Mail Stop 3561
October 25, 2005
Daniel F. Hopp, Esq.
Senior Vice President, Corporate Affairs
and General Counsel
Whirlpool Corporation
2000 North M-63
Benton Harbor, Michigan 49022-2692
RE: Whirlpool Corporation
Registration Statement on Form S-4
Filed September 29, 2005
File No. 333-128686
Dear Mr. Hopp:
We have limited our review of your Form S-4 for disclosures
related to the terms of the merger transaction and related matters
and have the following comments. Where indicated, we think you
should revise your document in response to these comments. If you
disagree, we will consider your explanation as to why our comment
is
inapplicable or a revision is unnecessary. Please be as detailed
as
necessary in your explanation. In some of our comments, we may
ask
you to provide us with information so we may better understand
your
disclosure. After reviewing this information, we may raise
additional comments.
Please understand that the purpose of our review process is
to
assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filing.
We look forward to working with you in these respects. We welcome
any questions you may have about our comments or any other aspect
of
our review. Feel free to call us at the telephone numbers listed
at
the end of this letter.
Cover Page/Letter to Stockholders
1. Please disclose the amount, or range, of Whirlpool shares that
Whirlpool currently expects to issue under the proposed merger, as
required by Item 501(b)(2) of Regulation S-K. In addition,
disclose
the minimum and maximum percentage of outstanding Whirlpool common
stock that the Maytag stockholders are expected to hold after the
merger is completed.
2. Since the initial merger consideration is subject to
adjustment,
and the merger will not be completed until some time after the
Maytag
stockholders` meeting, the number of shares of Whirlpool stock to
be
issued per share of Maytag stock will not be known at the time of
the
meeting. Accordingly, prominently disclose on the cover page that
Maytag stockholders will not know at the time of their vote the
number of shares that the Maytag stockholders will receive in the
merger and the value of the merger consideration Maytag
stockholders
will receive may be less than the current market value of
Whirlpool
common stock. Furthermore, if Whirlpool`s stock is trading at a
price lower then the low end of the collar at the time of mailing,
highlight this.
Forward-Looking Statements, page 1
3. Please move this section so that your questions and answers and
summary immediately follow the table of contents.
Questions and Answers, page 3
Summary, page 9
General
4. You currently repeat information in your questions and answers
and
summary. For purposes of eliminating redundancies and grouping
like
information together, please view your questions and answers and
summary as one section. In particular, we suggest that you revise
the sections so that you discuss only the procedural aspects of
the
merger in the questions and answers and thereby reduce the length
of
the questions and answers. Place substantive disclosure in the
summary. Further, focus your questions on those that lend
themselves
to brief, factual, and/or yes or no answers. Please revise
accordingly.
The Companies, page 9
5. In your brief discussion of Maytag`s and Whirlpool`s
businesses,
please note their current financial condition, including revenues
and
net income or losses for both companies for fiscal 2004.
Treatment of Maytag Stock Options, page 11
6. Please identify any executive officers or directors that are
also
holders of Maytag restricted stock units and performance units or
awards under Maytag`s Performance Incentive Award Plan and
Maytag`s
Executive Economic Profit Plan, since it appears that those
holders
could receive for their Maytag equity more than the merger
consideration described on page 10.
Opinion of Maytag`s Financial Advisor, page 12
7. Disclose the total fee that Maytag`s financial advisor will
receive and specifically note the amount and percentage of the fee
that will be paid only if the merger is successfully consummated.
Please consider adding a risk factor to address the contingent
nature
of the fee structure. Also, briefly describe the "unsolicited
offer
fee" and any limits on the amount that this fee could be. In
addition, confirm to us in your response letter that Whirlpool did
not rely upon a financial advisor concerning a merger or
acquisition
transaction with Maytag.
Interests of Certain Persons in the Merger, page 14
8. Confirm to us in your response letter that you do not expect
Whirlpool`s directors and executive officers to receive benefits,
such as equity-based awards that will be accelerated or retention
payments and arrangements, increases in salary and bonus or
incentive
opportunities, as a result of the merger.
9. Please also disclose here the $6,588,500 aggregate amount of
long-
term cash incentive payout awards that Maytag executive officers
will
receive upon completion of the merger. In addition, please
include
on an individual basis the aggregate value of executive officer
benefits or payments as a result of the merger, including the
$9,935,000 severance benefit for Maytag`s CEO Mr. Hake and the
vested
long-term cash incentive awards.
Conditions to the Merger, page 15
10. Disclose here whether it is the Maytag board`s intent to
resolicit stockholder approval of the merger if either party
waives
material conditions. We generally believe that resolicitation is
required when companies waive material conditions to a merger.
General
11. Briefly list the material events or changes that will follow
the
merger. For example, discuss any contemplated material debt
refinancings, equity repurchases, or significant restructurings.
Also, to offer investors a sense of the financial and operations
condition of Whirlpool following the merger, consider mentioning
Whirlpool`s costs related to the merger, such as its assumption of
any significant Maytag indebtedness, employee benefit and annual
bonus plans, and so on, as well as any detriments resulting from
the
merger, such as possible divestitures, increased supply demands,
or
excess manufacturing capacity, that may be material to Whirlpool`s
operations.
Risk Factors, page 27
General
12. We note your reference to risks described in documents that
Whirlpool and Maytag file with the Commission and incorporate by
reference into the proxy statement/prospectus. If you intend to
incorporate risk factors by reference, then please follow these
guidelines:
? You must identify the particular document and section of the
document that contains the risk factor disclosure that you are
incorporating by reference;
? Your risk factor disclosure must comply with Rule 421 of
Regulation C. See Question 3 of Updated Staff Legal Bulletin No.
7
(July 7, 1999); and
? Your risk factor disclosure must be current.
In the alternative, you may physically include the risk factor
disclosure in your document.
13. Tell us in your response letter what consideration you have
given
to including a risk factor that describes the impact of the
greater
indebtedness of the combined company, assuming a significant
portion
of Maytag`s outstanding indebtedness is not repurchased or
extinguished immediately after the merger.
Because the market price of Whirlpool common stock may fluctuate,
you
cannot be certain of the precise..., page 27
14. We note that the current market price of Whirlpool`s stock is
at
the low end of the collar. Please note this in this risk factor.
The price of Whirlpool common stock may be affected by factors
different..., page 29
15. We note your statement that "Whirlpool`s business is different
in
certain ways from that of Maytag...." To assist investors in
assessing the likelihood of the risk described in this risk
factor,
please highlight the relevant material differences between
Whirlpool
and Maytag.
Whirlpool may be unable to successfully integrate the
businesses...,
page 30
16. We note your statement that "Whirlpool expects certain
benefits
to arise from the merger, including certain cost savings, and
expects
to incur certain costs in order to attain these benefits." To
assist
investors in realizing the extent of the risk, please quantify the
costs to the extent possible.
Whirlpool`s pension plan and postretirement benefit funding
obligations..., page 31
17. To assist investors in realizing the magnitude of the risk,
please disclose the aggregate Whirlpool and Maytag obligations in
dollar terms as of a recent date.
The Special Meeting of Maytag Stockholders, page 34
18. We note your statement on page 35 that proxies may be
solicited
by mail, telephone, the Internet or other methods of
communication.
Please note that all written soliciting materials, including any
scripts used in soliciting proxies over the telephone, e-mail
correspondence and information posted on the Internet, must be
filed
under the cover of Schedule 14A. See Rule 14a-6(b) and (c).
Please
confirm your understanding in your response letter.
The Merger, page 39
General
19. In an appropriate subsection, disclose how Whirlpool intends
to
finance the acquisition. We note Whirlpool`s disclosure in its
August
22, 2005 Form 8-K.
Background of the Merger, page 40
20. In order to focus investors on the most salient events
preceding
the merger agreement, consider consolidating some of this section.
For example, rather than disclosing every meeting that took place,
you should consider highlighting only the material developments
that
resulted during the process.
21. Please revise your disclosure so that the most detailed
discussion in the section concerns how Maytag came to a decision
to
sell itself, how Whirlpool came to a decision to buy Maytag, and
the
negotiation of key aspects of the proposed Whirlpool-Maytag deal,
including:
* the exchange ratio and type of merger consideration;
* the structure of the transaction and the final percentage range
of
outstanding Whirlpool common shares that the Maytag shareholders
would own post-merger; and
* the deal protection provisions, including the reverse break-up
fee.
22. Discuss how and why Whirlpool made various decisions regarding
the merger. Disclose at the appropriate places in this section
how
Whirlpool determined the initial proposed merger consideration
amount
and then each subsequent revised proposed amount and deal term.
For
example, we note that, on August 8, 2005, Whirlpool submitted a
binding irrevocable offer with a higher per share price. Please
disclose what led Whirlpool to make the higher offer. Provide
similar disclosure for the increase presented to Maytag on August
10,
2005. We note the disclosure in Whirlpool`s August 22, 2005 Form
8-
K.
23. We note the discussion of the initial meetings between Maytag
and
Ripplewood on page 40. If retained, explain what "an evaluation
of
the global competitive environment of the home appliance industry"
and "strategic developments in the home appliance industry" were.
In
addition, explain why Maytag was not initially interested in
pursuing
a relationship with Ripplewood.
24. We note your disclosure on page 52 that the Maytag board
during
its July 21, 2005 meeting "was unable to determine at that time
that
the Whirlpool proposal could reasonably be expected to lead to a
financially superior transaction that was reasonably capable of
being
completed" and then during its July 24, 2005 meeting made the
opposite determination. Expand your discussion of the board`s
reasons for its determinations at each meeting. In this regard,
we
note Maytag`s disclosure in its July 25, 2005 definitive
additional
proxy solicitation materials. Provide similar disclosure
regarding
the determinations made at the August 12th and 22nd meetings.
25. Please elaborate on the "uncertainties" that you mention on
page
54 when you state "The special committee also discussed with its
advisors, the effect, if any, that the information obtained during
preliminary discussions with Whirlpool and its advisors had on the
analysis of the uncertainties related to a Whirlpool/Maytag
transaction."
26. Please disclose what material terms the Maytag special
committee
discussed during its August 8, 2005 late telephonic meeting.
27. Please state the closing price of Whirlpool`s common stock on
the
New York Stock Exchange on August 22, 2005, since the price was a
factor in the merger consideration formula. Also, disclose the
closing sale price of Maytag common stock on the date that the
Maytag
board approved the merger agreement.
Recommendation of Maytag`s Board of Directors, page 59
28. Describe in specific terms what it was about each factor that
supports or does not support the board`s decision.
29. Please address here what consideration the Maytag board, and
under the heading "Whirlpool`s Reasons for the Merger" what
consideration the Whirlpool board, gave to the possibility that
the
companies would be required to divest assets in order to obtain
the
approval of regulatory authorities under applicable antitrust laws
prior to the completion of the transaction. Please also include
disclosure, here and elsewhere as necessary, that describes the
extent to which any divestiture was or was not taken into account
as
the parties contemplated the expected synergies that are expected
to
result from the merger.
Opinion of Maytag`s Financial Advisor, page 61
30. Please provide us with any analyses, reports, presentations,
or
similar materials, including projections and forecasts, provided
to
or prepared by Maytag`s financial advisor in connection with
rendering its fairness opinion. We may have further comment upon
receipt of these materials.
31. Please disclose the date that the fairness advisor was engaged
to
provide its advisory services. Also provide us with a copy of the
engagement letter. As required by Item 1015(b)(3) of Regulation
M-A,
please briefly explain the method used by the Maytag board in
selecting Lazard to provide a fairness opinion. Also disclose any
instructions or limitations regarding the fairness opinion that
the
Maytag board provided to Lazard. See Item 1015(b)(6) of
Regulation
M-A.
32. To aid the average investor in understanding the financial
analyses summaries, revise each of them to explain in concise and
understandable language what the financial advisor did and how the
analysis and conclusion are relevant to stockholders and,
specifically, to the consideration that they are receiving in the
merger. For example, describe why the particular analyses were
used
and then why particular measures or methodologies were chosen for
each analysis. In your description, also include, among other
things, why any material aspects of either company were excluded
from
an analysis. In addition, please reduce the amount of financial
jargon and avoid unnecessary financial terms that make the
disclosure
difficult to understand. Among your revisions, explain what the
advisor means by "unlevered free cash flow" and "terminal value"
on
page 63.
33. Indicate the significance of the July 15, 2005 and August 19,
2005 dates on page 65 where you discuss Lazard`s review of the
historical price performance of Whirlpool`s common stock.
34. Indicate on what basis Lazard selected the acquisition
transactions it used in its premiums paid analysis described on
page
65 and what those transactions were.
35. You state on page 66 that Maytag has agreed to pay Lazard an
"unsolicited offer fee, the timing and amount, if any, of which is
to
be negotiated in good faith by Lazard and Maytag, with such
unsolicited offer fee to be credited against the $17.4 million fee
described above." Please convey what led Maytag to offer this fee
and the conditions for its payment to Lazard. Also, explain
whether
this offer fee could be greater than $17.4 million.
36. Disclose the compensation that the financial advisor received
for
the services it provided for Maytag during the past two years
pursuant to Item 1015(b)(4) of Regulation M-A.
Financial Projections, page 66
37. We note the base projections on page 69 and high case
projections
on page 72. Please revise both tables to make clear in the
respective table that "earnings per share" is not calculated
pursuant
to GAAP due to the exclusion of restructuring charges.
Whirlpool`s Reasons for the Merger, page 74
38. Significantly expand your discussion of Whirlpool`s reasons
for
acquiring Maytag in particular and at this time. Include in your
discussion the determinations made and material positive and
negative
factors considered by the Whirlpool board in this regard. We note
Whirlpool`s disclosures in its September 23, 2005 and September
30,
2005 Rule 425 filings, among others.
Interests of Certain Persons in the Merger, page 74
39. Please indicate when Maytag entered into the agreements
providing
for "change of control severance benefits" and also whether the
equity award vesting schedule is different from the original terms
of
the grants of stock options and performance units.
The Merger Agreement, page 84
40. We note your disclosure in the third paragraph on page 84 that
"information concerning the subject matter of the representations
and
warranties may have changed since the date of the agreement, and
this
information may or may not be fully reflected in the companies`
public disclosures." Please be advised that, notwithstanding the
inclusion of a general disclaimer, you are responsible for
considering whether additional specific disclosures of material
information regarding material contractual provisions are required
to
make the statements included in the proxy statement/prospectus not
misleading. Please revise as necessary.
Annexes to the Merger Agreement and Registration Statement
Exhibits
41. Pursuant to Item 601(b)(2) of Regulation S-K, please file a
list
briefly identifying the contents of all omitted schedules or
similar
supplements to the merger agreement. In addition, please file an
agreement to furnish to us a copy of any omitted schedule upon
request. The agreement to furnish us with copies of omitted
schedules may be included in the exhibit index to the registration
statement.
42. Please file as an exhibit the confidentiality and standstill
agreement you mention on page 77 as a "material contract" between
Whirlpool and Maytag.
43. With your next amendment, please file as exhibits or provide
us
with draft copies of the form of proxy card and the legality
opinion.
We will need adequate time to review and comment upon them.
Rule 425 filings
44. Please note that all Rule 425 communications filed after the
filing date of the Form S-4 must disclose the file number for the
Form S-4. See Rule 425(c) of Regulation C. Please include the
file
number for the Form S-4 in Whirlpool`s future Rule 425
communications.
* * * *
As appropriate, please amend your registration statement in
response to these comments. You may wish to provide us with
marked
copies of the amendment to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested information. Detailed cover
letters greatly facilitate our review. Please understand that we
may
have additional comments after reviewing your amendment and
responses
to our comments.
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filing to be certain that the
filing includes all information required under the Securities Act
of
1933 and that they have provided all information investors require
for an informed investment decision. Since the company and its
management are in possession of all facts relating to a company`s
disclosure, they are responsible for the accuracy and adequacy of
the
disclosures they have made.
Notwithstanding our comments, in the event the company
requests
acceleration of the effective date of the pending registration
statement, it should furnish a letter, at the time of such
request,
acknowledging that:
* should the Commission or the staff, acting pursuant to delegated
authority, declare the filing effective, it does not foreclose the
Commission from taking any action with respect to the filing;
* the action of the Commission or the staff, acting pursuant to
delegated authority, in declaring the filing effective, does not
relieve the company from its full responsibility for the adequacy
and
accuracy of the disclosure in the filing; and
* the company may not assert staff comments and the declaration of
effectiveness as a defense in any proceeding initiated by the
Commission or any person under the federal securities laws of the
United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in connection with our review of
your
filing or in response to our comments on your filing.
We will consider a written request for acceleration of the
effective date of the registration statement as confirmation of
the
fact that those requesting acceleration are aware of their
respective
responsibilities under the Securities Act of 1933 and the
Securities
Exchange Act of 1934 as they relate to the proposed public
offering
of the securities specified in the above registration statement.
We
will act on the request and, pursuant to delegated authority,
grant
acceleration of the effective date.
We direct your attention to Rules 460 and 461 regarding
requesting acceleration of a registration statement. Please allow
adequate time after the filing of any amendment for further review
before submitting a request for acceleration. Please provide this
request at least two business days in advance of the requested
effective date.
You may contact Cheryl Grant, Staff Attorney, at (202) 551-
3359,
or me, at (202) 551-3810, with any questions.
Sincerely,
Larry Spirgel
Assistant Director
cc: via facsimile (212-310-8007)
Ellen J. Odoner, Esq.
Weil, Gotshal & Manges LLP
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Mr. Hopp
Whirlpool Corporation
October 25, 2005
Page 10