Retail

Is Home Depot Opening Itself Up To Future Activist Investors?

Jon C. Ogg

Published: March 8, 2016 4:28 pm

Last Updated: January 13, 2020 12:12 pm

Activist investors and larger investors alike have been pressing companies to become more open to outside influence. Why companies cooperate sometimes remains a mystery. Other times it is obvious why. Now comes news that The Home Depot, Inc. (NYSE: HD) is joining the waves of companies which are making the company more open to outside shareholders. The company has amended its by-laws to implement proxy access.

The largest home improvement retailer submitted a filing with the Securities and Exchange Commission. Home Depot said that its Leadership Development and Compensation Committee of its Board of the Directors adopted new forms of Executive Officer Equity Award Agreements for the granting of nonqualified stock options.

The company also went further. Home Depot’s filing noted that the company’s board adopted and approved amendments to the By-Laws on March 3, 2016. It turns out that Home Depot is making the company more open or accessible to outside investors.

Home Depot’s filing said:

The primary reason for the amendments was the implementation of proxy access. The By-Laws include a new Article I, Section 12 which permits a shareholder, or a group of up to 20 shareholders, owning 3% or more of the company’s outstanding stock continuously for at least three years, to nominate and include in the company’s proxy materials director nominees constituting up to the greater of 20% of the board or at least two directors, provided that the requirements set forth in the By-Laws are satisfied.

Other By-Laws changes were made as follows:

• Add in Article I, Sections 1 and 2 an advance notice window for nominating persons to the Board at an annual or special meeting of shareholders;
• Update the disclosure and related requirements for advance notice in Article 1, Sections 1 through 4 to clarify the information required, add defined terms and make other clarifications;
• Make changes to various provisions to reflect the adoption of proxy access, including Article I, Section 2 and Article I, Section 8;
• Add a provision in Article I, Section 6 regarding the Board’s authority to adopt rules or procedures for the conduct of shareholder meetings and in Article I, Section 7 regarding the scope of the Chairman’s authority to adjourn and recess meetings;
• Include an election in Article II, Section 7 to be governed by Section 141(c)(2) of the Delaware General Corporation Law, which provides greater flexibility with respect to the formation and authority of committees of the Board; and
• Make a number of other ministerial, clarifying and conforming changes.

Again, this move is not unique. It is becoming more common. Why the companies are offering to open themselves up is another matter. Sometimes it is voluntary, sometimes not.

Home Depot shares closed up 0.9% at $126.72 on Tuesday. Its 52-week range is $92.17 to $135.47 and it has a consensus analyst price target of $142.19.