As filed with the Securities and Exchange Commission
on January , 1998
Registration No. 333-
--------
===============================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------
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 94612-1888
(Address of Principal Executive Offices, Including Zip Code)
The Clorox Company Independent Directors' Stock-Based
Compensation Plan
(Full Title of Plans)
Edward A. Cutter
Senior Vice President - General Counsel and Secretary
The Clorox Company
1221 Broadway
Oakland, California 94612-1888
(Name and Address of Agent For Service)
(510) 271-7000
(Telephone Number, Including Area Code, of Agent For Service)
--------------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title Of Securities Amount To Be Proposed Maximum Offering Proposed Maximum Aggregate Amount Of
To Be Registered Registered Price Per Share (1) Offering Price (1) Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 100,000 Shares $76.4375 $7,643,750 $2,254.91
par value per share
</TABLE>
(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 of
the high and low prices reported on The New York Stock Exchange
on January 20, 1998.
=====================================================================
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 director
participants as specified by Rule 428(b)(1). Such documents need
not be filed with the 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, 1997, 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 its Registration Statement on Form 8-A filed October 20, 1987
under the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
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 January 21, 1998, Mr. Cutter owned approximately 83,888 shares of
the Registrant's Common Stock, including 48,158 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; for 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.
The Registrant has entered into agreements with certain directors
and officers that require the Registrant to indemnify such
persons against expenses, judgments, fines, settlements and
other amounts to the fullest extent permitted by law incurred in
connection with any proceeding to which any such person may be
made a party by reason of the fact that such person is or was a
director or officer of the Registrant or any of its affiliated
enterprises, provided such person acted in good faith and in a
manner such person reasonably believed to be in, or not opposed to,
the best interests of the Registrant and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 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 Independent Directors' Stock-Based
Compensation Plan. Incorporated by reference to Exhibit 10.19 of
the Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1997.
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 t
hereof.
(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
January 21, 1998.
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 or her 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 or she 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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ---------------------- ----------------------- ------------------
<S> <C> <C>
/s/G. CRAIG SULLIVAN Chairman of the Board, January 21, 1998
G. Craig Sullivan Chief Executive Officer
and Director (principal
executive officer)
/s/KAREN M. ROSE Group Vice President January 21, 1998
Karen M. Rose Chief Financial Officer
(principal financial
officer)
/s/HENRY J. SALVO, JR. Vice President-Controller January 21, 1998
Henry J. Salvo, Jr. (principal accounting
officer)
/s/DANIEL BOGGAN, JR. Director January 21, 1998
Daniel Boggan, Jr.
/s/JOHN W. COLLINS Director January 21, 1998
John W. Collins
/s/URSULA FAIRCHILD Director January 21, 1998
Ursula Fairchild
/s/TULLY M. FRIEDMAN Director January 21, 1998
Tully M. Friedman
/s/JUERGEN MACHOT Director January 21, 1998
Juergen Manchot
/s/DEAN O. MORTON Director January 21, 1998
Dean O. Morton
/s/KLAUS MORWIND Director January 21, 1998
Klaus Morwind
/s/EDWARD L. SCARFF Director January 21, 1998
Edward L. Scarff
/s/LARY R. SCOTT Director January 21, 1998
Lary R. Scott
/s/JAMES A. VOHS Director January 21, 1998
James A. Vohs
/s/C.A. WOLFE Director January 21, 1998
C.A. Wolfe
</TABLE>
<TABLE>
CAPTION>
EXHIBIT INDEX
Sequential
Exhibit Number Description Page No.
- -------------- ----------------------------------------------------------------------- ------------
<S> <C> <C>
4.1 Restated Certificate of Incorporation of the Registrant. 10
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 Independent Directors' Stock-Based *
Compensation Plan. Incorporated by reference to Exhibit 10.19 of the Registrant's
Annual Report on Form 10-K for the fiscal year ended June 30, 1997.
5.1 Opinion of Edward A. Cutter, Esq., Senior Vice President - General Counsel 21
and Secretary of the Registrant.
23.1 Consent of Edward A. Cutter, Esq. (included in Exhibit 5.1). 21
23.2 Consent of Deloitte & Touche LLP. 22
24.1 Power of Attorney (See page II-5). 7-8
</TABLE>
Exhibit 5.1
January 21, 1998
The Clorox Company
1221 Broadway
Oakland, California 92612-1888
Ladies and Gentlemen:
This opinion is given with respect to the Registration
Statement on Form S-8 (the "Registration Statement"),
to which this opinion is an exhibit, to be filed with
the Securities and Exchange Commission (the "Commission")
in connection with the registration under the Securities
Act of 1933, as amended, of an aggregate of 100,000
shares of Clorox Common Stock which may be issued pursuant
to The Clorox Company Independent Directors' Stock-Based
Compensation Plan (the "Plan").
I have examined the Registration Statement and the Clorox
Common Stock issuable pursuant to the Plan, as well as the
proceedings taken by you in connection with the adoption
of the Plan and the authorization of the issuance of the
Common Stock and such documents as I have deemed necessary
to render this opinion.
Based upon the forgoing, it is my opinion that:
1. All necessary corporate action has been duly taken to
adopt said Plan, and no approval of the Plan by the
stockholders of The Clorox Company was necessary in
connection therewith.
2. Said 100,000 shares of Clorox Common Stock have been reserved
for purposes of said Plan and such shares, when issued 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 Registration Statement.
Very truly,
/s/EDWARD A. CUTTER
Edward A. Cutter
Senior Vice President -
General Counsel and
Secretary
Exhibit 23.2
INDEPENDENT AUDITOR'S 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 July 30, 1997,
except for the second paragraph of Note 1 as to which
the date is September 2, 1997, incorporated by reference
in the Company's Annual Report on Form 10-K for the year
ended June 30, 1997.
/s/DELOITTE & TOUCHE LLP
San Francisco, California
January , 1998
Exhibit 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
THE CLOROX COMPANY
This corporation was originally incorporated on
September 5, 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 380,000,000, consisting of
375,000,000 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 or 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,
whichever 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 Association 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 Eight 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 19, 1997 By: /s/ G.C. SULLIVAN
G.C. Sullivan
Chairman of the Board,
President and
Chief Executive Officer
Attest: /s/ EDWARD A. CUTTER
Edward A. Cutter
Secretary
THE UNDERSIGNED, the duly elected, and qualified Assistant
Secretary of THE CLOROX COMPANY, a Delaware corporation,
does hereby certify the foregoing to be the Restated
Certificate of Incorporation of said Corporation.
Date: December 4, 1997 /s/ THOMAS W. HUCKABY
Thomas W. Huckaby
