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Exhibit 10
Memorandum of Understanding Regarding Joint Petrolite/
▇▇▇▇▇▇▇▇▇ Efforts to Explore Sale of Petrolite
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Memorandum of Understanding, dated as of November 27, 1996,
between Petrolite Corporation, a Delaware corporation (the "Company"),
and Wm. ▇. ▇▇▇▇▇▇▇▇▇ & Company, a Missouri corporation ("WSB").
1. Sale Exploration Committee.
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(a) The Special Committee of the Board of Directors of the
Company established June 13, 1996, shall be in charge of the exploration
of the sale of the Company (the "Committee"). The Committee shall
consist of the directors listed on Exhibit A hereto.
(b) ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall be
entitled to participate in the Committee with all of the rights of the
members of the Committee, including the right to notice, attendance and
participation at all meetings of the Committee, except that they will
not have the right to vote. If either of such persons shall become
unable or unwilling to serve, WSB shall be entitled to designate ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ as a replacement and then, if necessary, such other
replacements as may be required. The members of the Committee who are
directors of the Company may meet privately with the Committee's legal
counsel to receive and consider legal advice with respect to their
fiduciary duties, provided that prior notice of any meetings of the
Committee shall be given to Messrs. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ or their
replacements.
(c) The purpose of the Committee will be, subject to the
fiduciary duties of the directors, to pursue a process for the sale or
merger of the Company on the most advantageous terms for all
shareholders. The Committee will take into account, among any other
shareholders' concerns, the fact that WSB has a strong preference for a
transaction structured as a tax-free reorganization involving WSB
directly.
(d) ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.,
Incorporated each will fully participate in the Committee's exploration
of the sale process, advising and assisting the Committee. ▇▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will execute a singular process to explore a
sale of the Company. The Committee, with the advice and assistance of
such financial advisors, ▇. ▇. ▇▇▇▇▇▇▇ and the Committee's legal
counsel, will consider a variety of business combination structures in
seeking to find a transaction on the most advantageous terms for all
Company shareholders. ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will provide
full and ongoing disclosure of the status of the process, including the
material content of any discussions with prospective acquirors, to the
Committee and each other. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇.▇.
▇▇▇▇▇▇▇ will each continue to perform their roles of advisors to the
Company, WSB and the Special Committee, respectively. Except as may
subsequently be agreed, WSB shall be solely responsible for the payment
of any fees and expenses, and indemnification, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
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(e) All material elements of the sale/merger process, all
material actions taken to implement the process and all agreements,
arrangements or understandings with any companies participating in the
process will be reviewed with the Committee in advance. If any
agreements which have been entered into between the Company and any
prospective acquirors participating in the process to date contain any
provisions that prevent or limit such prospective acquiror or its
representatives from communicating with WSB or its representatives, such
provisions are hereby waived by the Company.
2. Standstill. WSB will standstill (that is, take no
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implementing action) with respect to any consent solicitation for 90
days so that the Company's Board can pursue the Committee's purpose.
The litigation pending in the Delaware Court of Chancery styled "Wm. ▇.
▇▇▇▇▇▇▇▇▇ & Co. v. Petrolite Corporation, et. al." shall be dismissed
without prejudice.
3. Amendment of Rights Agreement. Etc.
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(a) Effective upon the execution hereof, the Company has
amended the Rights Agreement, dated as of March 28, 1994, as amended as
of December 1, 1994 and February 7, 1995, between the Company and
Society National Bank (the "Rights Agreement") to provide that: (i) any
previous requirement for "Continuing Director" action under the Rights
Agreement has been eliminated; and (ii) no person shall be deemed to be
the "beneficial owner," within the meaning of the Rights Agreement, of
shares of Company stock owned by any other person solely by reason of
the solicitation and delivery of revocable consents to the removal of
certain of the Company's directors and the election of new directors
pursuant to a public consent solicitation. A copy of the amendment to
the Rights Agreement is attached hereto as Exhibit B. Except as set
forth above, the Company has not amended the Rights Agreement or
resolved to do so.
(b) The Company acknowledges and agrees that the provisions
of Article II Section 12 of the Company's Bylaws shall not be construed
to limit actions by written consent.
(c) No other Rights Agreement provisions, Bylaws or other
structural arrangements will be adopted or implemented which will
constitute obstacles in the path of the shareholder consent process.
4. No Inconsistent Actions. During the next 90 days,
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except in connection with a merger or other business combination
transaction involving all of the Company's outstanding shares that is
recommended by the Committee and approved by the Company's board of
directors, the Company will not knowingly take any actions which would
interfere with or impair the sale/merger process, including any action
which presents any reasonable risk that it would prevent (i) a sale or
merger of the Company in a three party transaction involving the
Company, WSB and a third party acquiror, (ii) a transaction from being
accounted for as a "pooling of interests" or being treated as a tax-free
reorganization under applicable tax law, or (iii) a transaction from
receiving any
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requisite regulatory approval or clearance, including under applicable
antitrust law; provided, however, that no actions may be knowingly taken in
connection with such a merger or business combination transaction if such
actions would have the effect of preventing any of the matters referred to in
(i), (ii) or (iii) above, or otherwise would have a material adverse effect on
the financial condition of the Company and its subsidiaries taken as a whole,
if such merger or other business combination transaction is not consummated.
5. Good Faith. The parties will proceed in good faith
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to implement the terms of this Memorandum of Understanding. This
Memorandum of Understanding shall be governed in all respects by the
laws of the State of Delaware and the parties consent to submit
themselves to the personal jurisdiction of any Federal or state court
located in Delaware in the event of any dispute arising out of this
Memorandum of Understanding. The parties agree that irreparable damage
would occur in the event that any of the terms or provisions of this
Memorandum of Understanding were not performed in accordance with their
specific terms or were otherwise breached; it is accordingly agreed that
the parties shall be entitled to injunctive relief to prevent breaches
of the terms contained herein and to enforce specifically the terms and
provisions of this Memorandum of Understanding, this being in addition
to any other remedy to which they are entitled at law or in equity.
IN WITNESS WHEREOF, the parties hereto have executed this
Memorandum of Understanding as of the date first above written.
WM. ▇. ▇▇▇▇▇▇▇▇▇ & COMPANY PETROLITE CORPORATION
/s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President Title: Chairman, President
& Chief Executive Officer
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Exhibit A
SPECIAL COMMITTEE OF PETROLITE BOARD OF DIRECTORS
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ & COMPANY REPRESENTATIVES
(Non-Voting)
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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EXHIBIT B
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AMENDMENT NO. 3 TO
RIGHTS AGREEMENT
Amendment No. 3 (this "Amendment"), dated as of November
27, 1996, to the Rights Agreement (the "Rights
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Agreement"), dated as of March 28, 1994, between Petrolite
Corporation, a Delaware Corporation (the "Company"), and
Society National Bank (the "Rights Agent"), as amended by
Amendment No. 1, dated as of December 1, 1994, and Amendment
No. 2, dated as of February 7, 1995.
WHEREAS, pursuant to Section 27 of the Rights Agreement,
the Company and the Rights Agent may from time to time
supplement or amend the Rights Agreement in accordance with
Section 27 thereof;
WHEREAS, all acts and things necessary to make this
Amendment valid and enforceable have been performed and done,
including as required by Section 27, the delivery to the
Rights Agent of a certificate from an appropriate officer of
the Company stating that this Amendment is in compliance with
the terms of Section 27;
NOW, THEREFORE, in consideration of the premises and
mutual agreements herein set forth, the parties agree that the
Rights Agreement is hereby amended as follows:
1. Section 1(g) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"Continuing Director" shall mean any person who is
presently or subsequently becomes a member of the Board
of Directors of the Company, while such person is a
member of the Board of Directors of the Company.
2. Section 1 of the Rights Agreement is hereby amended
by adding the following new paragraph at the end of Section 1
immediately following the paragraph added by Amendment No. 2
to the Rights Agreement dated as of February 7, 1995:
Notwithstanding anything in this Agreement that might
otherwise be deemed to the contrary, no Stock Acquisition
Date, Distribution Date, Section 11(a)(ii) Event or
Section 13 Event shall occur, no person shall be deemed
an "Acquiring Person," and no person shall be deemed the
"Beneficial Owner" of, or to "beneficially own" any
security under Section 1(c)(ii), solely by reason of the
solicitation and delivery of revocable consents to the
removal of certain of the Company's directors and the
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election of new directors pursuant to a public consent
solicitation.
3. The Rights Agreement shall not otherwise be
supplemented or amended by virtue of this Amendment, but shall
remain in full force and effect. This Amendment may be
executed in one or more counterparts, all of which shall be
considered one and the same amendment and each of which shall
be deemed in an original.
IN WITNESS WHEREOF, the undersigned have caused this
Amendment to be duly executed, all on the date first written
above.
Attest: PETROLITE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Attest: SOCIETY NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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