EXHIBIT 10.1
MEMORANDUM OF UNDERSTANDING
The undersigned parties to this consolidated action now pending in the
Superior Court of Arizona, County of Maricopa and to a parallel Delaware action
pending in Delaware Chancery Court (collectively, the "Actions"), have reached
an agreement, subject to Court approval, providing for the settlement of the
Actions on the terms and subject to the conditions set forth below.
WHEREAS, on December 14, 2003, The Dial Corporation ("Dial" or the
"Company") agreed to be acquired by Henkel KGaA ("Henkel") for $28.75 per share
(the "Acquisition");
WHEREAS, on December 16, 2003, ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Corporation, et al.,
Case No. CV2003-023973 (the "▇▇▇▇▇▇▇▇▇▇ Action") and ▇▇▇▇ ▇. ▇▇▇▇ Corporation,
et al., Case No. CV2003-23974 (the "Rose Action") were filed as putative class
actions on behalf of holders of Dial common stock naming as defendants the
Company and its Board of Directors including ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(collectively, "Defendants");
WHEREAS, on December 17, 2003, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Corporation, et al.,
Case No. CV2003-024012 (the "Crescente Action") was filed as a putative class
action on behalf of holders of Dial common stock;
WHEREAS, the ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ actions, to none of which
is Henkel a party, were consolidated for all purposes by order of the Court
dated January 26, 2004 under the caption In re Dial Corporation Shareholder
Litigation, Case No. CV2003-023973 (the "Arizona Action");
WHEREAS, the following parallel actions, to both of which Henkel is a
party, were filed in the Delaware Court of Chancery: ▇▇▇▇▇▇ ▇. ▇▇▇▇, et al.,
Case No. 116-N filed on December 16, 2003, and ▇▇▇▇▇ ▇. ▇▇▇▇, et al., Case No.
154-N filed January 6, 2004 (collectively the "Delaware Actions");
WHEREAS, plaintiffs and their counsel have determined that the
settlement of the Actions on the terms reflected in this Memorandum of
Understanding ("MOU") is fair, reasonable and adequate and in the best interest
of ▇▇▇▇'s stockholders;
WHEREAS, Defendants deny the allegations and all other charges of
wrongdoing or liability arising out of any conduct, statements, acts or
omissions relating to the Acquisition that were or could be alleged in the
Actions, and specifically deny that the termination fee was excessive or that
any disclosures relating to the Acquisition were incomplete or misleading, or
that any additional disclosure is required under federal disclosure laws or any
applicable legal principle; and
WHEREAS, Defendants have agreed to the terms of the settlement as
detailed herein solely because the proposed settlement would eliminate the
burden and expense of further litigation.
NOW, THEREFORE, following discussions among counsel to the Actions, the
parties have reached an agreement, subject to Court approval, providing for the
settlement of the Actions between and among plaintiffs, for themselves and the
class of persons on behalf of whom the Actions were brought, and Defendants on
the terms and conditions set forth below (the "Settlement").
1. Upon execution of the MOU and in consideration thereof, the
Termination Fee in the Acquisition will be reduced from $110 million to $85
million.
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2. Plaintiffs have asserted the omission of certain material
information from the Preliminary Proxy Statement filed by Dial with the
Securities and Exchange Commission ("SEC") on December 24, 2003, relating to
Dial, its prospects, and the Acquisition. Dial has supplemented its preliminary
disclosures by filing with the SEC on February 18, 2004, a Definitive Proxy
Statement, (the "Final Proxy") which contains certain additional disclosures
recommended by plaintiffs. The supplemental disclosures agreed to as part of the
Settlement that are contained in the Final Proxy include, inter alia:
(a) the components of the accretion expense utilized for
Dial's LTM (last twelve months) EBITDA (earnings before interest, taxes,
depreciation and amortization) and EPS (earnings per share);
(b) whether Dial is considered a Mid-Cap Company or a
Large-Cap Company for purposes of Dial's financial advisor's Selected Companies
Analysis;
(c) additional information about the criteria utilized
for the selection of transactions in ▇▇▇▇'s financial advisor's Selected
Transactions Analysis and Transaction Premium Analysis;
(d) that no synergies from the Merger were included in
▇▇▇▇'s financial advisor's Pro Forma EPS Analysis and that ▇▇▇▇'s financial
advisor was not presented by Henkel with any estimates of potential synergies;
(e) a quantification of the dollar amount of the fees to
be paid to ▇▇▇▇'s financial advisor in connection with the transaction;
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(f) the names of the Dial executives who had entered into
amended Change-in-Control ("CIC") agreements prior to the public announcement of
the transaction, and other clarifications about those agreements; and
(g) the reason why one of ▇▇▇▇'s executives did not amend
his then-existing CIC agreement.
3. The parties to the Actions will promptly cooperate in good
faith to prepare and execute an appropriate Stipulation of Settlement (the
"Stipulation") and such other documentation as may be required to obtain final
Court approval of the Settlement and the dismissal of the Actions upon the terms
outlined in this MOU (collectively, the "Settlement Documents").
4. The Stipulation will expressly provide, inter alia, (i) for
the lifting of the stay previously entered by the Court in the Arizona Action
for the purpose of effecting the settlement and dismissal with prejudice of the
Arizona Action as hereinafter provided; (ii) for the certification in the
Arizona Action as a class for settlement purposes of all persons who owned Dial
stock as of December 12, 2003 or at any time from December 12, 2003 through and
including the sale of Dial as contemplated in the Acquisition, and their
successors in interest and transferees; (iii) for entry of a judgment of
dismissal with prejudice of the Arizona Action and the Delaware Action; and (iv)
for a release and settlement of all claims known or unknown, liquidated or
unliquidated, contingent or absolute, for damages, injunctive relief, or any
other remedies against Defendants or Henkel and their respective predecessors,
successors, parents, subsidiaries, affiliates, agents (including, without
limitation, any investment bankers, commercial bankers, advisors, accountants,
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insurers, reinsurers, attorneys, trustees, personal representatives, or
administrators, and any past, present or future officers, directors and
employees of ▇▇▇▇ and Henkel, their predecessors, successors, parents,
subsidiaries, affiliates, agents, and their subsidiaries, affiliates and agents)
which have been or could have been asserted by any member of the proposed Class,
including class, derivative, individual or other claims, in any court, tribunal
or other proceeding (including but not limited to any claims arising under
federal, state, foreign, or common law, including the federal securities laws
and any state disclosure law), based upon, arising from, or related to the
Acquisition, any of the other matters raised or that could have been raised in
the Actions, or any matter discussed in the Preliminary Proxy Statement or the
Final Proxy or any disclosure or purported omissions related thereto or the
actual or alleged acts or omissions of Defendants relating to the Acquisition,
including, without limitation, any allegations of misrepresentations and/or
omissions in the Final Proxy and exhibits thereto or any matter that could have
been asserted in the Actions regarding alleged breach of fiduciary duty or
alleged failure to disclose material facts or alleged misstatements of material
facts (the "Released Claims").
5. It is the intention of the parties to extinguish all such
settled claims and consistent with such settled claims and consistent with such
intentions, the releasing parties waive their rights to the extent permitted by
state law, federal law or principle of common law, which may have the effect of
limiting the release set forth above.
6. The Stipulation shall include a waiver of the provisions of
California Civil Code Section 1542 and any similar provision of the law of any
other jurisdiction. Plaintiffs and their counsel represent that they are not
aware of any alleged breaches of fiduciary duty,
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or alleged materially misleading statements or omissions, relating to, arising
from or concerning any other Dial filings or press releases beyond those alleged
in the Actions.
7. The Stipulation will further provide that Defendants have
denied and continue to deny that they have committed or attempted to commit any
violations of law or breached any duty owed to Dial or its stockholders or
otherwise, and that Defendants are entering into the Stipulation solely because
the proposed Settlement would eliminate the burden and expense of further
litigation.
8. The parties to the Arizona Action shall promptly present to
the Court in which the Arizona Action is pending a motion for preliminary
approval of the Settlement.
9. The parties agree that all of the Actions shall be stayed
pending final Court approval of the Settlement, and shall cooperate in opposing
any subsequently filed similar action. No defendant waives any defense based on
lack of personal jurisdiction, insufficiency of process or insufficiency of
service of process by reason of entry into this MOU or execution of the
Settlement Documents and presentation thereof to the Court. Specifically, and
without limitation, nothing herein shall be deemed to constitute a submission by
Henkel to the jurisdiction of the Court in which the Arizona Action is pending.
10. Any notice of the proposed Settlement that is necessary to
effect a final settlement for approval by the Court shall be provided at Dial's
expense. The parties shall set forth the manner in which the notice requirement
shall be satisfied in the Stipulation.
11. The final effectiveness of this Settlement is subject to: (a)
the submission by the parties as required hereunder of the Settlement Documents
sufficient to obtain
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final Court approval of the Settlement; (b) final Court approval of the
Settlement and dismissal of the Actions with prejudice and without awarding
costs to any party (except as provided in Paragraph 12 below); and (c)
consummation of the Acquisition. As employed in this MOU, "final Court approval
of the Settlement" means that the Court in which the Arizona action is pending
has entered an order approving the Stipulation, and any Court approval required
to allow the dismissal with prejudice of the Delaware actions has been obtained,
and in either case that such order is finally affirmed on appeal or is no longer
subject to appeal and the time for any petition for rearguments, appeal or
review, by certiorari or otherwise, has expired. This MOU (including the
recitals set forth above) shall be null and void and of no force and effect
should any of these conditions not be met and, in that event, this MOU shall
neither be deemed to prejudice in any way the positions of the parties with
respect to the Actions nor entitle any party to recover any costs or expenses
incurred in connection with the implementation of the MOU. In such event,
neither the existence of this MOU nor its contents shall be admissible in
evidence or shall be referred to for any purpose except as required by this MOU
or to comply with federal or state disclosure obligations.
12. After agreeing to take the actions set forth above, Defendants
and plaintiffs negotiated the attorneys' fees that would be paid to plaintiffs'
counsel. Subject to Court approval, as part of the entire Settlement, Henkel has
agreed, and ▇▇▇▇ will not oppose, that Dial (after consummation of the
Acquistion) shall pay the sum of $1.1 million to plaintiffs' counsel for their
fees and reimbursement of expenses and costs. Such fees and expenses, or such
lesser or greater amount as the Court awards on its own initiative, shall be
paid by Dial within seven (7) days of the entry of an order by the Superior
Court finally approving the Settlement on the terms
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approved by the Court, even if such order may be subject to appeal. In the
event that the Superior Court's order is reversed or modified on appeal,
plaintiffs' counsel shall refund to Dial the advanced amount and all
interest accrued or accumulated thereon consistent with such reversal or
modification. No such fees or expenses shall be payable in the absence of Court
approval of the Settlement or the absence of consummation of the Acquisition.
13. The Actions are being settled voluntarily by the parties after
consultation with competent legal counsel. The releases between the parties are
intended to include releases of all counsel in the Actions.
14. The parties have agreed to cooperate in such discovery, if
any, as is reasonably necessary to confirm the fairness and adequacy of the
Settlement contemplated herein, including the production of relevant documents
and an individual or individuals for interview. Production of documents will be
conducted pursuant to a Confidentiality Agreement, the terms of which shall be
agreed upon by the parties at a future date.
15. This MOU and the Stipulation to be prepared are not intended
to create any obligation for Dial or Henkel to consummate the proposed merger
and shall not modify in any way the rights or obligations under the merger
agreement, except as otherwise provided herein.
16. This MOU may be modified or amended only by a writing signed
by all of the signatories hereto.
17. The plaintiffs and their counsel represent and warrant that
none of plaintiffs' claims or causes of action referred to in this MOU or that
could have been
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alleged in the Actions have been assigned, encumbered or in any manner
transferred in whole or in part.
18. Except as otherwise provided herein, this MOU shall be binding
upon and shall inure to the benefit of the parties and their respective agents,
successors, executors, heirs and assigns.
19. By signing this MOU, plaintiffs' counsel represent and warrant
that the named plaintiffs are stockholders of Dial.
20. This MOU may be executed in counterparts by any of the
signatories hereto, including by telecopier, and as so executed shall constitute
one agreement.
21. Each of the attorneys executing this MOU on behalf of his/her
respective client(s) hereby represents and warrants that they have full
authority to do so.
22. The parties agree to take all reasonable and necessary steps
to expeditiously implement the terms of this MOU and to complete the Settlement.
23. This MOU shall be governed by Arizona law.
24. This MOU represents the full understanding of the parties as
of the date hereof with respect to the subject matter hereof.
DATED: March 15, 2004 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ for
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: 619/▇▇▇-▇▇▇▇
619/▇▇▇-▇▇▇▇ (fax)
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇, P.C.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: 602/▇▇▇-▇▇▇▇
602/▇▇▇-▇▇▇▇ (fax)
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: 619/▇▇▇-▇▇▇▇
619/▇▇▇-▇▇▇▇ (fax)
Attorneys for the Arizona Plaintiff
DATED: March 15, 2004 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
212/▇▇▇-▇▇▇▇ (fax)
DATED: March 15, 2004 ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ for
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: 631/▇▇▇-▇▇▇▇
631/▇▇▇-▇▇▇▇ (fax)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ MONHAIT GROSS &
GODDESS, P.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
P.O. Box 1070
Wilmington, DE 19899
Telephone: 302/▇▇▇-▇▇▇▇
302/▇▇▇-▇▇▇▇ (fax)
Attorneys for Delaware Plaintiffs
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DATED: March 15, 2004 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
212/▇▇▇-▇▇▇▇ (fax)
Attorneys for ▇▇▇▇▇▇ KGaA
DATED: March 15, 2004 SKADDEN, ARPS, SLATE, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 302/▇▇▇-▇▇▇▇
302/▇▇▇-▇▇▇▇ (fax)
DATED: March 15, 2004 /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ REFO
One Arizona Center
Phoenix, AZ 85004-2202
Telephone: 602/▇▇▇-▇▇▇▇
602/▇▇▇-▇▇▇▇ (fax)
Attorneys for Individual Defendants
and Dial Corporation
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