the Registration
Statement or any notice that would prevent its use shall have been
issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) You shall have received an
opinion, dated the Closing Date, of the General Counsel of the
Company, to the effect that:
(i) the Company has been duly
incorporated under the laws of the State of Delaware;
(ii) the Indenture has been duly
authorized, executed and delivered, has been duly qualified under
the Trust Indenture Act and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance
with
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its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors’
rights generally from time to time in effect and to general
principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in equity or at
law); and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture;
(iii) such counsel does not know of
any legal or governmental proceedings required to be described in
the Preliminary Prospectus or Final Prospectus in which are not
described as required or of any contracts or documents of a
character required to be described in the Preliminary Prospectus or
Final Prospectus or to be filed as exhibits to any document
incorporated by reference in the Preliminary Prospectus or Final
Prospectus which are not described and filed as
required;
(iv) the Registration Statement has
become effective under the Act; any required filing of the Base
Prospectus, any Preliminary Prospectus and the Final Prospectus,
and any supplements thereto, pursuant to Rule 424(b), has been made
in the manner and within the time period required by Rule 424(b);
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any notice that
would prevent its use has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information
contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; and such counsel
has no reason to believe that on the Effective Date the
Registration Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading
or that the Final Prospectus as of its date and on the Closing Date
included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading (in each case, other than the
financial statements and other financial and statistical
information contained therein, as to which such counsel need
express no opinion);
(v) such counsel has no reason to
believe that the documents specified in a schedule to such
counsel’s letter, consisting of those included in the
Disclosure Package at the Execution Time or as amended or
supplemented, if applicable, as of the Closing Date contained any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of circumstances under which they were made, not
misleading;
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(vi) this Agreement has been duly
authorized, executed and delivered by the Company;
(vii) no consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions
contemplated herein, except such as have been obtained
und
