As filed with the Securities and Exchange Commission on June 23, 1999.
Registration No. 333-69455
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO
FORM S-4
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 Identification No.)
of Incorporation or Organization)
1221 Broadway, Oakland, CA 94612-1888
(Address of Principal Executive Offices) (Zip Code)
First Brands Corporation 1989 Long Term Incentive Plan
First Brands Corporation 1994 Performance Stock Option and
Incentive Plan
First Brands Corporation Non-Employee Directors Stock Option Plan
(Full Title of the Plans)
G. C. Sullivan
Chairman of the Board and Chief Executive Officer
The Clorox Company
1221 Broadway
Oakland, CA 94612-1888
(Name and Address of Agent For Service)
510/271-7000
(Telephone Number, Including Area Code,
of Agent For Service)
With a copy to:
Peter D. Bewley
Senior Vice President - General Counsel and Secretary
The Clorox Company
1221 Broadway
Oakland, CA 94612-1888
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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 on Form S-8 amends
Registration Statement No. 333-69455, which was previously
filed on Form S-4 (the "Original Registration Statement")
in connection with the merger (the "Merger") of a wholly-owned
subsidiary of The Clorox Company (the "Registrant") with and
into First Brands Corporation ("First Brands"). In
connection with the filing of the Original Registration
Statement, 20,394,076 shares of the Registrant's Common
Stock, $1.00 par value per share (the "Common Stock"),
were registered with the Securities and Exchange Commission
and the applicable filing fee was paid. The number of
shares registered pursuant to the Original Registration
Statement included (i) those shares of Common Stock
expected to be distributed to holders of the common stock
of First Brands in connection with the Merger and (ii) 612,484
shares of Common Stock issuable upon exercise of options
outstanding under the First Brands 1989 Long Term Incentive
Plan, the First Brands 1994 Performance Stock Option and
Incentive Plan and the First Brands Non-Employee Directors
Stock Option Plan. All of the shares of Common Stock included
in this Post-Effective Amendment No. 1 were included in and
registered on the Original Registration Statement.
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 and registrant information and
employee plan annual information) has or will be sent or given
to employees as specified by Rule 428(b)(1) of the Securities
Act of 1933, as amended (the "Securities Act"). Such documents
need not be filed with the Securities and Exchange Commission
either as part of this Registration Statement or as prospectuses
or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents and the documents incorporated by reference
in this Registration Statement pursuant to Item 3 of Form S-8
(Part II hereof), taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The Clorox Company (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents
previously filed with the Securities and Exchange Commission
(the "SEC").
(a) The Registrant's latest Annual Report on Form 10-K for the
fiscal year ended June 30, 1998, filed with the SEC on
September 28, 1998, pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 1998, filed with the SEC
on November 12, 1998, pursuant to Section 13(a) of the Exchange
Act.
(c) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended December 31, 1998, filed with the SEC on
February 12, 1999, pursuant to Section 13(a) of the Exchange Act.
(d) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 1999, filed with the SEC on
May 14, 1999, pursuant to Section 13(a) of the Exchange Act.
(e) The description of the Registrant's Common Stock which is
contained in its Registration Statement on Form 8-A, No. 001-07151,
filed with the SEC on October 20, 1987, including any amendment or
report filed for the purpose of updating such description.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all
securities offered hereby 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 or deemed to be
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 subsequently
filed document which also is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such 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
Not Applicable.
Item 6. Indemnification of Director and Officers
Section 145(a) of the Delaware General Corporation Law
(the "DGCL") provides in relevant part that "a corporation may
indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation), by reason of the fact that he is or was a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or
not opposed to the best interest of the corporation, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful." With
respect to derivative actions, Section 145(b) of the DGCL
provides in relevant part that "[a] corporation may indemnify
any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment
in its favor. . . . [by reason of his service in one of the
capacities specified in the preceding sentence] against expenses
(including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action
or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the
corporation and except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper."
The Registrant's Restated Certificate of Incorporation provides
that the Registrant is required to indemnify to the full extent
permitted by the DGCL any person made, or threatened to be made,
a party to an action or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that the
person, or the testator or intestate of such person, is or was a
director or officer of the Registrant, or served any business as
a director or officer at the request of the Registrant. Expenses
incurred by a director of the Registrant in defending a civil
or criminal action, suit or proceeding by reason of the fact that
such person was a director of the Registrant (and not in any
other capacity, including if such person was serving at the
Registrant's request as a director or officer of another enterprise
or corporation) will be paid by the Registrant in advance of the
final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director to repay such
amount if it shall ultimately be determined that such person is
not entitled to be indemnified by the Registrant as authorized by
relevant sections of the DGCL. The Registrant will indemnify
officers or directors in connection with a proceeding initiated by
them only if such proceeding was authorized by the Registrant's
Board of Directors. Any person who is not paid pursuant to the
foregoing indemnification provisions 90 days after submitting a
written claim to the Registrant may sue to recover such unpaid
amounts and, if successful, will be entitled to be paid the
expense of prosecuting such claim (except for any such claims
as the Registrant is not permitted by law to indemnify, although
the burden of proving such defense will be on the Registrant).
Such Restated Certificate of Incorporation also provides that no
director will be liable to the Registrant for a breach of
fiduciary duty, except (1) for any breach of the director's duty
of loyalty to the Registrant or its stockholders, (2) for acts
or omissions not in good faith or which involve intentional
misconduct or a knowing violation of the law, (3) under
Section 174 of the DGCL, or (4) for any transaction from
which the director derived an improper personal benefit.
The Registrant may also maintain insurance at its expense,
to protect itself and any director or officer of the
Registrant or of another corporation or other enterprise
against any expense, liability or loss, whether or not the
Registrant would have the power to indemnify such person
against such expense, liability or loss under the DGCL.
The Registrant has purchased and maintains insurance on
behalf of any person who is or was a director or officer
against loss a rising from any claim asserted against him
and incurred by him in any such capacity, subject to
certain exclusions.
See also the undertakings set out in response to Item 9 herein.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit No. Description
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4.1 Restated Certificate of Incorporation of the
Registrant (incorporated by reference to
Exhibit 4.1 to the Registrant's Registration
Statement on Form S-8 (Commission File No. 333-44695))
dated January 22, 1998).
4.2 Restated Bylaws of the Registrant (incorporated
by reference to Exhibit 3(ii) to the Registrant's
Annual Report on Form 10-K for the fiscal year
ended June 30, 1998).
5.1 Opinion of Morrison & Foerster LLP as to the
legality of the shares of Common Stock which
were previously registered and included on the
Registration Statement on Form S-4 (No. 333-69455)
(incorporated by reference to Exhibit 5.1 of such
Registration Statement on Form S-4).
23.1 Consent of Deloitte & Touche LLP, Independent
Public Accountants.
23.2 Consent of KPMG LLP, independent public accountants.
23.3 Consent of Morrison & Foerster LLP with respect to
the use of its opinion as an exhibit to the
Registration Statement on Form S-4 (No. 333-69455)
(incorporated by reference to Exhibit 5.1 of such
Registration Statement on Form S-4).
24.1 Power of Attorney (incorporated by reference to
Exhibit 24.1 of the Registration Statement on
Form S-4 (No. 333-69455)).
Item 9. Undertakings
A. 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 of 1933, as amended (the "1933 Act"), (ii) to
reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement, and (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 this Registration
Statement, provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if 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 into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 Act, each
such post-effective amendment 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; and (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. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each
filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act that is incorporated by
reference into this 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. Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers or controlling
persons of the Registrant pursuant to the indemnity provisions
summarized in Item 6 above or otherwise, the Registrant has been
informed that in the opinion of the SEC such indemnification is
against public policy as expressed in the 1933 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 or paid by a director,
officer or controlling person of the Registrant in the successful
defense of 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 1933 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 Post-Effective Amendment No. I to the Registration
Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Oakland, State of California, on
June 22, 1999.
THE CLOROX COMPANY
By: /s/ PETER D. BEWLEY
Peter D. Bewley
Senior Vice President, General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to the Registration Statement has been
signed by the following persons in the capacities and on the
date indicated.
Signature Title Date
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/s/ G. C. SULLIVAN* Chairman of the Board June 22, 1999
G. C. Sullivan and Chief Executive
Officer
/s/ D. BOGGAN, JR.* Director June 22, 1999
D. Boggan, Jr.
/s/ J. W. COLLINS* Director June 22, 1999
J. W. Collins
/s/ U. FAIRCHILD* Director June 22, 1999
U. Fairchild
/s/ T. M. FRIEDMAN* Director June 22, 1999
T. M. Friedman
/s/ J. MANCHOT* Director June 22, 1999
J. Manchot
Director June 22, 1999
R. Matschullat
/s/ K. MORWIND* Director June 22, 1999
K. Morwind
/s/ E. L. SCARFF* Director June 22, 1999
E. L. Scarff
/s/ L. R. SCOTT* Director June 22, 1999
L. R. Scott
/s/ C. A. WOLFE* Director June 22, 1999
C. A. Wolfe
/s/ K. M. ROSE* Group Vice President - June 22, 1999
K. M. Rose Finance and Chief
Financial Officer
(Principal Financial
Officer)
/s/ H. J. SALVO, JR.* Vice President - June 22, 1999
H. J. Salvo, Jr. Controller
(Principal Accounting
Officer)
By: */s/ Peter D. Bewley
Peter D. Bewley
Attorney-in-fact
Exhibit 23.1
INDEPENDENT AUDITORS CONSENT
We consent to the incorporation by reference in this Post-Effective
Amendment No. 1 on Form S-8 to Registration Statement No. 333-69455
of The Clorox Company on Form S-4 of our report dated July 30, 1998,
appearing in and incorporated by reference in the Annual Report
on Form 10-K of The Clorox Company for the year ended June 30, 1998.
Deloitte & Touche LLP
/s/ DELOITTE & TOUCHE LLP
Oakland, California
June , 1999
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
The Clorox Company
We consent to the incorporation by reference in this
Registration Statement on Form S-8 of The Clorox Company
of our audit reports dated August 6, 1998, relating to
the consolidated balance sheets of First Brands Corporation
and subsidiaries as of June 30, 1998 and 1997, and the
related consolidated statements of income, stockholders'
equity and cash flows for each of the years in the three
year period ended June 30, 1998, and the related schedule,
which audit reports appear in the June 30, 1998 annual
report on Form 10-K of First Brands Corporation, in
the Quarterly Report on Form 10-Q of The Clorox Company
for the fiscal quarter ended December 31, 1998.
Pursuant to Rule 436(c) under the Securities Act of 1933,
such report is not considered part of a registration
statement prepared or certified by an accountant or a
report prepared or certified by an accountant within the
meaning of sections 7 and 11 of the Act.
/s/ KPMG LLP
New York, New York
June , 1999
