EXHIBIT 4.1
FIRST AMENDMENT TO RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO RIGHTS AGREEMENT, dated as of December 14,
2003 (this "Amendment"), is entered into by and between The Dial Corporation, a
Delaware corporation (the "Company"), and Xxxxx Fargo Bank Arizona, N.A., as
Rights Agent ("Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to that
certain Rights Agreement, dated as of August 15, 1996 (the "Rights Agreement");
and
WHEREAS, the Board of Directors of the Company has determined that
it is advisable and in the best interests of the Company and its stockholders to
amend the Rights Agreement pursuant to Section 27 thereof, in connection with
the execution and delivery of the Agreement and Plan of Merger among Xxxxxx
KGaA, a Kommanditgesellschaft auf Aktien organized under the laws of the Federal
Republic of Germany ("Henkel"), Henkel Merger Corporation ("Merger Sub"), a
Delaware corporation and an indirect, wholly-owned subsidiary of Henkel and the
Company, pursuant to which, among other things, Merger Sub will be merged with
and into the Company, with the Company continuing as the surviving corporation
and an indirect, wholly-owned subsidiary of Henkel; and
WHEREAS, this Amendment has been approved by the Board of Directors
of the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth herein, the parties hereto agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended to read in
its entirety as follows:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person,
shall be the Beneficial Owner (as such term is hereinafter defined),
of 20% or more of the Common Shares of the Company then outstanding,
but shall not include the Company, any Subsidiary (as such term is
hereinafter defined) of the Company, any employee benefit plan of
the Company or any Subsidiary of the
Company, or any entity holding Common Shares for or pursuant to the
terms of any such plan. Notwithstanding the foregoing, no Person
shall become an "Acquiring Person" as the result of an acquisition
of Common Shares by the Company which, by reducing the number of
shares outstanding, increases the proportionate number of shares
beneficially owned by such Person to 20% or more of the Common
Shares of the Company then outstanding; provided, however, that if a
Person shall become the Beneficial Owner of 20% or more of the
Common Shares of the Company then outstanding by reason of share
purchases by the Company and shall, after such share purchases by
the Company, become the Beneficial Owner of any additional Common
Shares of the Company, then such Person shall be deemed to be an
"Acquiring Person". Notwithstanding the foregoing, if the Board of
Directors of the Company determines in good faith that a Person who
would otherwise be an "Acquiring Person", as defined pursuant to the
foregoing provisions of this paragraph (a), has become such
inadvertently, and such Person divests as promptly as practicable a
sufficient number of Common Shares so that such Person would no
longer be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph (a), then such Person shall
not be deemed to be an "Acquiring Person" for any purpose of this
Agreement. Notwithstanding the foregoing, Xxxxxx KGaA, a
Kommanditgesellschaft auf Aktien organized under the laws of the
Federal Republic of Germany ("Henkel") and Merger Sub (as defined in
the Merger Agreement), or any Affiliate or Associate of Henkel or
Merger Sub (collectively with Henkel, the "Henkel Parties") who
becomes the Beneficial Owners of Common Shares solely as a result of
(1) the announcement, approval, execution or delivery of the
Agreement and Plan of Merger, among the Company, Henkel and Merger
Sub (as may be amended from time to time, the "Merger Agreement")
and (2) the consummation of the Merger (as such term is defined in
the Merger Agreement) shall not be deemed an "Acquiring Person."
2. Section 7(a) of the Rights Agreement is hereby amended to read in
its entirety as follows:
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(a) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise provided
herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election
to purchase on the reverse side thereof duly executed, to the Rights
Agent at the principal office of the Rights Agent, together with
payment of the Purchase Price for each one one-hundredth of a
Preferred Share as to which the Rights are exercised, at or prior to
the earliest of (i) earlier of (x) the close of business on August
15, 2006 or (y) immediately prior to the Effective Time (as such
term is defined in the Merger Agreement) (the "Final Expiration
Date"), (ii) the time at which the Rights are redeemed as provided
in Section 23 hereof (the "Redemption Date") or (iii) the time at
which such Rights are exchange as provided in Section 24 hereof.
3. Section 25(a)(iv) is hereby amended to read in its entirety as
follows:
(iv) to effect any consolidation or merger (other than the
Merger) into or with, or to effect any sale or other transfer (or to
permit one or more of its Subsidiaries to effect any sale or other
transfer), in one or more transactions, of 50% or more of the assets
or earning power of the Company and its Subsidiaries (taken as a
whole) to, any other Person,
4. Except as expressly set forth herein, this Amendment shall not by
implication or otherwise alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Rights
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. All references in the Rights Agreement (and
in any other agreements, documents and instruments entered into in connection
therewith) to the "Rights Agreement" shall be deemed for all purposes to refer
to the Rights Agreement, as amended by this Amendment.
5. Capitalized terms used but not defined herein shall have the
respective meanings ascribed to such terms in the Rights Agreement.
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6. This Amendment shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts made
and to be performed entirely within such State.
7. This Amendment may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
8. If any term, provision, covenant or restriction of this Amendment
is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Amendment and of the Rights Agreement, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and attested, all as of the date and year first above written.
THE DIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chairman of the Board, President
and Chief Executive Officer
XXXXX FARGO BANK ARIZONA, N.A.
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
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