EXHIBIT 6
FORM OF INDEMNITY AGREEMENT
This Indemnity Agreement (this "Agreement"), dated as of [ , 19 ],
is among McKesson Corporation, a Maryland corporation ("McKesson"), Armor All
Products Corporation, a Delaware corporation (the "Company"), and [ ]
(the "Director").
INTRODUCTION
A. The Director is contemplating becoming a member of the Board of Directors
of the Company.
X. XxXxxxxx owns a majority of the common stock of the Company.
C. As an inducement to the Director to serve as a director of the Company,
McKesson agrees to indemnify the Director upon the terms and conditions
hereinafter set forth.
Accordingly, the parties hereto agree as follows:
1. AGREEMENT TO INDEMNIFY. McKesson agrees to indemnify and hold harmless
the Director from all claims, liabilities, losses, damages, costs and expenses
(including, without limitation, court costs and attorneys' fees) which may be
asserted against him, or which he may sustain or incur, as a result of his
service as a Director of the Company (including service on any committee of the
Board of Directors of the Company), or as a result of any action or omission
which he is alleged to have taken or omitted to take as a director of the
Company, during any period of time prior to termination of this Agreement
pursuant to paragraph 10 hereof, irrespective of the time when any such claim
may be asserted; provided, however, that the indemnification herein provided
shall not extend to any act or omission with respect to which it shall be
finally adjudged that the liability of the Director arose out of conduct or an
omission that: (a) involved a knowing and culpable violation of law, (b) enabled
the Director to derive an improper benefit from the Company, (c) showed a
conscious disregard for the Director's duties to the Company that was reckless
under the circumstances, or (d) constituted a sustained and unexcused pattern of
inattention that amounted to an abdication of the Director's duty to the
Company. The Director shall not submit any claim to McKesson under this
Agreement until the Director has made a claim for indemnification to the
Company, and under any applicable insurance policy, and has failed to receive
full payment of such claim within sixty (60) days after such submission.
2. DUTY TO DEFEND; ADVANCE OF EXPENSES. In case any proceeding (including
any government investigation) shall be instituted or claim asserted involving
the Director, the Director shall promptly notify McKesson and the Company in
writing. Unless the Director is otherwise being represented by counsel
reasonably satisfactory to the Director, McKesson and the Company, and who is
retained and paid by McKesson, the Company or an insurance carrier, McKesson and
the Company shall retain counsel reasonably satisfactory to the Director to
represent the Director and any other person McKesson and Company may designate
in such proceeding (except where such representation would be inappropriate due
to actual or potential differing interests), and McKesson or the Company shall
pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, the Director shall have the right to retain
his own counsel, but the fees and expenses of such counsel shall be at the
expense of the Director unless (i) McKesson, the Company and the Director shall
have mutually agreed to the retention of such counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include McKesson, the
Company and the Director and representation of all of the parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that McKesson and the Company shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
(in addition to any local counsel) for the Director (except where such
representation is inappropriate due to differing interests), and that all such
fees and expenses shall be reimbursed as they are incurred. Neither McKesson nor
the Company shall be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, McKesson
agrees to indemnify the Director from and against any loss or liability by
reason of such settlement or judgment. In the event that it shall ultimately be
determined in a final judgment that the Director was not entitled to be
indemnified hereunder as a result of conduct or an omission referred to in any
of the clauses (a) through (d) of Paragraph 1 above, the Director agrees to
reimburse McKesson and the Company for the amount of any fees or disbursements
paid by them on behalf of such Director in such proceeding.
3. DIRECTOR'S OBLIGATION TO SERVE; EFFECT OF DIRECTOR'S RESIGNATION. By
executing a counterpart of this Agreement, the Director signifies his present
intention to serve as a director of the Company. However, nothing herein
contained shall obligate the Director to continue to so serve as a director, and
the resignation of the Director shall not operate to deprive the Director of the
benefits of this Agreement.
4. GOVERNING LAW. The validity, interpretation, enforceability and
performance of this Agreement shall be governed by and construed in accordance
with the law of the State of Delaware, without reference to its rules on
conflict of laws.
5. CONSENT TO JURISDICTION. It is agreed that in the event of the failure
of McKesson to pay any amount claimed to be due hereunder, McKesson, at the
request of the Director, will submit to the jurisdiction of any court of
competent jurisdiction within the State of California or Delaware, and will
comply with all requirements necessary to give such court jurisdiction, and all
matters arising hereunder shall be determined in accordance with the law and
practice of such court.
It is further agreed that service of process in such suit may be made upon
McKesson Corporation, Xxx Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attn:
Vice President and General Counsel, and that in any suit instituted against
McKesson under this Agreement, McKesson will abide by the final decision of such
court or of any appellate court in the event of an appeal.
6. INDIVIDUAL STATUS OF DIRECTORS. Nothing herein contained shall be
deemed to make the Director responsible for any act or omission of any other
Director, nor to create rights or obligations among the directors, as such.
7. AGREEMENT NOT EXCLUSIVE. The right to indemnification provided to the
Director under this Agreement shall be independent of, and neither subject to
nor in derogation of, any other rights to indemnification or exculpation to
which the Director may be entitled, including, without limitation, any such
rights which may be assertable under the General Corporation Law of the State of
Delaware or any other law, the Certificate of Incorporation or By-Laws of
McKesson or the Company, or any policy of insurance. In the event that McKesson
or the Company makes payment to or defends the Director under this Agreement,
the Director agrees to pursue in his own name and at McKesson's or the Company's
request and expense any rights to indemnification or insurance which he may
possess and to turn over to McKesson or the Company any proceeds recovered to
the extent the Director, or counsel retained on the Director's behalf, has
otherwise received reimbursement, or payment under this Agreement.
8. NOTICES. All notices and other communications hereunder will be in
writing and effective when mailed by certified or registered mail, delivered
personally or sent by telex, facsimile transmission or telegraph to McKesson or
the Company, Xxx Xxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000, Attn: Vice President and
General Counsel, and to the Director at the address indicated below his
signature to this Agreement, or such other address as any party hereto may from
time to time so communicate.
9. SEVERABILITY. If any provision of this Agreement, or the application
thereof to any person, place or circumstance, shall be held by a court of
competent jurisdiction to be invalid, unenforceable or void, the remainder of
this Agreement and such provisions as applied to other persons, places and
circumstances shall remain in full force and effect.
10. TERMINATION. McKesson may terminate this Agreement on thirty (30)
days' prior written notice given in the manner provided in Paragraph 8. No such
termination or cessation of being a party shall operate to deprive the Director
of the benefit of this Agreement with respect to any conduct or omission of
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the Director that is alleged to have occurred prior to the effective date of
such termination on cessation of being a party and for which indemnification is
provided by this Agreement.
11. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. AMENDMENT. No amendment of this Agreement shall be effective with
respect to any party hereto unless such party shall have consented in writing to
such amendment. By an instrument in writing, any party may waive compliance by
another party with any provision of this Agreement with which such other party
was or is obligated to comply, provided that such waiver shall not operate as a
waiver of, or estoppel with respect to, any party other than the party waiving
such compliance in writing or any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy or power hereunder shall
operate as a waiver thereof.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the
date hereinabove set forth.
MCKESSON CORPORATION
By /s/ NAME
-----------------------------------------
[ ]
Its President & Chief Operating Officer
ARMOR ALL PRODUCTS CORPORATION
By /s/ NAME /s/ NAME
----------------------------------- -----------------------------------
[ ] Name: [ ]
Its Vice President & Secretary
Address: c/o McKesson Corporation
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
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