As filed with the Securities and Exchange Commission
on June 17, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE CLOROX COMPANY
(Exact Name of Registrant as Specified in Its Charter)
Delaware 31-0595760
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
1221 Broadway
Oakland, California 92612-1888
(Address of Principal Executive Offices, Including Zip Code)
The Clorox Company 1996 Stock Incentive Plan
(Full Title of Plan)
Edward A. Cutter
Senior Vice President - General Counsel and Secretary
The Clorox Company
1221 Broadway
Oakland, California 92612-1888
(Name and Address of Agent For Service)
(510) 271-7000
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
Calculation of Registration Fee
- -----------------------------------------------------------
Proposed Proposed
Title of Number Maximum Maximum Amount of
Securities of shares Offering Aggregate Regis-
to be to be Price Per Offering tration
Registered Registered Share(1) Price Fee
- -----------------------------------------------------------
Common Stock, 3,500,000 $127.9375 $447,781,250 $135,691.29
$1.00
par value
(1) Estimated solely for the purpose of calculating the
registration fee. Pursuant to Rule 457(c) and Rule 457(h)
under the Securities Act of 1933, as amended (the "Securities
Act"), the proposed maximum offering price per share and
the proposed maximum aggregate offering price have been
determined on the basis of the average bid and ask prices
reported on The New York Stock Exchange on June 11, 1997.
In addition, pursuant to Rule 416(c) under the Securities
Act, this Registration Statement also covers an
indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plans described herein.
============================================================
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I of Form S-8 (Plan Information, Registrant
Information and Employee Plan Annual Information) will
be sent or given to employees as specified by Rule
428(b)(1). Such documents need not be filed with
Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents
incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form S-8,
taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of
1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by The Clorox Company (the
"Registrant") with the Commission are incorporated by
reference herein:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended June 30, 1996, which includes
audited financial statements for the Registrant's
latest fiscal year.
(b) All other reports filed by the Registrant pursuant
to Sections 13(a) or 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act") since the end of the
fiscal year covered by the audited financial statements
described in (a) above.
(c) The description of the Registrant's Common Stock
contained in the paragraph entitled "Voting at the
Annual Meeting," on page 1 of the Registrant's proxy
statement dated September 30, 1996.
All documents filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act, and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the
date of filing of such documents. Any statement contained in
a document incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Edward A. Cutter, Esq., who has rendered an opinion regarding
the validity of the securities being registered hereby, is
the Senior Vice President - General Counsel and Secretary of
the Registrant. As of April 30, 1997, Mr. Cutter owned
48,020 shares of the Registrant's Common Stock, including
32,115 shares issuable upon the exercise of stock options
that were exercisable within 60 days of such date.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law,
the Registrant has broad powers to indemnify its directors
and officers against liabilities that they may incur in
such capacities, including liabilities under the Securities Act.
Article Nine of the Registrant's Restated Certificate of
Incorporation provides that the liability of its directors
for monetary damages shall be eliminated to the fullest
extent permissible under Delaware law. Pursuant to Delaware
law, this includes elimination of liability for monetary
damages for breach of the directors' fiduciary duty of care
to the Registrant and its stockholders. These provisions
do not eliminate the directors' duty of care and, in appropriate
circumstances, equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under
Delaware law. In addition, each director will continue to
be subject to liability for: breach of the directors' duty
of loyalty to the Registrant and its stockholders; acts and
omissions not in good faith or involving intentional misconduct;
knowing violations of law; any transaction from which the
director derived an improper personal benefit; and payment
of dividends or approval of stock repurchases or redemptions
that are unlawful under Delaware law. Neither does the
provision affect a director's responsibilities under any other
laws, such as the federal securities laws, or state or federal
environmental laws. In addition, Part I of Article Eight of
the Registrant's Restated Certificate of Incorporation requires
that the Registrant indemnify its directors and officers to the
fullest extent permitted by Delaware law.
Policies of insurance are maintained by the Company under which
the directors and officers of the Company are insured, within
the limits and subject to the limitations of the policies,
against certain expenses in connection with the defense of
actions, suits or proceeding, and certain liabilities which
might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or
having been such directors or officers.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation of the
Registrant and Certificate of Correction to
Restated Certificate of Incorporation of the Registrant.
4.2 Bylaws (restated) of the Registrant. Incorporated
by reference to Exhibit 3(ii) of the Registrant's
Quarterly Report on Form 10-Q for the quarter
ended December 31, 1992.
4.3 The Clorox Company 1996 Stock Incentive Plan.
Incorporated by reference to Exhibit "A" of the
Registrant's Definitive Proxy Statement filed as
of September 27, 1996.
5.1 Opinion of Edward A. Cutter, Esq., Senior Vice
President - General Counsel and Secretary of the
Registrant.
23.1 Consent of Edward A. Cutter, Esq. (included in
Exhibit 5.1).
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (See page II-5).
Item 9. Undertakings.
(a) Rule 415 Offering.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed
in this Registration Statement or any material
change to such information in the Registration
Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if this Registration Statement is on Form S-3 or
Form S-8 and the information required to be included in a
post-effective amendment by those paragraphs is contained
in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered herein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents
By Reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities
offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
(c) Request for Acceleration of Effective Date or Filing
of Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions or otherwise, the Registrant has been advised that,
in the opinion of the Commission, such indemnification is
against public policy as expressed in the Securities Act,
and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred by a director,
officer or controlling person of the Registrant in the
successful defense or any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized,
in the City of Oakland, State of California, on May 21, 1997.
THE CLOROX COMPANY
By: /s/ G. CRAIG SULLIVAN
G. Craig Sullivan
Chairman and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and
appoints Edward A. Cutter, as attorney-in-fact, with the
power of substitution, for him in any and all capacities,
to sign any amendment to this Registration Statement and
to file the same, with exhibits thereto and other documents
in connection therewith, with the Commission, granting to
said attorney-in-fact, full power and authority to do and
perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact, or
his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
Signature Title Date
- -------------------- ----------------------- -------------------
<S> <C> <C>
/S/ G. CRAIG SULLIVAN Chairman of the Board, May 21, 1997
G. Craig Sullivan Chief Executive Officer
and Director (principal
executive officer)
/S/ WILLIAM F. AUSFAHL Group Vice President, May 21, 1997
William F. Ausfahl Chief Financial Officer
and Director (principal
financial officer)
/S/ HENRY J. SALVO, JR. Vice President-Controller May 21, 1997
Henry J. Salvo, Jr. (principal accounting
officer)
/S/ DANIEL BOGGAN, JR. Director May 21, 1997
Daniel Boggan, Jr.
/S/ JOHN W. COLLINS Director May 21, 1997
John W. Collins
/s/ URSULA FAIRCHILD Director May 21, 1997
Ursula Fairchild
/S/ JUERGEN MANCHOT Director May 21, 1997
Juergen Manchot
/S/ DEAN O. MORTON Director May 21, 1997
* Dean O. Morton
/S/ Director May 21, 1997
Klaus Morwind
/S/ EDWARD L. SCARFF Director May 21, 1997
Edward L. Scarff
/S/ LARY R. SCOTT Director May 21, 1997
Lary R. Scott
/S/ Director May 21, 1997
Forrest N. Shumway
/S/ JAMES A. VOHS Director May 21, 1997
James A. Vohs
/S/ C. A WOLFE Director May 21, 1997
C. A. Wolfe
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
Exhibit Number Description Sequential Page No.
- -------------- ----------- -------------------
<S> <C> <C>
4.1 Restated Certificate of Incorporation and Certificate of Correction 10
to Restated Certificate of Incorporation of the Registrant.
4.2 Bylaws (restated) of the Registrant. Incorporated by reference to *
Exhibit 3(ii) of the Registrant's Quarterly Report on Form 10-Q for
the quarter ended December 31, 1992.
4.1 The Clorox Company 1996 Stock Incentive Plan. Incorporated by *
reference to Exhibit "A" of the Registrant's Definitive Proxy
Statement filed as of September 27, 1996.
5.1 Opinion of Edward A. Cutter, Esq., Senior Vice President - General 19
Counsel and Secretary of the Registrant.
23.1 Consent of Edward A. Cutter, Esq. (included in Exhibit 5.1). 19
23.2 Consent of Deloitte & Touche LLP. 20
24.1 Power of Attorney (See page II-5). 7-8
7-8
</TABLE>
Exhibit 5.1
May 30, 1997
Ladies and Gentlemen:
This is with respect to the Registration Statement on Form S-8,
to which this opinion is an exhibit, covering 3,500,000
shares of Clorox Common Stock which may be issued pursuant
to stock awards and the exercise of options granted under
The Clorox Company 1996 Stock Incentive Plan (the "Plan").
It is my opinion that:
1. All necessary corporate action has been duly taken to adopt
said Plan and said Plan was duly approved by action of
the stockholders of The Clorox Company.
2. Said 3,500,000 shares of Clorox Common Stock have been
reserved for purposes of said Plan and such shares, when
issued on exercise of options granted in accordance with
the terms and conditions of said Plan, will be legally
issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion with the
Commission as an exhibit to the aforesaid registration statement.
Very truly,
/s/ EDWARD A. CUTTER
Edward A. Cutter
Senior Vice President -
General Counsel and
Secretary
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of The Clorox Company (the "Company")
on Form S-8 of our report dated August 8, 1996, incorporated
by reference in the Company's Annual Report on Form 10-K
for the year ended June 30, 1996.
DELOITTE & TOUCHE LLP
San Francisco, California
June 17, 1997
CERTIFICATE OF CORRECTION
TO
RESTATED CERTIFICATE OF INCORPORATION
OF
THE CLOROX COMPANY
THE CLOROX COMPANY, a corporation organized and
existing under the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
1. That a Restated Certificate of Incorporation
was filed with the Secretary of State of Delaware on November
24, 1987, and that said certificate requires correction as
permitted by subsection (F) of Section 103 of the General
Corporation Law of the State of Delaware.
2. The first paragraph of the Restated
Certificate of Incorporation is corrected to read as follows:
"This corporation was originally
incorporated on September 5, 1986."
IN WITNESS WHEREOF, THE CLOROX COMPANY has caused
this certificate to be signed by Charles R. Weaver, its
Chairman of the Board, and attested by Edward A. Cutter, its
Secretary, this day of December 9, 1987.
THE CLOROX COMPANY
By: /s/ CHARLES R. WEAVER
Charles R. Weaver
Chairman of the Board
Attest: ______________________
Edward A. Cutter
Secretary
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
THE CLOROX COMPANY
This corporation was originally incorporated on
August 29, 1986.
ARTICLE One
The name of the corporation is THE CLOROX COMPANY.
ARTICLE TWO
The address of the registered office of the
corporation in the State of Delaware is 1209 Orange Street in
the City of Wilmington, County of New Castle. The name of the
registered agent of the corporation at such address is The
Corporation Trust Company.
ARTICLE THREE
The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
ARTICLE FOUR
The total number of shares of stock which the
corporation shall have authority to issue is 180,000,000,
consisting of 175,000,000 shares of Common stock having a par
value of $1.00 per share and 5,000,000 shares of Preferred
Stock having a par value of $1.00 per share.
The board of directors of the corporation is
authorized, subject to limitations prescribed by law and the
provisions of this Article Four, to provide for the issuance
of the shares of Preferred Stock in series, and by filing a
certificate pursuant to the applicable law of the State of
Delaware, to establish from time to time the number of shares
to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such
series and the qualifications, limitations or restrictions
thereof.
The number of authorized shares of Preferred Stock
may be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of
the holders of a majority of the Common Stock, without a vote
of the holders of the Preferred Stock, or of any series
thereof, unless a vote of any such holders is required pursuant
to the certificate or certificates establishing the series of
Preferred Stock.
ARTICLE FIVE
The business and affairs of the corporation shall be
managed by the board of directors which shall consist of not
less than 9 persons. The exact number of directors shall be
fixed from time to time by, or in the manner provided in, the
by-laws of the corporation and may be increased or decreased
as therein provided. Directors of the corporation need not be
elected by ballot unless required by the by-laws. The board of
directors is authorized to adopt, amend or repeal the by-laws.
ARTICLE SIX
PART I
Vote Required For Certain Business Combinations
A. In addition to any affirmative vote required
by law or this Restated Certificate of Incorporation, and
except as otherwise expressly provided in Part II of this
Article Six, the following transactions:
(i) any merger or consolidation of this
corporation or any Subsidiary (as
hereinafter defined) into or with
(a) any Interested Stockholder (as
hereinafter defined); or
(b) any other corporation (whether or
not it is an Interested
Stockholder) which is, or after
such merger or consolidation would
be, an Affiliate (as hereinafter
defined) of an Interested
Stockholder; or
(ii) any sale, lease, exchange, mortgage,
pledge, transfer or other disposition
(in one transaction or a series of
transactions) to or with any Interested
Stockholder or any Affiliate of any
Interested Stockholder of any assets of
this corporation or any Subsidiary having
an aggregate Fair Market Value (as
hereinafter defined) of more than ten
percent (10%) of the Fair Market Value of
the consolidated total assets of this
corporation; or
(iii) the issuance or transfer by this
corporation or any Subsidiary (in one
transaction or a series of transactions)
of any securities of this corporation or
any Subsidiary to any Interested
Stockholder or any Affiliate of any
Interested Stockholder in exchange for
cash, securities or other property having
an aggregate Fair Market Value of more
than ten percent (10%) of the Fair Market
Value of the consolidated total assets of
this corporation; or
(iv) the adoption of any plan or proposal for
the liquidation of this corporation
proposed by or on behalf of an Interested
Stockholder of any Affiliate of any
Interested Stockholder; or
(v) any reclassification of this
corporation's securities (including any
reverse stock split), or recapitalization
of this corporation, or any merger or
consolidation of this corporation with
any of its Subsidiaries or any other
transaction (whether or not with or into
or otherwise involving an Interested
Stockholder) which has the effect,
directly or indirectly, of increasing
the proportionate share of the
outstanding shares of any class of
equity or convertible securities of this
corporation or any Subsidiary which is
directly or indirectly owned by any
Interested Stockholder;
shall require the affirmative vote of the holders of at least
eighty percent (80%) of the voting power of the then
outstanding shares of stock of this corporation entitled to
vote regularly in the election of directors (the "Voting
Stock") voting as a single class (it being understood that for
purposes of this Article Six, each share of the Voting Stock
other than Common Stock shall have the number of votes granted
to it pursuant to Article Four of this Restated Certificate of
Incorporation). Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that
a lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
B. The term "Business Combination" as used in this
Article Six shall mean any transaction which is referred to in
any one or more of clauses (i) through (v) of paragraph A
of Part I.
Part II
When Higher Vote is Not Required
The provisions of Part I of this Article Six shall
not be applicable to any particular Business Combination, and
such Business Combination shall require only such affirmative
vote as is required by law and any other provision of this
Restated Certificate of Incorporation, if all of the conditions
specified in either of the following paragraphs A and B are met:
A. The Business Combination shall have been
approved by a majority of the Disinterested Directors (as
hereinafter defined).
B. All of the following conditions shall have
been met:
(i) The aggregate amount of the cash and
the Fair Market Value as of the date
of the consummation of the Business
Combination of consideration other
than cash to be received per share by
holders of Common Stock in such
Business Combination shall be at least
equal to the higher of the following:
(a) (if applicable) the highest per
share price paid by the
Interested Stockholder for any
shares of Common Stock acquired
by it (1) within the two year
period immediately prior to the
first public announcement of
the proposal of the Business
Combination (the "Announcement
Date") or (2) in the transaction
in which it became an Interested
Stockholder, which ever is
higher; and
(b) the Fair Market Value per share
of Common Stock on the
Announcement Date or on the date
on which the Interested
Stockholder became an Interested
Stockholder (such latter date is
referred to in this Article Six
as the "Determination Date"),
whichever is higher.
(ii) The aggregate amount of the cash and
the Fair Market Value on the date of
the consummation of the Business
Combination of consideration other
than cash to be received per share by
the holders of shares of any other
class of outstanding Voting Stock shall
be at least equal to the highest of the
following (it being intended that the
requirements of this paragraph B(ii)
shall be required to be met with
respect to every class of outstanding
Voting Stock, whether or not the
Interested Stockholder has previously
acquired any shares of a particular
class of Voting Stock):
(a) (if applicable) the highest per
share price paid by the
Interested Stockholder for any
shares of such class of Voting
Stock acquired by it (1) within
the two-year period immediately
prior to the Announcement Date
or (2) in the transaction in
which it became an Interested
Stockholder, whichever is
higher;
(b) (if applicable) the highest
preferential amount per share to
which the holders of shares of
such class of Voting Stock are
entitled in the event of any
voluntary or involuntary
liquidation, dissolution or
winding up of this corporation;
or
(c) the Fair Market Value per share
of such class of Voting Stock on
the Announcement Date or on the
Determination Date, whichever is
higher.
(iii) The consideration to be received by
holders of a particular class of
outstanding Voting Stock (including
Common Stock) shall be in cash or in
the same form as the Interested
Stockholder has previously paid for
shares of such class of Voting Stock.
If the Interested Stockholder has paid
for shares of any class of Voting Stock
with varying forms of consideration,
the form of consideration for such
class of Voting Stock shall be either
cash or the form used to acquire the
largest number of shares of such class
of Voting Stock previously acquired by
it. The price determined in accordance
with paragraphs B(i) and B(ii) shall be
subject to appropriate adjustment in
the event of any stock dividend, stock
split, combination of shares or similar
event.
(iv) After such Interested Stockholder has
become an Interested Stockholder except
as approved by a majority of the
Disinterested Directors, there shall
have been:
(a) no failure to declare and pay at
the regular date therefor any
full quarterly dividends
(whether or not cumulative) on
the outstanding Preferred
Stock, if any; and
(b) no reduction in the effective
annual rate of dividends paid
on the Common Stock.
(v) After such Interested Stockholder has
become an Interested Stockholder, such
Interested Stockholder shall not have
received the benefit, directly or
indirectly (except proportionately as
a stockholder), of any loans, advances,
guarantees, pledges or other financial
assistance or any tax credits or other
tax advantages provided by the
corporation, whether in anticipation
of or in connection with such Business
Combination or otherwise.
Part III
Certain Definitions
For the purpose of this Article Six:
A. A "person shall mean any individual, firm,
corporation or other entity.
B. "Interested Stockholder" shall mean any
person (other than this corporation, any Subsidiary or any
compensation plan of this corporation) who or which:
(i) is the beneficial owner, directly or
indirectly, of more than 5% of the
voting power of the outstanding Voting
Stock; or
(ii) is an Affiliate of this corporation
and at any time within the two-year
period immediately prior to the date
in question was the beneficial owner,
directly or indirectly, of more than
five percent (5%) of the voting power
of the then outstanding Voting Stock;
or
(iii) is an assignee of or has otherwise
acquired or succeeded to any shares of
Voting Stock which were at any time
within the two-year period immediately
prior to the date in question
beneficially owned by any Interested
Stockholder, if such assignment or
succession shall have occurred in the
course of a transaction or series of
transactions not involving a public
offering within the meaning of the
Securities Act of 1933.
C. A person shall be a "Beneficial Owner" of
any Voting Stock:
(i) which such person or any of its
Affiliates or Associates (as
hereinafter defined) beneficially
owns, directly or indirectly; or
(ii) which such person or any of its
Affiliates or Associates has:
(a) the right to acquire (whether
such right is exercisable
immediately or only after the
passage of time), pursuant to
any agreement, arrangement or
understanding or upon the
exercise of conversion rights,
exchange rights, warrants or
options, or otherwise, or
(b) the right to vote pursuant to
any agreement arrangement or
understanding; or
(iii) which are beneficially owned, directly
or indirectly, by any other person with
which such person or any of its
Affiliates or Associates has any
agreement, arrangement or understanding
for the purpose of acquiring, holding,
voting or disposing of any shares of
Voting Stock.
D. For the purpose of determining whether a
person is an Interested Stockholder pursuant to paragraph B of
this Part III, the number of shares of Voting Stock deemed to
be outstanding shall include shares deemed owned through
application of paragraph C of this Part III but shall not
include any other shares of Voting Stock which may be issuable
pursuant to any agreement, arrangement or understanding, or
upon exercise of conversion rights, warrants or options, or
otherwise.
E. "Affiliate" or "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange
Act of 1934, as in effect on March 1, 1984.
F. "Subsidiary" means any corporation of which a
majority of any class of equity securities is owned, directly
or indirectly, by this corporation; provided, however, that
for the purposes of the definition of Interested Stockholder
set forth in paragraph B of this Part III, the term
"Subsidiary" shall mean only a corporation of which a majority
of each class of equity securities is owned, directly or
indirectly, by this corporation.
G. "Disinterested Director" means any member of
the board of directors of this corporation (the "Board") who
is unaffiliated with the Interested Stockholder by whom or on
whose behalf, directly or indirectly, the Business Combination
is proposed or was a member of the Board prior to the time that
such Interested Stockholder became an Interested Stockholder,
and any successor of a Disinterested Director who is
unaffiliated with such Interested Stockholder and is
recommended to succeed a Disinterested Director by a majority
of Disinterested Directors then on the Board.
H. "Fair Market Value" means:
(i) In the case of stock, the highest
closing sale price during the 30-day
period immediately preceding the date
in question of a share of such stock
as reported in the principal
consolidated transaction reporting
system for securities listed or
admitted to trading on the New York
Stock Exchange, or, if such stock is
not listed on such Exchange, on the
principal United States securities
exchange, registered under the
Securities Exchange Act of 1934 on
which stock is listed, or, if such
stock is not listed on such an
exchange, the highest closing bid
quotation with respect to a share of
such stock during the 30-day period
immediately preceding the date in
question on the National Association
of Securities Dealers, Inc. Automated
Quotation System or any system then
in use, and
(ii) in the case of property other than
cash or stock valued under (i) above,
the fair market value of such property
on the date in question as determined
in good faith by a majority of the
Disinterested Directors.
I. In the event of any Business Combination in
which this corporation is the surviving corporation, the
phrase "consideration other than cash to be received" as used
in clauses (i) and (ii) of paragraph B of Part II of this
Article Six shall include the Fair Market Value of the shares
of Common Stock and/or the shares of any other class of
outstanding Voting Stock retained by the holders of such
shares.
Part IV
Powers Of The Board Of Directors
A majority of the Disinterested Directors of this
corporation shall have the power and duty to determine for
the purposes of this Article Six, on the basis of information
known to them after reasonable inquiry:
A. whether a person is an Interested Stockholder;
B. the number of shares of Voting Stock
beneficially owned by any person;
C. whether a person is an Affiliate or Associate
of another; and
D. whether the assets which are the subject of
any Business Combination have, or the consideration to be
received for the issuance or transfer of securities by this
corporation or any Subsidiary in any Business Combination has,
an aggregate Fair Market Value of more than ten percent (10%)
of the Fair Market Value of the consolidated total assets of
this corporation.
Part V
Fiduciary Obligations
Nothing contained in this Article Six shall be
construed to relieve any Interested Stockholder from any
fiduciary obligation imposed by law.
Part VI
Amendment Or Repeal
The provisions set forth in this Article Six may not
be amended or repealed in any respect, unless such action is
approved by the affirmative vote of the holders of not less
than eighty percent (80%) of the then outstanding Voting Stock,
voting as a single class.
ARTICLE SEVEN
Action shall be taken by stockholders of the
corporation only at annual or special meetings of stockholders
and stockholders may not act by written consent.
ARTICLE EIGHT
Part I
Right To Indemnification
Each person who was or is made a party or is
threatened to be made a party to or is involved in any action,
suit or proceeding, whether civil, criminal, administrative or
investigative ("proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative,
is or was a director or officer of this corporation or is or
was serving at the request of the corporation as a director or
officer of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a
director or officer or in any other capacity while serving as
a director or officer shall be indemnified and held harmless
by the corporation to the fullest extent authorized by the
General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended, (but, in the case of any
such amendment, only to the extent that such amendment permits
the corporation to provide broader indemnification rights than
said law permitted the corporation to provide prior to such
amendment) against all expenses, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith; provided, however, that the corporation shall
indemnify any such person seeking indemnity in connection with
a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the
board of directors of the corporation. Such right shall be a
contract right and shall include the right to be paid by the
corporation expenses incurred in defending any such proceeding
in advance of its final disposition; provided, however, that,
the payment of such expenses incurred by a director or officer
in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such
person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of
the final disposition of such proceeding, shall be made only
upon delivery to the corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so
advanced if it should be determined ultimately that such
director or officer is not entitled to be indemnified under
this Article Eight or otherwise. The corporation may, by
action of the board of directors, provide indemnification to
employees and agents of the corporation with a lesser or the
same scope and effect as the foregoing indemnification of
directors and officers.
Part II
Right Of Claimant To Bring Suit
If a claim under Part I of this Article Eight is not
paid in full by the corporation within ninety days after a
written claim has been received by the corporation, the
claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and,
if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition
where the required undertaking has been tendered to the
corporation) that the claimant has not met the standards of
conduct which make it permissible under the General
Corporation Law of the State of Delaware for the corporation
to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the corporation.
Neither the failure of the corporation (including its board
of directors, independent legal counsel, or its stockholders)
to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard
of conduct set forth in said law, nor an actual determination
by the corporation (including its board of directors,
independent legal counsel, or its stockholders) that the
claimant had not met such applicable standard of conduct, shall
be a defense to the action or create a presumption that the
claimant had not met the applicable standard of conduct.
Part III
Non-Exclusivity Of Rights
The rights conferred on any person by Parts I and II
of this Article shall not be exclusive of any other right which
such person may have or hereafter acquire under any statute,
provision of this Restated Certificate of Incorporation,
by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
Part IV
Insurance
The corporation may maintain insurance, at its
expense, to protect itself and any such director or officer
of the corporation or of another corporation, partnership,
joint venture, trust or other enterprise against any such
expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such
expense, liability or loss under the General Corporation
Law of the State of Delaware.
ARTICLE NINE
A director of this corporation shall not be
personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the General Corporation Law of the State
of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit.
This Restated Certificate of Incorporation of THE
CLOROX COMPANY was adopted by The Board of Directors of this
corporation in accordance with Section 245 of the General
Corporation Law of the State of Delaware. It only restates
and integrates and does not further amend the provisions of
this corporation's Certificate of Incorporation as heretofore
amended or supplemented, and there is no discrepancy between
those provisions and the provisions of this Restated
Certificate of Incorporation.
THE CLOROX COMPANY
Date: November 18, 1987 By:/s/ CHARLES R. WEAVER
Charles R. Weaver
Chairman of the Board
Attest:/s/ EDWARD A. CUTTER
Edward A. Cutter
Secretary
THE UNDERSIGNED, the duly elected, and qualified
Secretary of THE CLOROX COMPANY, a Delaware corporation,
does hereby certify the foregoing to be the Restated
Certificate of Incorporation of said corporation.
Date: November 19, 1987 /s/ EDWARD A. CUTTER
