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Exhibit
10(d)
[INDEMNITEE’S
NAME]
APPENDIX D
INDEMNITY
AGREEMENT
THIS INDEMNITY AGREEMENT
(“AGREEMENT”), effective as of
, 1999, is entered into by and between
WD-40 COMPANY, a Delaware corporation (the
“CORPORATION”), and [INDEMNITEE’S NAME] (the
“INDEMNITEE”).
W I T N E S S E T
H:
WHEREAS, Indemnitee is a
member of the board of directors of the Corporation or a subsidiary
of the Corporation (the “BOARD OF DIRECTORS”) or is an
officer of the Corporation or a subsidiary of the Corporation, and
in such capacity is performing a valuable service for the
Corporation; and
WHEREAS, competent persons
have become reluctant to serve corporations as directors, officers
or in other capacities unless they are provided with protection
from the risk of personal claims and actions against them arising
out of their service to and activities on behalf of such
corporations; and
WHEREAS, the Corporation has
provided in the Certificate of Incorporation of the Corporation
(the “CERTIFICATE OF INCORPORATION”) that a
director’s liability to the Corporation’s stockholders
for monetary damages shall be eliminated to the fullest extent
permissible under Delaware law (with certain limited exceptions),
and further has provided in the Certificate of Incorporation that
the Corporation will indemnify its directors and officers to the
maximum extent permitted under applicable law; and
WHEREAS, Indemnitee is
willing to serve, continue to serve, and take on additional service
for or on behalf of the Corporation on the condition that he or she
be indemnified as herein provided; and
WHEREAS, it is intended that
Indemnitee shall be paid promptly by the Corporation all amounts
necessary to effectuate in full the indemnity provided
herein;
NOW, THEREFORE, in
consideration of the premises and the covenants in this Agreement,
and intending to be legally bound hereby, the parties hereto agree
as follows:
1. SERVICES BY INDEMNITEE.
Indemnitee agrees to serve as a director or officer of the
Corporation or any subsidiary of the Corporation so long as he or
she is duly appointed or elected and qualified in accordance with
the applicable provisions of Certificate of Incorporation and
Bylaws of the Corporation or any subsidiary of the Corporation and
until such time as he or she resigns or fails to stand for election
or is removed from his or her position. Indemnitee may at any time
and for any reason resign or be removed from such position (subject
to any other contractual obligation or other obligation imposed by
operation of law), without affecting the indemnification agreed to
hereunder, in which event the Corporation shall have no obligation
under this Agreement to continue Indemnitee in any such
position.
2. Proceedings Other than
Proceedings by or in the Right of the Corporation.
(a) The Corporation shall
indemnify Indemnitee against Expenses and Liabilities incurred in
connection with any Proceeding arising out of acts or omissions of
Indemnitee occurring during Indemnitee’s service as a
director or as an officer of the Corporation or any subsidiary of
the Corporation, other than a Proceeding by or in the right of the
Corporation against Indemnitee, to the fullest extent permitted by
applicable law or the Certificate of Incorporation (as such law or
the Certificate of Incorporation may be amended from time to time,
but only to the extent that any such amendment permits the
Corporation to provide broader indemnification rights than such law
or the Certificate of Incorporation permitted the Corporation to
provide before such amendment), so long as Indemnitee has acted in
good faith and in a manner Indemnitee reasonably believed to be in
or not opposed to the best interests of the Corporation and, with
respect to any criminal Proceeding, Indemnitee had no reasonable
cause to believe that Indemnitee’s conduct was
unlawful.
(b) Indemnitee shall be paid
promptly by the Corporation all amounts necessary to effectuate the
foregoing indemnity.
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3. INDEMNIFICATION FOR
PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION.
(a) The Corporation shall
indemnify Indemnitee against Expenses and Liabilities incurred in
connection with any Proceeding by or in the right of the
Corporation against Indemnitee and arising out of acts or omissions
of Indemnitee occurring during Indemnitee’s service as a
director or as an officer of the Corporation or any subsidiary of
the Corporation to the fullest extent permitted by applicable law
or the Certificate of Incorporation (as such law or the Certificate
of Incorporation may be amended from time to time, but only to the
extent that any such amendment permits the Corporation to provide
broader indemnification rights than such law or the Certificate of
Incorporation permitted the Corporation to provide before such
amendment), so long as Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Corporation AND except that no
indemnification shall be made in respect of any claim, issue or
matter as to which Indemnitee shall have been adjudged to be liable
to the Corporation unless and only to the extent that the Delaware
Court of Chancery or the court in which such Proceeding was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnification for
Expenses and Liabilities incurred in connection with any such
claim, issue or matter (as the Delaware Court of Chancery or such
other court shall deem proper).
(b) Indemnitee shall be paid
promptly by the Corporation all amounts necessary to effectuate the
foregoing indemnity.
4. INDEMNIFICATION UNDER
CERTIFICATE OF INCORPORATION. The right to indemnification provided
for in the Certificate of Incorporation (as the Certificate of
Incorporation may be amended from time to time, but only to the
extent that any such amendment permits the Corporation to provide
broader indemnification rights than the Certificate of
Incorporation permitted the Corporation to provide before such
amendment) shall be presumed to have been relied upon by Indemnitee
in serving or continuing to serve the Corporation and shall be
enforceable as a contract right.
5. INDEMNIFICATION FOR
EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL.
Notwithstanding any other provision of this Agreement, to the
extent that Indemnitee is a party to and is successful, on the
merits or otherwise, in any Proceeding arising out of acts or
omissions of Indemnitee occurring during Indemnitee’s service
as a director or officer of the Corporation or any subsidiary of
the Corporation, he or she shall be indemnified against Expenses
and Liabilities actually and reasonably incurred by him or her or
on his or her behalf in connection therewith. If Indemnitee is not
wholly successful in such Proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims,
issues or matters in such Proceeding, the Corporation shall
indemnify Indemnitee against all Expenses and Liabilities actually
and reasonably incurred by him or her or on his or her behalf in
connection with each successfully resolved claim, issue or matter.
For the purposes of this Section and without limiting the
foregoing, the termination of any claim, issue or matter in any
such Proceeding by dismissal, with or without prejudice, shall be
deemed to be a successful result as to such claim, issue or
matter.
6. ADVANCEMENT OF EXPENSES.
All reasonable Expenses incurred by or on behalf of Indemnitee
shall be advanced from time to time by the Corporation to
Indemnitee within thirty (30) days after the
Corporation’s receipt of a written request for an advance of
Expenses, whether prior to or after final disposition of a
Proceeding (except to the extent that there has been a Final
Adverse Determination that Indemnitee is not entitled to be
indemnified for such Expenses). The written request for an
advancement of any and all Expenses under this paragraph shall
contain reasonable detail of the Expenses incurred by Indemnitee.
Indemnitee hereby agrees to repay the amounts advanced if it is
ultimately determined that Indemnitee is not entitled to be
indemnified pursuant to the terms of this Agreement.
7. LIMITATIONS. The foregoing
indemnity and advancement of Expenses shall apply only to the
extent that Indemnitee has not been indemnified and reimbursed
pursuant to such insurance as the Corporation may maintain for
Indemnitee’s benefit, or otherwise; provided, however, that
notwithstanding the availability of such other indemnification and
reimbursement, Indemnitee may claim indemnification and advancement
of Expenses pursuant to this Agreement by assigning to the
Corporation, at its request, Indemnitee’s claims under such
insurance to the extent Indemnitee has been paid by the
Corporation.
8. INSURANCE AND FUNDING. The
Corporation may purchase and maintain insurance to protect itself
and/or Indemnitee against any Expenses and Liabilities in
connection with any Proceeding to the fullest extent
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permitted by applicable laws. The
Corporation may create a trust fund, grant an interest or use other
means (including, without limitation, a letter of credit) to ensure
the payment of such amounts as may be necessary to effect
indemnification or advancement of Expenses as provided in this
Agreement.
9. PROCEDURE FOR
DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) Whenever Indemnitee
believes that he or she is entitled to indemnification pursuant to
this Agreement, Indemnitee shall submit a written request for
indemnification to the Corporation. Any request for indemnification
shall include sufficient documentation or information reasonably
available to Indemnitee to support his or her claim for
indemnification. Indemnitee shall submit such claim for
indemnification within a reasonable time not to exceed five years
after any judgment, order, settlement, dismissal, arbitration
award, conviction, acceptance of a plea of nolo contendere or its
equivalent, final termination or other disposition or partial
disposition of any Proceeding, whichever is the later date for
which Indemnitee requests indemnification. The President or the
Secretary or other appropriate officer shall, promptly upon receipt
of Indemnitee’s request for indemnification, advise the Board
of Directors in writing that Indemnitee has made such request.
Determination of Indemnitee’s entitlement to indemnification
shall be made not later than ninety (90) days after the
Corporation’s receipt of his or her written request for such
indemnification.
(b) The Indemnitee shall be
entitled to select the forum in which Indemnitee’s request
for indemnification will be heard, which selection shall be
included in the written request for indemnification required in
Section 9(a). The forum shall be any one of the
following:
(i) The stockholders of the
Corporation;
(ii) A quorum of the Board of
Directors consisting of Disinterested Directors; or
(iii) Independent Legal
Counsel, who shall make the determination in a written
opinion.
If Indemnitee fails to make
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