INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is entered into as of ________, 2010 (the
"Effective Date") by and between The Clorox Company, a
Delaware corporation (the "Company"), and ____________ (the "Indemnitee").
RECITALS
WHEREAS, the Board of Directors has determined that the ability to
attract and retain qualified persons as directors is essential and in the best
interests of the Company's stockholders and that the Company should act to
assure such persons that there shall be adequate certainty of protection through
insurance and indemnification against claims and actions against them arising
out of their service to and activities on behalf of the Company;
WHEREAS, the Company has adopted provisions in its Restated Certificate
of Incorporation providing for indemnification and advancement of expenses to
its directors and officers to the fullest extent authorized by the General
Corporation Law of the State of Delaware (the "DGCL"), and the Company wishes to clarify and
enhance the rights and obligations of the Company and the Indemnitee with
respect to indemnification and advancement of expenses;
WHEREAS, in order to induce and encourage highly experienced and capable
persons such as the Indemnitee to serve and continue to serve as directors of
the Company and in any other capacity as the Company may request, and to
otherwise provide specific contractual assurances that certain costs, judgments,
penalties, fines, liabilities, and expenses incurred by them in their defense of
litigation and claims made against them in connection with the good faith
performance of their duties to the Company are to be borne by the Company and
that they shall receive the maximum protection against such risks and
liabilities as may be afforded by applicable law, the Board of Directors of the
Company has determined that the following Agreement is reasonable and prudent to
promote and ensure the best interests of the Company and its stockholders;
and
WHEREAS, the Company desires to have the Indemnitee continue to serve as
a director of the Company and in any other capacity with respect to the Company
as the Company may request, as the case may be, free from undue concern for
unpredictable, inappropriate, or unreasonable legal risks and personal
liabilities.
AGREEMENT
NOW, THEREFORE, the parties hereto
agree as follows:
1. Definitions. For purposes of this Agreement:
(a) A "Change in Control" means, and shall be deemed to have occurred
if, on or after the date of this Agreement, (i) any “person” (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended), other than (A) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its subsidiaries acting in such capacity,
or (B) a corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the
Company, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under
said Act), directly or indirectly, of securities of the Company representing
more than 50% of the total voting power represented by the Company’s then
outstanding Voting Securities, (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the board of
directors of the Company and any new director whose election by the board of
directors of the Company or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof, (iii) the stockholders of
the Company approve a merger or consolidation of the Company with any other
corporation other than a merger or consolidation that would result in the Voting
Securities of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into Voting
Securities of the surviving entity) at least 50% of the total voting power
represented by the Voting Securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, (iv) the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of (in one
transaction or a series of related transactions) all or substantially all of its
assets, or (v) the Company shall file or have filed against it, and such filing
shall not be dismissed, any bankruptcy, insolvency or dissolution proceedings,
or a trustee, administrator or creditors committee shall be appointed to manage
or supervise the affairs of the Company.
(b) “Corporate Status” means the status of a person who is or was a
director (or a member of any committee of a board of directors), officer,
employee or agent (including without limitation a manager of a limited liability
company) of the Company or any of its subsidiaries, or of any predecessor
thereof, or is or was serving at the request of the Company as a director (or a
member of any committee of a board of directors), officer, employee or agent
(including without limitation a manager of a limited liability company) of
another entity, or of any predecessor thereof, including service with respect to
an employee benefit plan.
(c) "Disinterested Director" means a director of the Company who is not
or was not a party to the Proceeding in respect of which indemnification is
being sought by the Indemnitee.
(d) "Expenses" include, without limitation, expenses
incurred in connection with the prosecution, defense, appeal or settlement of,
or service as a witness or other participation in or preparation for, any
Proceeding, including attorneys' fees, witness fees and expenses, fees and
expenses of accountants, public relations consultants and other advisors,
retainers and disbursements and advances thereon, the premium, security for, and
other costs relating to any bond (including cost bonds, appraisal bonds, or
their equivalents), any other expenses of the types customarily incurred in
connection with a Proceeding, and any expenses of establishing a right to
indemnification or advancement under Sections 9, 11, 13, and 16
hereof.
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(e) "Independent Counsel" means a law firm or a member of a law firm
that neither is presently nor in the past five years has been retained to
represent (i) the Company or the Indemnitee in any matter material to either
such party (other than a matter in which Independent Counsel performed the same
kind of service as it is being engaged to perform under this Agreement) or (ii)
any other party to the Proceeding giving rise to a request for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Company or the Indemnitee in an action to determine the Indemnitee's
right to indemnification under this Agreement.
(f) "Proceeding" means any pending, threatened or completed
action, suit, arbitration, alternative dispute mechanism, inquiry, judicial,
administrative or legislative hearing, investigation or other proceeding,
including any and all appeals, whether of a civil, criminal, administrative,
legislative, investigative, or other nature.
(g) “Voting Securities” means any securities of the Company that
vote generally in the election of directors.
(h) References to the Company and its subsidiaries include any corporation,
limited liability company, partnership, joint venture, trust or other entity or
enterprise that before or after the Effective Date is party to a merger or
consolidation with the Company or any such subsidiary or that is a successor to
the Company as contemplated by Section 14 (whether or not such successor has
executed and delivered the written agreement contemplated by Section 14).
2. Service by the Indemnitee. The Indemnitee agrees to serve as a director
of the Company or one or more of
its subsidiaries and in such other capacities as the Indemnitee may serve at the
request of the Company from time to time, and by its execution of this Agreement
the Company confirms its request that the Indemnitee serve as a director and in
such other capacities. The Indemnitee shall be entitled to resign or otherwise
terminate such service with immediate effect at any time, and neither such
resignation or termination nor the length of such service shall affect the
Indemnitee’s rights under this Agreement.
3. Indemnification and Advancement of
Expenses. The Company
shall indemnify and hold harmless the Indemnitee, and shall pay to the
Indemnitee in advance of the final disposition of any Proceeding in any way
connected with, resulting from or relating to the Indemnitee’s Corporate Status
all Expenses incurred by or on behalf of the Indemnitee in connection with such
Proceeding, to the fullest extent permitted by applicable law in effect on the
Effective Date or as amended to increase the scope of permitted indemnification.
Without diminishing the scope of the rights provided by this Section, the rights
of the Indemnitee to indemnification and advancement of Expenses provided
hereunder shall include but shall not be limited to those rights hereinafter set
forth, except that no indemnification or advancement of Expenses shall be paid
to the Indemnitee in connection with any Proceeding initiated by the Indemnitee
other than (i) by way of defense, counterclaim or crossclaim, (ii) a Proceeding
to enforce the Indemnitee’s rights under this Agreement or under any applicable
law, other agreement, vote of stockholders or Disinterested Directors,
provisions of the Certificate of Incorporation or Bylaws of the Company,
insurance policy or otherwise, or (iii) an action, suit, or proceeding, or part thereof, that was
authorized or ratified by the Board of Directors of the Company.
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4. Action or Proceedings Other than an Action by
or in the Right of the Company. Except as limited by
Section 3 above, the Indemnitee shall be entitled to the indemnification rights
provided in this Section if the Indemnitee was or is a party or is threatened to
be made a party to, or was or is otherwise involved in, any Proceeding (other
than an action by or in the right of the Company) in any way connected with,
resulting from or relating to the Indemnitee’s Corporate Status. Pursuant to
this Section, the Indemnitee shall be indemnified, to the fullest extent
permitted by applicable law in effect on the Effective Date and as amended to
increase the scope of permitted indemnification, against all expense, liability,
and loss (including judgments, fines, excise and other taxes, assessments,
charges, interest or penalties, amounts paid in settlement, and Expenses)
incurred by or on behalf of the Indemnitee in connection with such
Proceeding.
5. Indemnity in Proceedings by or in the Right of
the Company. Except as
limited by Section 3 above, the Indemnitee shall be entitled to the
indemnification rights provided in this Section if the Indemnitee was or is a
party or is threatened to be made a party to, or was or is otherwise involved
in, any Proceeding brought by or in the right of the Company to procure a
judgment in its favor in any way connected with, resulting from or relating to
the Indemnitee’s Corporate Status. Pursuant to this Section, the Indemnitee
shall be indemnified, to the fullest extent permitted by applicable law in
effect on the Effective Date and as amended to increase the scope of permitted
indemnification, against all expense, liability, and loss (including judgments,
fines, excise and other taxes, assessments, charges, interest or penalties,
amounts paid in settlement, and Expenses) incurred by or on behalf of the
Indemnitee in connection with such Proceeding.
6. Indemnification for Expenses of Successful
Party. Notwithstanding any
limitations of Sections 4 and 5 above, to the extent that the Indemnitee has
been successful, on the merits or otherwise, in whole or in part, in any
Proceeding in any way connected with, resulting from or relating to the
Indemnitee’s Corporate Status, or in any claim, issue, or matter therein,
including, without limitation, the dismissal of any action without prejudice, or
if it is ultimately determined, by final judicial decision of a court of
competent jurisdiction from which there is no further right to appeal, that the
Indemnitee is otherwise entitled to be indemnified against Expenses, the
Indemnitee shall be indemnified against all Expenses incurred by or on behalf of
the Indemnitee in connection therewith.
7. Partial Indemnification. If the Indemnitee is entitled under any
provision of this Agreement to
indemnification by the Company for some or a portion of the expense, liability,
and loss (including judgments, fines, excise and other taxes, assessments,
charges, interest or penalties, amounts paid in settlement, and Expenses)
incurred by or on behalf of the Indemnitee in connection with any Proceeding,
but not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify the Indemnitee for the portion of such expense,
liability, and loss to which the Indemnitee is entitled.
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8. Indemnification for Expenses of a
Witness. Notwithstanding
any other provision of this Agreement, to the fullest extent permitted by
applicable law in effect on the Effective Date and as amended to increase the scope of
permitted indemnification, the Indemnitee shall be entitled to indemnification
against all Expenses incurred by the Indemnitee or on the Indemnitee's behalf
if, in any way connected with, resulting from or relating to the Indemnitee’s
Corporate Status, the Indemnitee appears as a witness, is interviewed, produces
documents or otherwise incurs Expenses in connection with a Proceeding to which
the Indemnitee neither is, nor is threatened to be made, a party.
9. Determination of Entitlement to
Indemnification. To
receive indemnification under this Agreement, the Indemnitee shall submit a
written request to the Secretary of the Company. Upon receipt by the Secretary
of the Company of a written request by the Indemnitee for indemnification
pursuant to Sections 4 or 5, the entitlement of the Indemnitee to
indemnification, to the extent not otherwise provided pursuant to the terms of
this Agreement, shall be determined by the following person or persons who shall
be empowered to make such determination: (a) If no Change in Control has
occurred, (i) the Board of Directors of the Company by a majority vote of
Disinterested Directors, whether or not such majority constitutes a quorum; (ii)
a committee of Disinterested Directors designated by a majority vote of such
directors, whether or not such majority constitutes a quorum; (iii) if there are
no Disinterested Directors, or if the Disinterested Directors so direct, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to the Indemnitee; or (iv) the stockholders of the
Company; or (b) in the event that a Change in Control has occurred, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to the Indemnitee. Such Independent Counsel shall be
selected by the Board of Directors and approved by the Indemnitee, except that
in the event that a Change in Control has occurred, Independent Counsel shall be
selected by the Indemnitee. Upon failure of the Board of Directors so to select
such Independent Counsel or upon failure of the Indemnitee so to approve (or so
to select, in the event a Change in Control has occurred), such Independent
Counsel shall be selected upon application to a court of competent jurisdiction.
The determination of entitlement to indemnification shall be made and, unless a
contrary determination is made, such indemnification shall be paid in full by
the Company not later than 45 calendar days after receipt by the Secretary of
the Company of a written request for indemnification. If the person making such
determination shall determine that the Indemnitee is entitled to indemnification
as to part (but not all) of the application for indemnification, such person
shall reasonably prorate such partial indemnification among the claims, issues,
or matters at issue at the time of the determination. The Indemnitee shall use
reasonable efforts to provide such documentation or information as is necessary
for such determination and is reasonably available to the Indemnitee. In no
event shall a determination be required in connection with advancement of
Expenses or in connection with indemnification for Expenses incurred as a
witness, interviewee or producer of documents or incurred in connection with any
Proceeding or portion thereof with respect to which the Indemnitee has been
successful on the merits or otherwise.
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10. Presumptions and Effect of Certain
Proceedings. The Secretary
of the Company shall, promptly upon receipt of the Indemnitee's written request
for indemnification, advise in writing the Board of Directors or such other
person or persons empowered to make the determination as provided in Section 9
that the Indemnitee has made such request for indemnification. Upon making such
request for indemnification, the Indemnitee shall be presumed to be entitled to
indemnification hereunder and the Company shall have the burden of proof in
making any determination contrary to such presumption. If the person or persons
so empowered to make such
determination shall have failed to make the requested determination with respect
to indemnification within 90 calendar days after receipt by the Secretary of the
Company of such request, a requisite determination of entitlement to
indemnification shall be deemed to have been made, and the Indemnitee shall be
absolutely entitled to such indemnification. The termination of any Proceeding
described in Sections 4 or 5 by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself (a)
create a presumption that the Indemnitee did not meet any applicable standard of
conduct or (b) otherwise adversely affect the rights of the Indemnitee to
indemnification except as may be provided herein.
11. Remedies of the Indemnitee in Cases of
Determination Not to Indemnify or to Advance Expenses; Right
to Bring Suit. In the
event that a determination is made that the Indemnitee is not entitled to
indemnification hereunder or if payment is not timely made following a
determination of entitlement to indemnification, including a deemed
determination, pursuant to Sections 9 and 10, or if an advancement of Expenses
is not timely made pursuant to Section 16, the Indemnitee may at any time
thereafter bring suit against the Company in a court of competent jurisdiction
in the State of Delaware seeking an adjudication of entitlement to such
indemnification or advancement of Expenses. The Company shall not oppose the
Indemnitee's right to seek any such adjudication. Further, in any suit brought
by the Company to recover an advancement of Expenses pursuant to the terms of an
undertaking, the Company shall be entitled to recover such Expenses upon a final
judicial decision of a court of competent jurisdiction from which there is no
further right to appeal that the Indemnitee is not entitled to be indemnified
for such Expenses. Neither the failure of the Company (including the
Disinterested Directors, a committee of Disinterested Directors, Independent
Counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the Indemnitee is proper in
the circumstances because the Indemnitee has met any applicable standard of
conduct, nor an actual determination by the Company (including the Disinterested
Directors, a committee of Disinterested Directors, Independent Counsel, or its
stockholders) that the Indemnitee has not met any applicable standard of conduct
shall create a presumption that the Indemnitee has not met such standard of
conduct, or, in the case of such a suit brought by the Indemnitee, be a defense
to such suit, and any Proceeding commenced by the Indemnitee challenging an
adverse determination shall be de novo with
respect to all determinations of fact and law. In any suit brought by the
Indemnitee to enforce a right to indemnification or to an advancement of
Expenses hereunder, or brought by the Company to recover an advancement of
Expenses pursuant to the terms of an undertaking, the burden of proving that the
Indemnitee is not entitled to be indemnified or to such advancement of Expenses,
under this Section 11 or otherwise, shall be on the Company. If a determination
is made or deemed to have been made pursuant to the terms of Section 9 or 10
that the Indemnitee is entitled to indemnification, the Company shall be bound
by such determination and is precluded from asserting that such determination
has not been made or that the procedure by which such determination was made is
not valid, binding, and enforceable. The Company further agrees to stipulate in
any court pursuant to this Section 11 that the Company is bound by all the provisions of this
Agreement and is precluded from making any assertions to the contrary. If the
court shall determine that the Indemnitee is entitled to any indemnification or
advancement of Expenses hereunder, the Company shall pay all Expenses incurred
by or on behalf of the Indemnitee in connection with such adjudication
(including, but not limited to, any appellate proceedings) to the fullest extent
permitted by law, and in any suit brought by the Company to recover an
advancement of Expenses pursuant to the terms of an undertaking, the Company shall pay all Expenses incurred by
or on behalf of the Indemnitee in connection with such suit to the extent the
Indemnitee has been successful, on the merits or otherwise, in whole or in part,
in defense of such suit, to the fullest extent permitted by law.
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12. Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of Expenses provided by this Agreement shall not be deemed exclusive
of any other right that the Indemnitee may now or hereafter acquire under any
applicable law, agreement, vote of stockholders or Disinterested Directors,
provisions of the Certificate of Incorporation or Bylaws of the Company,
insurance policy or otherwise.
13. Expenses in Connection with Enforcement or
Interpretation of This Agreement, etc. In the
event any Proceeding is initiated by the Indemnitee, the Company or any other
person to enforce or interpret this Agreement or any rights of the Indemnitee to
indemnification or advancement of Expenses (or related obligations of the
Indemnitee) under the Company’s Certificate of Incorporation, Bylaws or other
organizational agreement or instrument, any other agreement to which the
Indemnitee and the Company are party, any vote of stockholders or directors of
the Company, the DGCL, any other applicable law or any liability insurance
policy, the Company shall indemnify the Indemnitee against Expenses incurred by
the Indemnitee or on the Indemnitee’s behalf in connection with such Proceeding
to the fullest extent permitted by applicable law in effect on the Effective
Date and as amended to increase the scope of permitted indemnification.
14. Continuation of Indemnity. All agreements and obligations of the
Company contained herein shall survive the termination of the Indemnitee’s
Corporate Status. This Agreement shall be binding upon all successors and
assigns of the Company (including any person or group acquiring 50% or more of
the Company’s Voting Securities or any transferee of all or substantially all of
its assets and any successor by acquisition, merger, consolidation or operation
of law) and shall inure to the benefit of the Indemnitee's heirs, executors, and
administrators. The Company shall require and cause any such successor, by
written agreement in form and substance satisfactory to the Indemnitee,
expressly to assume and agree to perform this Agreement as if it were named as
the Company herein.
15. Notification and Defense of
Proceeding. Promptly after
receipt by the Indemnitee of notice of any Proceeding, the Indemnitee shall, if
a request for indemnification or an advancement of Expenses in respect thereof
is to be made against the Company under this Agreement, notify the Company in
writing of the commencement thereof; but the omission so to notify the Company
shall not relieve it from any liability that it may have to the Indemnitee.
Notwithstanding any other provision of this Agreement, with respect to any such
Proceeding of which the Indemnitee notifies the Company:
(a) The Company shall be entitled to participate therein at its own
expense;
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(b) Except as otherwise provided in this Section 15(b), to the extent that it
may wish, the Company, jointly with any other indemnifying party similarly
notified, shall be entitled to assume the defense thereof, with counsel
satisfactory to the Indemnitee. After notice from the Company to the Indemnitee
of its election so to assume the defense thereof, the Company shall not be liable to the Indemnitee
under this Agreement for any expenses of counsel subsequently incurred by the
Indemnitee in connection with the defense thereof except as otherwise provided
below. The Indemnitee shall have the right to employ the Indemnitee's own
counsel in such Proceeding, but the fees and expenses of such counsel incurred
after notice from the Company of its assumption of the defense thereof shall be
at the expense of the Indemnitee unless (i) the employment of counsel by the
Indemnitee has been authorized by the Company, (ii) the Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee in the conduct of the defense of such Proceeding, or
(iii) the Company shall not within 60 calendar days of receipt of notice from
the Indemnitee in fact have employed counsel to assume the defense of the
Proceeding, in each of which cases the fees and expenses of the Indemnitee's
counsel shall be at the expense of the Company. The Company shall not be
entitled to assume (or continue to assume) the defense of any Proceeding (I)
brought by or on behalf of the Company, (II) as to which the Indemnitee shall
have made the conclusion provided for in (ii) above or (III) after a Change in
Control has occurred; and
(c) The Company will not, without the prior written consent of the
Indemnitee, which may be provided
or withheld in the Indemnitee’s sole discretion, effect any settlement of any
Proceeding against the Indemnitee or which could have been brought against the
Indemnitee unless such settlement solely involves the payment of money by
persons other than the Indemnitee and includes an unconditional release of the
Indemnitee from all liability on any matters that are the subject of such
Proceeding and an acknowledgment that the Indemnitee denies all wrongdoing in
connection with such matters. The Company shall not be obligated to indemnify
the Indemnitee against amounts paid in settlement of a Proceeding against the
Indemnitee if such settlement is effected by the Indemnitee without the
Company’s prior written consent, which shall not be unreasonably withheld.
16. Advancement of Expenses. All Expenses incurred by or on behalf of the
Indemnitee in connection with any Proceeding in any way connected with,
resulting from or relating to the Indemnitee’s Corporate Status shall be paid by
the Company in advance of the final disposition of such Proceeding at the
request of the Indemnitee. To receive an advancement of Expenses under this
Agreement, the Indemnitee shall submit a written request to the Secretary of the
Company. Such request shall reasonably evidence the Expenses incurred by or on
behalf of the Indemnitee and shall include or be accompanied by an undertaking,
by or on behalf of the Indemnitee, to repay any amounts so advanced if it shall
ultimately be determined, by final judicial decision of a court of competent
jurisdiction from which there is no further right to appeal, that the Indemnitee
is not entitled to be indemnified for such amounts. The Indemnitee's undertaking
to repay any such amounts is not required to be secured and shall not bear
interest. The Company shall not impose on the Indemnitee additional conditions
to advancement or require from the Indemnitee additional undertakings regarding
repayment. Each such advancement of Expenses shall be made within 15 calendar
days after the receipt by the Secretary of the Company of such written request.
The Indemnitee's entitlement to indemnification and advancement of Expenses
under this Agreement shall include those incurred in connection with any
Proceeding contemplated by Section 11 or 13 or this Section 16 (including the
enforcement of this provision) to the fullest extent permitted by applicable law
in effect on the Effective Date and as amended to increase the scope of
permitted indemnification.
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17. Severability. If any provision or provisions of this
Agreement shall be held to be invalid, illegal, or unenforceable for any reason
whatsoever, (a) the validity, legality, and enforceability of the remaining
provisions of this Agreement (including, without limitation, all portions of any
paragraphs of this Agreement containing any such provision held to be invalid,
illegal, or unenforceable, that are not by themselves invalid, illegal, or
unenforceable) shall not in any way be affected or impaired thereby, and (b) to
the fullest extent possible, the provisions of this Agreement (including,
without limitation, all portions of any paragraph of this Agreement containing
any such provision held to be invalid, illegal, or unenforceable, that are not
themselves invalid, illegal, or unenforceable) shall be construed so as to give
effect to the intent of the parties that the Company provide protection to the
Indemnitee to the fullest enforceable extent.
18. Directors and Officers Liability
Insurance.
(a)
Maintenance of Insurance. So long as the Company or any of its
subsidiaries maintains liability insurance for any directors, officers,
employees or agents of any such person, the Company shall ensure that the
Indemnitee is covered by such insurance in such a manner as to provide the
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company’s and its subsidiaries’ then current directors and
officers. If at any date (i) such insurance ceases to cover acts and omissions
occurring during all or any part of the period of the Indemnitee’s Corporate
Status or (ii) neither the Company nor any of its subsidiaries maintains any
such insurance, the Company shall ensure that the Indemnitee is covered, with
respect to acts and omissions prior to such date, for at least six years (or
such shorter period as is available on commercially reasonable terms) from such
date, by other directors and officers liability insurance, in amounts and on
terms (including the portion of the period of the Indemnitee’s Corporate Status
covered) no less favorable to the Indemnitee than the amounts and terms of the
liability insurance maintained by the Company on the date hereof.
(b)
Notice to Insurers. Upon receipt of notice of a Proceeding
pursuant to Section 15, the Company shall give or cause to be given prompt
notice of such Proceeding to all insurers providing liability insurance in
accordance with the procedures set forth in all applicable or potentially
applicable policies. The Company shall thereafter take all necessary action to
cause such insurers to pay all amounts payable in accordance with the terms of
such policies.
19. Headings; References;
Pronouns. The headings of
the sections of this Agreement are inserted for convenience only and shall not
be deemed to constitute part of this Agreement or to affect the construction
thereof. References herein to section numbers are to sections of this Agreement.
All pronouns and any variations thereof shall be deemed to refer to the singular
or plural as appropriate.
20. Other Provisions.
(a)
The Company shall not seek or
agree to any order of any court or other governmental authority that would
prohibit or otherwise interfere, and shall not take or fail to take any other
action if such action or failure would reasonably be expected to have the effect
of prohibiting or otherwise interfering, with the performance of the Company’s
indemnification, advancement or other obligations under this Agreement.
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(b) All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) on the date of
delivery if delivered personally, or by facsimile, upon confirmation of receipt,
(ii) on the first business day following the date of dispatch if delivered by a
recognized next-day courier service or (iii) on the third business day following
the date of mailing if delivered by domestic registered or certified mail,
properly addressed, or on the fifth business day following the date of mailing
if sent by airmail from a country outside of North America, to the Indemnitee at
the address shown on the signature page of this Agreement, to the Company at the
address shown on the signature page of this Agreement, or in either case as
subsequently modified by written notice.
(c) This Agreement and all disputes or controversies arising out of or
related to this Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of Delaware, without regard to the laws of
any other jurisdiction that might be applied because of conflicts of laws
principles of the State of Delaware. The Company and the Indemnitee each hereby
irrevocably consents to the jurisdiction of the state courts of the State of
Delaware for all purposes in connection with any Proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be brought only in the state courts of the State of Delaware.
(d) This Agreement may be executed in two or more counterparts, all of which
shall be considered one and the same instrument and shall become effective when
one or more counterparts have been signed by each of the parties and delivered
to the other party.
(e) This Agreement shall not be deemed an employment contract between the
Company and any Indemnitee who is an officer of the Company, and, if the
Indemnitee is an officer of the Company, the Indemnitee specifically
acknowledges that the Indemnitee may be discharged at any time for any reason,
with or without cause, and with or without severance compensation, except as may
be otherwise provided in a separate written contract between the Indemnitee and
the Company or by Company policy.
(f) In the event of payment under this Agreement, the Company shall be
subrogated to the extent of such payment to all of the rights of recovery of the
Indemnitee, who shall execute all papers required and shall do everything that
may be necessary to secure such rights, including the execution of such
documents necessary to enable the Company effectively to bring suit to enforce
such rights.
(g) This Agreement may not be amended, modified, or supplemented in any
manner, whether by course of conduct or otherwise, except by an instrument in
writing specifically designated as an amendment hereto, signed on behalf of each
party. No failure or delay of either party in exercising any right or remedy
hereunder shall operate as a waiver thereof, and no single or partial exercise
of any such right or power, or any abandonment or discontinuance of steps to
enforce such right or power, or any course of conduct, preclude any other or
further exercise thereof or the exercise of any other right or power.
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page is intentionally left blank.]
10
IN WITNESS WHEREOF, the Company and the Indemnitee have caused this
Agreement to be executed as of the date first written above.
| THE CLOROX COMPANY | |
| By: | |
| Name: | |
| Title: | |
| Address: | |
| INDEMNITEE |
| Address: | |
