EXECUTION COPY
$500,000,000
THE HOME DEPOT, INC.
6 1/2% SENIOR NOTES DUE SEPTEMBER 15, 2004
REGISTRATION RIGHTS AGREEMENT
September 27, 1999
Credit Suisse First Boston Corporation
Invemed Associates LLC
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010-3629
Ladies and Gentlemen:
THE HOME DEPOT, INC., a Delaware corporation (the "COMPANY"), proposes
to issue and sell to Credit Suisse First Boston Corporation, and Invemed
Associates LLC (together, the "INITIAL PURCHASERS"), upon the terms set forth in
a purchase agreement of even date herewith (the "PURCHASE AGREEMENT"),
$500,000,000 aggregate principal amount of its 6 1/2% Senior Notes due September
15, 2004 (the "INITIAL SECURITIES"). The Initial Securities will be issued
pursuant to an Indenture, dated as of September 27, 1999, (the "INDENTURE"),
between the Company and The Bank of New York, a New York banking corporation, as
trustee (the "TRUSTEE"). As an inducement to the Initial Purchasers to enter
into the Purchase Agreement, the Company agrees with the Initial Purchasers, for
the benefit of the holders of the Initial Securities (including, without
limitation, the Initial Purchasers), the Exchange Securities (as defined below)
and any Private Exchange Securities (as defined below) (collectively the
"HOLDERS"), as follows:
1. REGISTERED EXCHANGE OFFER. Unless not permitted by applicable law
(after the Company has complied with the ultimate paragraph of this Section 1),
the Company shall prepare and, not later than 90 days (such 90th day being a
"FILING DEADLINE") after the date on which the Initial Purchasers purchase the
Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file
with the Securities and Exchange Commission (the "COMMISSION") a registration
statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with
respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of
Transfer Restricted Securities (as defined in Section 6 hereof), who are not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer, to issue and deliver to such Holders, in exchange for
the Initial Securities, a like aggregate principal amount of debt securities of
the Company issued under the Indenture, identical in all material respects to
the Initial Securities (except for the transfer restrictions relating to the
Initial Securities) and registered under the Securities Act (the "EXCHANGE
SECURITIES"). The Company shall use its commercially reasonable efforts to (i)
cause such Exchange Offer Registration Statement to become effective under the
Securities Act within 180 days after the Closing Date (such 180th day being an
"EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration
Statement effective for not less than 20 business days (or longer, if required
by applicable law) after the date notice of the Registered Exchange Offer is
mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION
PERIOD").
If the Company commences the Registered Exchange Offer, the Company (i)
will be entitled to consummate the Registered Exchange Offer 30 days after such
commencement (provided that the Company has accepted all the Initial Securities
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer) and (ii) will be required to consummate the Registered Exchanged
Offer no later than 40 days after the date on which the Exchange Offer
Registration Statement is declared effective (such 40th day being the
"CONSUMMATION DEADLINE").
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities (as defined in Section 6
hereof) electing to exchange Initial Securities for Exchange Securities
(assuming that such Holder is not an affiliate of the Company within the meaning
of the Securities Act, acquires the Exchange Securities in the ordinary course
of such Holder's business, has no arrangements with any person to participate in
the distribution of the Exchange Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act (other than the prospectus
delivery requirements referred to in clause (i) of the next paragraph, if and to
the extent applicable) and without material restrictions under the securities
laws of the several states of the United States.
The Company acknowledges that, pursuant to current interpretations by
the Commission's staff of Section 5 of the Securities Act, in the absence of an
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applicable exemption therefrom, (i) each Holder that is a broker-dealer electing
to exchange Initial Securities, acquired for its own account as a result of
market making activities or other trading activities, for Exchange Securities
(an "EXCHANGING DEALER"), is required to deliver a prospectus containing the
information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in
the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section, and (c) Annex C hereto in the "Plan of Distribution" section of such
prospectus in connection with a sale of any such Exchange Securities received by
such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an
Initial Purchaser that elects to sell Private Exchange Securities (as defined
below) acquired in exchange for Initial Securities constituting any portion of
an unsold allotment is required to deliver a prospectus containing the
information required by Items 507 or 508 of Regulation S-K under the Securities
Act, as applicable, in connection with such sale.
The Company shall use its commercially reasonable efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Securities; PROVIDED, HOWEVER, that
(i) in the case where such prospectus and any amendment or supplement thereto
must be delivered by an Exchanging Dealer or an Initial Purchaser, such period
shall be the lesser of 135 days and the date on which all Exchanging Dealers and
the Initial Purchasers have sold all Exchange Securities held by them (unless
such period is extended pursuant to Section 3(j) below) and (ii) the Company
shall make such prospectus and any amendment or supplement thereto available to
any broker-dealer for use in connection with any resale of any Exchange
Securities for a period of not less than 135 days after the consummation of the
Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for (a) the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company
issued under the Indenture and identical in all material respects (including the
existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States) to the Initial
Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "SECURITIES".
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In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the definitive prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business day
on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and
not withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each
Holder of the Initial Securities, Exchange Securities or Private
Exchange Securities, as the case may be, equal in principal amount to
the Initial Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
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accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company in writing that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Initial Securities or the Exchange
Securities within the meaning of the Securities Act, (iii) such Holder is not an
"affiliate," as defined in Rule 405 of the Securities Act, of the Company or if
it is an affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) such
Holder is not engaged in, and does not intend to engage in, the distribution of
the Exchange Securities and (v) if such Holder is a broker-dealer, that it will
receive Exchange Securities for its own account in exchange for Initial
Securities that were acquired as a result of market-making activities or other
trading activities and that it will deliver a prospectus in connection with any
resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies as to
form in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not as of its date include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
2. SHELF REGISTRATION. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated within
220 days of the Issue Date, (iii) any Initial Purchaser so requests within 10
business days following consummation of the Registration Exchange Offer with
respect to the Initial Securities not eligible to be exchanged for Exchange
Securities in the Registered Exchange Offer (or the Private Exchange Securities)
and held by it following consummation of the Registered Exchange Offer or (iv)
any Holder of
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Transfer Restricted Securities (other than an Exchanging Dealer) shall notify
the Company within 10 business days following consummation of the Registered
Exchange Offer that it is not eligible to participate in the Registered Exchange
Offer or, in the case of any Holder (other than an Exchanging Dealer) that
participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of the exchange, the Company
shall take the following actions (the date on which any of the conditions
described in the foregoing clauses (i) through (iv) occur, including in the case
of clauses (iii) or (iv) the receipt of the required notice, being a "TRIGGER
DATE"):
(a) The Company shall, at its cost, as promptly as practicable
(but in no event more than 90 days after the Trigger Date (such 90th
day being a "FILING DEADLINE")) file with the Commission and thereafter
shall use its commercially reasonable efforts to cause to be declared
effective no later than 180 days after the Trigger Date (such 180th day
being an "EFFECTIVE DEADLINE") a registration statement (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer
Registration Statement, a "REGISTRATION STATEMENT") on an appropriate
form under the Securities Act relating to the offer and sale of the
Transfer Restricted Securities (as defined in Section 6 hereof) by the
Holders thereof from time to time in accordance with the methods of
distribution set forth in the Shelf Registration Statement and Rule 415
under the Securities Act (hereinafter, the "SHELF REGISTRATION");
PROVIDED, HOWEVER, that no Holder (other than an Initial Purchaser)
shall be entitled to have the Transfer Restricted Securities held by it
covered by such Shelf Registration Statement unless such Holder (i)
agrees in writing to be bound by all the provisions of this Agreement
applicable to such Holder and (ii) provides the Company in writing with
the information required by Section 3(n).
(b) The Company shall use its commercially reasonable efforts to
keep the Shelf Registration Statement continuously effective in order
to permit the prospectus included therein to be lawfully delivered by
the Holders of the relevant Transfer Restricted Securities for a period
of two years (or for such longer period if extended pursuant to Section
3(j) below) from the date of its effectiveness or such shorter period
that will terminate when all the Securities covered by the Shelf
Registration Statement (i) have been sold pursuant thereto or (ii) are
no longer restricted securities (as defined in Rule 144 under the
Securities Act, or any successor rule thereof); provided, however, that
the Company shall not be obligated to keep the Shelf Registration
Statement continuously effective to the extent set forth above, or to
keep the prospectus included therein usable for offers and sales of
Securities, if (i) the Company determines, in its reasonable judgment,
upon the advice of counsel, that the continued effectiveness of
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the Shelf Registration Statement or usability of any prospectus
included therein would (x) require the disclosure of material
information, which the Company has a bona fide business reason for
preserving as confidential, or (y) interfere with any financing,
acquisition, corporate reorganization or other material transaction or
development involving the Company or any of its subsidiaries or the
contemplated timing thereof, and (ii) the Company promptly thereafter
complies with the requirements of Section 3(j) hereof, if applicable.
The number of days of any actual Suspension Period (as defined below)
shall be added on to the end of the two-year period specified above.
Any such period during which the Company is excused from keeping the
Shelf Registration Statement effective and the prospectus included
therein usable for offers and sales of Securities is referred to herein
as a "SUSPENSION PERIOD." A Suspension Period shall commence on and
include the date that the Company gives notice that the Shelf
Registration Statement is no longer effective or the prospectus
included therein is no longer usable for offers and sales of Securities
and shall end on the earlier to occur of (1) the date on which each
seller of Securities covered by the Shelf Registration Statement either
receives the copies of the supplemented or amended prospectus
contemplated by Section 3(j) hereof or is advised in writing by the
Company that the use of the prospectus may be resumed, and (2) the
occurrence of a Suspension Period Limit (as defined below). There shall
be no more than three Suspension Periods in any 12-month period, the
aggregate number of days of such Suspension Periods shall not exceed 90
days in such 12 month period (collectively, the "SUSPENSION PERIOD
LIMITS") and no Suspension Period shall exceed 60 days. The Company
shall be deemed not to have used its commercially reasonable efforts to
keep the Shelf Registration Statement effective during the requisite
period if it voluntarily takes any action that would result in Holders
of Securities covered thereby not being able to offer and sell such
Securities during that period, unless such action is required by
applicable law.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and
the related prospectus and any amendment or supplement thereto, as of
the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply as to form in all material respects with the
applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
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3. REGISTRATION PROCEDURES. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior
to the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to
the prospectus included therein and, in the event that an Initial
Purchaser (with respect to any portion of an unsold allotment of
Initial Securities) is participating in the Registered Exchange Offer
or the Shelf Registration Statement, the Company shall use its
reasonable best efforts to reflect in each such document, when so filed
with the Commission, such comments as such Initial Purchaser reasonably
may propose; (ii) include the information set forth in Annex A hereto
on the cover, in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section and in Annex C
hereto in the "Plan of Distribution" section of the prospectus forming
a part of the Exchange Offer Registration Statement and include the
information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer, (iii) if requested
by an Initial Purchaser, include the information required by Items 507
or 508 of Regulation S-K under the Securities Act, as applicable, in
the prospectus forming a part of the Exchange Offer Registration
Statement; (iv) include within the prospectus contained in the Exchange
Offer Registration Statement a section entitled "Plan of Distribution"
attached hereto as Exhibit 3(a), reasonably acceptable to the Initial
Purchasers, which shall contain a summary statement of the positions
taken or policies made by the staff of the Commission with respect to
the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT")) of Exchange
Securities received by such broker-dealer in the Registered Exchange
Offer (a "PARTICIPATING BROKER-DEALER"), whether such positions or
policies have been publicly disseminated by the staff of the Commission
or such positions or policies, in the reasonable judgment of the
Initial Purchasers based upon advice of counsel (which may be in-house
counsel), represent the prevailing views of the staff of the
Commission; and (v) in the case of a Shelf Registration Statement,
include the names of the Holders who propose to sell Securities
pursuant to the Shelf Registration Statement as selling
securityholders.
(b) The Company shall give written notice to the Initial
Purchasers when the Registration Statement or any amendment thereto has
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been filed with the Commission and shall give written notice to the
Initial Purchasers and (i) in the case of a Shelf Registration
Statement, the Holders of the Securities covered thereby, or (ii) in
the case of an Exchange Offer Registration Statement, the Holders of
the Initial Securities and any Participating Broker-Dealer from whom
the Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which
notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite
changes have been made):
(i) when the Registration Statement or any post-effective
amendment thereto has been declared effective by the Commission;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or
the initiation or, threatening of any proceeding for such purpose;
and
(v) of the occurrence of any event, including, without
limitation, any event resulting in a Suspension Period, that
requires the Company to make changes in the Registration Statement
or the prospectus in order that the Registration Statement or the
prospectus do not contain an untrue statement of a material fact
nor omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they were
made) not misleading.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without charge,
at
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least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer and each
Initial Purchaser, and to any other Holder who so requests, without
charge, at least one copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including financial
statements and schedules, and, if any Initial Purchaser or any such
Holder requests, all exhibits thereto (including those incorporated by
reference).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of
the Shelf Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the
Shelf Registration Statement and any amendment or supplement thereto as
such person may reasonably request. The Company consents, subject to
the provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the Securities
covered by the prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other
persons required to deliver a prospectus following the Registered
Exchange Offer, without charge, as many copies of the final prospectus
included in the Exchange Offer Registration Statement and any amendment
or supplement thereto as such persons may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the
use of the prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Participating Broker-Dealer and
such other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale of
the Exchange Securities covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration
Statement.
(h) Prior to any public offering of the Securities pursuant to any
Registration Statement the Company shall register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification
of such Securities for offer and sale under the securities or "blue
sky" laws of such
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states of the United States as any Holder of such Securities reasonably
requests in writing and do any and all other acts or things reasonably
necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement;
PROVIDED, HOWEVER, that the Company shall not be required to (i)
qualify generally to do business in any jurisdiction where it is not
then so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction where it
is not then so subject.
(i) The Company shall cooperate with the Holders of the Securities
to facilitate the timely transfer of the Securities to be sold pursuant
to any Registration Statement free of any restrictive legends and, to
the extent consistent with the terms of the Indenture, facilitate the
timely preparation and delivery of certificates representing the
Securities in such denominations and registered in such names as the
Holders may request a reasonable period of time prior to sales of the
Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event (other than an event
resulting in a Suspension Period, in which case the Company must comply
with this Section 3(j) within 90 days of the termination of such
Suspension Period) contemplated by paragraphs (ii) through (v) of
Section 3(b) above during the period for which the Company is required
to maintain an effective Registration Statement, the Company shall
promptly prepare and file a post-effective amendment to the
Registration Statement or a supplement to the related prospectus and
any other required document so that, as thereafter delivered to Holders
of Securities or purchasers of Securities, the prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. If the Company notifies the Initial Purchasers,
the Holders of the Securities and any known Participating Broker-Dealer
in accordance with paragraphs (ii) through (v) of Section 3(b) above to
suspend the use of the prospectus until the requisite changes to the
prospectus have been made, then the Initial Purchasers, the Holders of
the Securities and any such Participating Broker-Dealers shall suspend
use of such prospectus, and the period of effectiveness of the Shelf
Registration Statement provided for in Section 2(b) above and the
Exchange Offer Registration Statement provided for in Section 1 above
shall each be extended by the number of days, without duplication of
any extension under Section 2(b), from and including the date of the
giving of such notice to and including the date when the Initial
Purchasers, the Holders of the Securities and any known Participating
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Broker-Dealer, as applicable, shall have received such amended or
supplemented prospectus pursuant to this Section 3(j) or the date when
none of the Securities represent Transfer Restricted Securities.
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the
Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, and provide the applicable trustee with
certificates for the Initial Securities, the Exchange Securities or the
Private Exchange Securities, as the case may be, in a form eligible for
deposit with The Depository Trust Company.
(l) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the
Registered Exchange Offer or the Shelf Registration and will make
generally available to its security holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) an earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90
days, if such period is a fiscal year) beginning with the first month
of the Company's first fiscal quarter commencing after the effective
date of the Registration Statement, which statement shall cover such
12-month period.
(m) The Company shall cause the Indenture to be qualified under
the Trust Indenture Act of 1939, as amended, in a timely manner and
containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(n) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company
such information, including the information specified in Item 507 or
Item 508 of Regulation S-K, as applicable, under the Securities Act,
regarding the Holder and the distribution of the Securities as the
Company may from time to time reasonably require for inclusion in the
Shelf Registration Statement, and the Company may exclude from such
registration the Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request. The
failure to include in the Shelf Registration Statement any Holder who
shall have not provided all such information shall not constitute a
Registration Default (as defined in Section 6(a) hereof). The Company
may require
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each Holder as to which a Shelf Registration Statement is effected to
furnish, update or confirm promptly to the Company information
regarding the Holder and the distribution of Securities required to be
disclosed in order to make the information previously furnished to the
Company by such Holder not materially misleading.
(o) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
and take a such other action, if any, as any Holder of the Securities
shall reasonably request in order to facilitate the disposition of the
Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall (i)
upon reasonable notice and during normal business hours, make
reasonably available for inspection by any underwriter participating in
any disposition pursuant to the Shelf Registration Statement and any
attorney, accountant or other agent retained by such Holders of the
Securities or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company
and (ii) use its reasonable best efforts to cause the Company's
officers, directors, employees, accountants and auditors to supply all
relevant information reasonably requested by any such underwriter,
attorney, accountant or agent in connection with the Shelf Registration
Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; PROVIDED, HOWEVER, that any
information that is designated in writing by the Company in good faith
as confidential at the time of delivery of such information shall be
kept confidential by such Holder or any such underwriter, attorney,
accountant or agent, unless such disclosure is made in the public
generally or through a third party without an accompanying obligation
of confidentiality; and PROVIDED, FURTHER, that the foregoing
inspection and information gathering shall be coordinated on behalf of
the Initial Purchasers by you and on behalf of the other parties, by
one counsel designated by and on behalf of such other parties as
described in Section 4 hereof.
(q) In the case of any Shelf Registration, the Company, if
requested by any Holder of Securities covered thereby, shall cause (i)
its counsel to deliver an opinion and updates thereof relating to the
Securities in customary form and substance substantially similar to
that customarily delivered in public offerings of Securities addressed
to such Holders and the managing underwriters, if any, thereof and
dated, in the case of the initial opinion, the effective date of such
Shelf Registration Statement; (ii)
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its officers to execute and deliver all customary documents and
certificates and updates thereof requested by any underwriters of the
applicable Securities and (iii) its independent public accountants to
provide to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and covering
matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested by
any Initial Purchaser or any known Participating Broker-Dealer, the
Company shall cause (i) its counsel to deliver to such Initial
Purchaser or such Participating Broker-Dealer signed opinion in the
form set forth in Section 6(c) of the Purchase Agreement with such
changes as are customary in connection with the preparation of a
Registration Statement and (ii) its independent public accountants to
deliver to such Initial Purchaser or such Participating Broker-Dealer a
comfort letter, in customary form, meeting the requirements as to the
substance thereof as set forth in Section 6(a) of the Purchase
Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Securities by Holders to the
Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall mark, or cause to be
marked, on the Initial Securities so exchanged that such Initial
Securities are being canceled in exchange for the Exchange Securities
or the Private Exchange Securities, as the case may be; in no event
shall the Initial Securities be marked as paid or otherwise satisfied.
(t) The Company will use its reasonable best efforts to (i) if the
Initial Securities have been rated prior to the initial sale of such
Initial Securities, confirm such ratings will apply to the Securities
covered by a Registration Statement, or (ii) if the Initial Securities
were not previously rated, cause the Securities covered by a
Registration Statement to be rated with the appropriate rating
agencies, if so requested by Holders of a majority in aggregate
principal amount of Securities covered by such Registration Statement,
or by the managing underwriters, if any.
(u) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities to be sold pursuant to the
14
Shelf Registration Statement or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "RULES") of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, the
Company will assist such broker-dealer in complying with the
requirements of such Rules, including, without limitation, by (i) if
such Rules, including Rule 2720, shall so require, engaging a
"qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Registration Statement relating
to such Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by
such Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information to
such broker-dealer as may be required in order for such broker-dealer
to comply with the requirements of the Rules.
(v) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Securities covered by a
Registration Statement contemplated hereby.
4. REGISTRATION EXPENSES. (a) All expenses incident to the Company's
performance of and compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement is ever filed or becomes
effective, including without limitation:
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registered
Exchange Offer and the Private Exchange and printing of
prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company;
15
(v) all application and filing fees in connection with
listing the Exchange Securities on a national securities exchange
or automated quotation system pursuant to the requirements hereof;
and
(vi) all fees and disbursements of independent certified
public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Company.
(b) In connection with any Registration Statement required by this
Agreement, the Company will reimburse the Initial Purchasers and the
Holders of Transfer Restricted Securities who are tendering Initial
Securities in the Registered Exchange Offer and/or selling or reselling
Securities pursuant to the "Plan of Distribution" contained in the
Exchange Offer Registration Statement of the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements
(which fees and disbursements shall be limited to $10,000) of not more
than one counsel, who shall be Davis Polk & Wardwell unless another
firm shall be chosen by the Holders of a majority in principal amount
of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
5. INDEMNIFICATION. (a) The Company will indemnify and hold harmless
each Holder of the Securities and any Participating Broker-Dealer and each
person, and their respective officers, directors and, in the case of
transactions pursuant to Section 3(o) hereof, underwriters and each person who
controls such Holder or such Participating Broker-Dealer within the meaning of
the Securities Act or the Exchange Act (each Holder, any Participating
Broker-Dealer and such controlling persons are referred to collectively as the
"INDEMNIFIED PARTIES") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including, but
not limited to, any losses, claims, damages, liabilities or actions relating to
purchases and sales of the Securities) to which each Indemnified Party may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating
16
to a Shelf Registration, or arise out of, or are based upon, the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and shall reimburse, as incurred,
the Indemnified Parties for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof, PROVIDED, HOWEVER, that (i) the Company
shall not be liable in any such case to the extent that such loss, claim,
damage, liability or action arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Indemnified Party or any
affiliate thereof specifically for inclusion therein and (ii) with respect to
any untrue statement or omission or alleged untrue statement or omission made in
any preliminary prospectus relating to a Shelf Registration Statement, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Holder or Participating Broker-Dealer from whom the person
asserting any such losses, claims, damages or liabilities purchased the
Securities concerned (or any affiliate of such Holder or Participating
Broker-Dealer), to the extent that a prospectus relating to such Securities was
required to be delivered by such Holder or Participating Broker-Dealer under the
Securities Act in connection with such purchase and any such loss, claim, damage
or liability of such Holder or Participating Broker-Dealer or any affiliate
thereof results from the fact that there was not sent or given to such person,
at or prior to the written confirmation of the sale of such Securities to such
person, a copy of the final prospectus if the Company had previously furnished
copies thereof to such Holder or Participating Broker-Dealer; PROVIDED FURTHER,
HOWEVER, that this indemnity agreement will be in addition to any liability
which the Company may otherwise have to such Indemnified Party. The Company
shall also indemnify underwriters, their officers and directors and each person
who controls such underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or
liabilities or any actions in respect thereof, to which the Company or
any such controlling person may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in a
17
Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each
case only to the extent that the untrue statement or omission or
alleged untrue statement or alleged omission was made in reliance upon
and in conformity with written information pertaining to such Holder
and furnished to the Company by or on behalf of such Holder
specifically for inclusion therein; and, subject to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred,
the Company for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with investigating
or defending any loss, claim, damage, liability or action in respect
thereof. This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Company or any of its
controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the
indemnifying party will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party (which consent shall
not be unreasonably withheld), be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof the indemnifying party
will not be liable to such indemnified party under this Section 5 for
any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in
connection with the defense thereof. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such
action, and does not include a statement as to or an admission of
fault, culpability or failure to act by or on behalf of any indemnified
party.
18
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received
by the indemnifying party or parties on the one hand and the
indemnified party on the other from the exchange of the Securities,
pursuant to the transactions contemplated by the applicable
Registration Statement or prospectus, or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities
(or actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company
on the one hand or such Holder or such other indemnified party, as the
case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any action or claim which
is the subject of this subsection (d). Notwithstanding any other
provision of this Section 5(d), the Holders of the Securities shall not
be required to contribute any amount in excess of the amount by which
the net proceeds received by such Holders from the sale of the
Securities pursuant to a Registration Statement exceeds the amount of
damages which such Holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each
person, if any, who controls such indemnified party within the meaning
of the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company.
19
(e) The agreements contained in this Section 5 shall survive the
sale of the Securities pursuant to a Registration Statement and shall
remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
6. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES. (a) Additional
interest (the "ADDITIONAL INTEREST") with respect to the Initial Securities and
the Private Exchange Securities shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through (iv) below a
"REGISTRATION DEFAULT":
(i) any Registration Statement required by this Agreement
is not filed with the Commission on or prior to the applicable
Filing Deadline;
(ii) any Registration Statement required by this Agreement
is not declared effective by the Commission on or prior to the
applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer has not been consummated
on or prior to the Consummation Deadline; or
(iv) any Registration Statement required by this Agreement
has been declared effective by the Commission but (A) such
Registration Statement thereafter ceases to be effective or (B)
such Registration Statement or the related prospectus ceases to be
usable in connection with resales of Transfer Restricted
Securities during the periods specified herein because either (1)
any event occurs as a result of which the related prospectus
forming part of such Registration Statement 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 not misleading, or (2) it
shall be necessary to amend such Registration Statement or
supplement the related prospectus, to comply with the Securities
Act or the Exchange Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue on the Securities over and above the
interest set forth in the title of the Securities from and including the date on
which any such Registration Default shall occur to but excluding the date on
which all
20
such Registration Defaults have been cured, at a rate of 0.50% per annum (the
"ADDITIONAL INTEREST RATE") (regardless of the number of Registration Defaults).
(b) A Registration Default referred to in Section 6(a)(iii) hereof
shall be deemed not to have occurred and be continuing in relation to a
Shelf Registration Statement or the related prospectus during any
Suspension Period if (i) such Registration Default has occurred solely
as a result of (x) the filing of a post-effective amendment to such
Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to
permit Holders to use the related prospectus or (y) other material
events, with respect to the Company that would need to be described in
such Shelf Registration Statement or the related prospectus and (ii) in
the case of clause (y), the Company is proceeding promptly and in good
faith to amend or supplement such Shelf Registration Statement and
related prospectus to describe such events; PROVIDED, HOWEVER, that in
any case if such Registration Default occurs for a continuous period in
excess of 30 days, Additional Interest shall be payable in accordance
with the above paragraph from the day such Registration Default occurs
until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section
6(a) above will be payable in cash on the regular interest payment
dates with respect to the Securities. The amount of Additional Interest
will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the Initial Securities or Private
Exchange Notes, as the case may be, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate
was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months), and the denominator of which
is 360.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until (i)
the date on which such Security has been exchanged by a person other
than a broker-dealer for a freely transferable Exchange Security in the
Registered Exchange Offer, (ii) following the exchange by a
broker-dealer in the Registered Exchange Offer of an Initial Security
for an Exchange Security, the date on which such Exchange Security is
sold to a purchaser who receives from such broker-dealer on or prior to
the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such
Security has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or (iv)
the date on which such Security is distributed to the public pursuant
to Rule 144 under the Securities Act or is saleable pursuant to Rule
144(k) under the Securities Act.
21
7. RULES 144 AND 144A. The Company shall use its reasonable best
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder of
Transfer Restricted Securities, make publicly available other information so
long as necessary to permit sales of their Transfer Restricted Securities
pursuant to Rules 144 and 144A. The Company covenants that it will take such
further action as any Holder of Transfer Restricted Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Transfer Restricted Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rules 144 and 144A
(including the requirements of Rule 144A(d)(4)). The Company will provide a copy
of this Agreement to prospective purchasers of Initial Securities identified to
the Company by the Initial Purchasers upon request. Upon the request of any
Holder of Initial Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
8. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering (subject to the approval
(which approval shall not be unreasonably withheld) of the Company).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
9. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, except by the
Company and the written consent of the Holders of a majority in
principal amount of the Securities affected by such amendment,
modification, supplement, waiver or consents.
22
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which
guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Initial Purchasers;
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8278
Attention: Transactions Advisory Group
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Fax No.: (212) 450-4800
Attention: Sarah Beshar
(3) if to the Company, at its address as follows:
The Home Depot, Inc.
2455 Paces Ferry Road, NW
Atlanta, GA 30339
Fax No.: (770) 384-2753
Attention: Dennis J. Carey
with a copy to:
The Home Depot, Inc.
2455 Paces Ferry Road, NW
Atlanta, GA 30339
Fax No.: (770) 384-2739
Attention: Kelly R. Caffarelli
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
23
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) NO INCONSISTENT AGREEMENTS. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof,
enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(d) THIRD PARTY BENEFICIARIES. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on
the one hand, and the Initial Purchasers, on the other hand, and shall
have the right to enforce such agreements directly to the extent they
may deem such enforcement necessary or advisable to protect their
rights or the rights of Holders hereunder.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the Company and its successors and assigns.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
(i) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
rem g provisions contained herein shall not be affected or impaired
thereby.
(j) SECURITIES HELD BY THE COMPANY. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company or its
affiliates (other than subsequent Holders of Securities if such
subsequent Holders are deemed to be affiliates solely by reason of
their holdings of such Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers and the Company in accordance with its
terms.
Very truly yours,
THE HOME DEPOT, INC
By: /s/ Carol B. Tome
-------------------------------
Name: Carol B. Tome
Title: Vice President-Treasurer
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
INVEMED ASSOCIATES LLC
by: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Andrew R. Taussig
------------------------------
Name: Andrew R. Taussig
Title: Managing Director
25
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market- making activities or other trading activities. The Company has agreed
that, for a period of 135 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Initial Securities, where such Initial Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. See "Plan of
Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 135 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until [________ __], 1999,
all dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.1
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
----------
(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
For a period of 135 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the Holders of the Securities (including any
broker-dealer) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
-------------------------------------
Address:
----------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities, it represents
that such Initial Securities were acquired by it as a result of market-making
activities or other trading activities, and acknowledges that it will deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.