EXHIBIT 10.1
THE DIAL CORPORATION
00000 Xxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
December 14, 2003
[Executive]
[Address]
[Address]
Dear [Executive]:
This letter agreement (the "AGREEMENT") sets forth the agreements
among you (sometimes referred to as the "Executive"), Xxxxxx KGaA ("HENKEL") and
The Dial Corporation (the "COMPANY") in connection with the termination of your
Change of Control Agreement with the Company, dated as of [insert date] (the
"CIC AGREEMENT"), and the cancellation of the Covered Options (as defined
below), on and subject to the terms and conditions of this Agreement. This
Agreement is subject to, and will become effective at the effective time (the
"EFFECTIVE TIME") of, the merger of Henkel Merger Corporation with and into the
Company (the "MERGER") contemplated by the Agreement and Plan of Merger, dated
as of the date hereof, among Henkel, Henkel Merger Corporation and the Company
(the "MERGER AGREEMENT"). In the event that (i) prior to the Merger, the Merger
Agreement is terminated in accordance with its terms or (ii) the Company engages
in a transaction, other than the Merger, which constitutes a Change of Control
(as defined in the CIC Agreement), the terms of this Agreement shall be null,
void and of no effect ab initio.
Unless specified otherwise, capitalized terms used herein without
definition shall have the meanings assigned thereto in the Merger Agreement.
1. Termination of CIC Agreement. Effective at the Effective Time,
the CIC Agreement will terminate in its entirety, without any further action
required on the part of any Person and without any further liability or
obligation on the part of Henkel, the Company or you thereunder, except for the
Surviving Provisions (as defined below) which are incorporated herein by
reference and will continue in full force and effect, provided that the
capitalized term Agreement, as used in the Surviving Provisions, will be deemed
to refer to this Agreement. The term "SURVIVING PROVISIONS" means the provisions
of Sections 9 (Certain Additional Payments by the Company), 10 (Confidential
Information), 11 (Successors) and 12(b), (c) and (d) (Miscellaneous).
2. Initial Payment. In consideration for your entering into this
Agreement and subject to (a) consummation of the Merger as contemplated by the
Merger Agreement, (b) your continued employment with the Company from the date
hereof through the Effective Time and (c) your refraining from terminating, or
claiming a right to terminate, your employment for Good Reason (as defined in
the CIC Agreement) prior to, or based on any event occurring or existing prior
to, the Effective Time, the Company hereby agrees to pay to you, in a lump sum
in cash upon the Closing Date, an amount equal to (A) the product of (i) three
multiplied by (ii) the sum of (x) your annual base salary, at the rate in effect
on the date hereof, and (y) the highest annual
bonus paid to you under the Company's annual incentive plan in which your were a
participant for any of the last three fiscal years of the Company ending prior
to the Effective Time (such product referred to herein as the "CIC PAYMENT")
multiplied by (B) 80%.
3. Special Bonus. (a) In consideration for your continuing
employment from and after the Effective Time and provided you remain
continuously actively employed by the Company or an Affiliate thereof (including
Henkel and its subsidiaries from and after the Effective Time) from the date
hereof to the second anniversary of the date on which the Effective Time occurs,
the Company hereby agrees to pay to you, in a lump sum in cash within 5 days
following such second anniversary date, an amount equal to 20% of the CIC
Payment, increased by interest on such amount, at an annual rate of 10%, for the
period commencing at the Effective Time and ending on such second anniversary
date.
(b) In consideration for your continued employment after the
Effective Time and provided you remain continuously actively employed by the
Company or an Affiliate thereof from the date hereof to the date on which the
Effective Time occurs, if your employment with the Company and its Affiliates
(including Henkel and its subsidiaries from and after the Effective Time)
terminates after the Effective Time for any reason, including death, Disability,
your resignation, with or without Good Reason, or termination by the Company for
or without Cause, the Company hereby agrees to pay to you, in a lump sum in cash
within 5 days following the effective date of your termination of employment, an
amount equal to 20% of the CIC Payment, increased by interest on such amount, at
an annual rate of (i) 3%, if such termination arises from death, Disability,
your resignation, other than for Good Reason, or termination by the Company for
Cause or (ii) 10% if such termination is by the Company, other than for Cause or
Disability, or by your resignation for Good Reason, in either such case, for the
period commencing at the Effective Time and ending on such date of termination.
For all purposes of this Agreement, the terms "Disability", "Cause" and "Good
Reason" shall have the meanings assigned thereto in the Employment Agreement,
dated as of the date hereof, between you and the Company.
4. Cancellation of Options. In consideration for your entering into
this Agreement and subject to consummation of the Merger in accordance with the
Merger Agreement, you hereby agree to surrender for cancellation as of the
Effective Time all of your rights to and interest in respect of all of your
Existing Stock Options (the "COVERED OPTIONS"), and this Agreement constitutes
notice to the Company of your election to surrender all of the Covered Options
for cancellation, in exchange for payment of the Option Consideration, if any,
in accordance with the Merger Agreement for each such Covered Option. You hereby
acknowledge and agree that all of your Covered Options will be cancelled as of
the Effective Time pursuant to your election hereunder, including, without
limitation, those Covered Options under which the exercise price exceeds the
Merger Consideration (the "UNDERWATER OPTIONS") and that you will not be
entitled to any payment or other consideration in respect of such Underwater
Options.
5. Termination of this Agreement. Immediately upon payment of the
Special Bonus pursuant to paragraph 3 hereof, this Agreement shall terminate in
its entirety and be of no further force or effect, except with respect to the
Surviving Provisions.
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6. Miscellaneous. Notwithstanding any other provision of this
Agreement, upon any termination of your employment before the Effective Time due
to your death or Disability (as defined in the CIC Agreement), this Agreement
will automatically terminate and be deemed null, void and of no effect ab
initio. This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes any prior agreements or
understandings between or among the parties hereto with respect to such subject
matter, including, without limitation, from and after the Effective Time, the
CIC Agreement, except with respect to the Surviving Provisions; provided that
this Agreement shall not supercede the terms of any Indemnification Agreement as
in effect on the date hereof between the Company and the Executive and the
Executive's right to receive any vested accrued benefits under any plan, policy,
practice or program of the Company in which the Executive is a participant,
which benefits shall be payable in accordance with the terms of such applicable
plan, policy, practice or program. This Agreement may not be amended or modified
otherwise then by a written agreement executed by the parties hereto and their
respective successors and legal representatives.
7. Governing Law. The terms of this Agreement shall be governed by
the laws of the State of Arizona.
* * *
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To evidence and confirm your agreement to all of the terms and
conditions set forth in this Agreement and your election to surrender for
cancellation all of the Covered Options and receive the Option Consideration, if
any, in accordance with the Merger Agreement, please execute and date the
enclosed copy of this Agreement in the space provided below.
XXXXXX KGaA
By:
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Name:
Title
THE DIAL CORPORATION
By:
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Name:
Title
ACCEPTED AND AGREED, as of December 14, 2003:
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Name:
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