EXHIBIT 2.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment"),
dated as of March 15, 2004, by and among Xxxxxx KGaA, a Kommanditgesellschaft
auf Aktien (a partnership limited by shares) organized under the laws of the
Federal Republic of Germany ("PARENT"), Henkel Merger Corporation, a Delaware
corporation and wholly-owned subsidiary of Parent ("MERGER SUB"), and The Dial
Corporation, a Delaware corporation (the "COMPANY").
W I T N E S S E T H:
WHEREAS, Parent, Merger Sub and the Company have entered into
the Agreement and Plan of Merger, dated as of December 14, 2003 (the "MERGER
AGREEMENT");
WHEREAS, in connection with the settlement of all stockholder
litigation relating to the Merger Agreement and the transactions contemplated
thereby, Parent, Merger Sub and the Company desire to amend the Merger Agreement
to reduce the Termination Fee (as defined in the Merger Agreement) from
$110,000,000 to $85,000,000; and
WHEREAS, pursuant to Section 8.07 of the Merger Agreement, the
Merger Agreement may be amended by a writing signed on behalf of all of the
parties thereto.
NOW, THEREFORE, Parent, the Company and Merger Sub, for good
and valuable consideration, the receipt of which is hereby acknowledged, and
intending to be legally bound, hereby agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have
the same meanings ascribed to them in the Merger Agreement.
2. Amendment to Section 8.06(b) of the Merger Agreement. The reference to
the amount of "$110,000,000" in Section 8.06(b) of the Merger Agreement
as the amount of the Termination Fee is hereby deleted and replaced
with the amount of "$85,000,000".
3. Limited Effect. Except as specifically amended hereby, the terms and
provisions of the Merger Agreement shall continue and remain in full
force and effect in accordance with its terms. All references in the
Merger Agreement (and in any other agreement, document, instrument and
certificate entered into or delivered in
connection therewith) to the "Merger Agreement" or the "Agreement"
shall be deemed for all purposes to refer to the Merger Agreement, as
amended by this Amendment.
4. Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties.
5. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving
effect to the choice of law principles thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Parent, the Company and Merger Sub have caused this
Amendment to Agreement and Plan of Merger to be duly executed as of the day and
year first above written.
XXXXXX KGaA
By: /s/ Xxxxx-Xxxxx Xxxxx
____________________________________
Name: Xxxxx-Xxxxx Xxxxx
Title: General Counsel
By: /s/ Xxxxxx-Xxxx Xxxxx
____________________________________
Name: Xxxxxx-Xxxx Xxxxx
Title: Associate General Counsel
HENKEL MERGER CORPORATION
By: /s/ Xxxxxx Xxxx
____________________________________
Name: Xxxxxx Xxxx
Title: VP Corp. Dev.
By: /s/ Xxxxxxx X. Xxxx
____________________________________
Name: Xxxxxxx X. Xxxx
Title: V.P.
THE DIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
____________________________________
Name: Xxxxxxx X. Xxxx
Title: Chairman of the Board,
President and Chief Executive
Officer
