EXHIBIT 4.01
Amendment to Rights Agreement
AMENDMENT TO RIGHTS AGREEMENT
BETWEEN MAYTAG CORPORATION AND
COMPUTERSHARE INVESTOR SERVICES, LLC
This AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is made as of
August 22, 2005, between Maytag Corporation, a Delaware corporation (the
"Company") and Computershare Investor Services, LLC (the "Rights Agent").
WHEREAS, the Company is entering into an Agreement and Plan of Merger
(as the same may be amended from time to time, the "Merger Agreement"), among
the Company, WHIRLPOOL CORPORATION., a Delaware corporation ("Parent"), and
WHIRLPOOL ACQUISITION CO., a Delaware corporation and a wholly owned subsidiary
of Parent ("Sub"), pursuant to which Sub will merge with and into the Company,
and the Company will survive as a wholly owned subsidiary of Parent, whereby all
of the Company's issued Common Shares will be converted into the right to
receive (x) $10.50 in cash, without interest, and (y) that number of validly
issued, fully paid and non-assessable shares of Parent Common Stock (as such
term is defined in the Merger Agreement) equal to the Exchange Ratio (as such
term is defined in the Merger Agreement).
WHEREAS, the Company and the Rights Agent are parties to that certain
Rights Agreement, dated as of February 12, 1998, as amended by the Amendments to
the Rights Agreement between the Company and the Rights Agent, dated as of
November 15, 2004 and May 19, 2005 (the "May Amendment") (as amended from time
to time, the "Rights Agreement");
WHEREAS, the Company desires to amend the Rights Agreement in
connection with the execution and delivery of the Merger Agreement; and
WHEREAS, the Board of Directors of the Company has approved this
Amendment and authorized its appropriate officers to execute and deliver the
same to the Rights Agent.
NOW, THEREFORE, in accordance with the procedures for amendment of
the Rights Agreement set forth in Section 27 thereof, and in consideration of
the foregoing and the mutual agreements herein set forth, the parties hereby
agree as follows:
1. Capitalized terms that are not otherwise defined herein shall
have the meanings ascribed to them in the Rights Agreement.
2. The definition of "Acquiring Person" set forth in Section 1 of
the Rights Agreement is amended by deleting the last sentence at the end of that
definition, which was added by the May Amendment, and adding the following
sentence to the end of the definition as amended hereby:
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"Notwithstanding anything else set forth in this Agreement, no Person
shall be or become an Acquiring Person by reason of (i) the execution
and delivery or amendment of the Agreement and Plan of Merger, dated
as of August 22, 2005, among WHIRLPOOL CORPORATION., a Delaware
corporation ("Parent"), WHIRLPOOL ACQUISITION CO., a Delaware
corporation and a wholly owned subsidiary of Parent ("Sub") and MAYTAG
CORPORATION, a Delaware corporation (the "Company"), as the same may
be amended from time to time, the "Merger Agreement" or the execution
and delivery of any amendment thereto, (ii) the merger of Sub with and
into the Company, or (iii) the consummation of any other transaction
contemplated by the Merger Agreement."
3. The definition of "Shares Acquisition Date" in Section 1 of the
Rights Agreement is hereby amended by deleting the last sentence at the end of
that definition, which was added by the May Amendment, and by adding the
following sentence to the end of the definition as amended hereby:
"Notwithstanding anything else set forth in this Agreement, a Shares
Acquisition Date shall not be deemed to have occurred by reason of (i)
the execution and delivery or amendment of the Merger Agreement, (ii)
the merger of Sub with and into the Company, or (iii) the consummation
of any other transaction contemplated by the Merger Agreement."
4. Section 3(a) of the Rights Agreement is hereby amended by
deleting the last sentence at the end of that section, which was added by the
May Amendment, and by adding the following sentence to the end of Section 3(a)
as amended hereby:
"Notwithstanding anything else set forth in this Agreement, no
Distribution Date shall be deemed to have occurred by reason of
(i) the execution and delivery or amendment of the Merger Agreement,
(ii) the merger of Sub with and into the Company, or (iii) the
consummation of any other transaction contemplated by the Merger
Agreement."
5. Section 7(a) of the Rights Agreement is further amended by
deleting clause (iv) of Section 7(a), which was added by the May Amendment, and
by adding the following clause at the end of Section 7(a) as amended hereby:
"(iv) the moment in time immediately prior to the Effective Time (as
such term is defined in the Merger Agreement) (the earliest to occur
of the events described in clauses (i) through (iv) of this Section
7(a) shall be referred to as the "Final Expiration Date")."
6. Section 11(a)(ii) of the Rights Agreement is hereby amended by
deleting the last sentence of that section, which was added by the May
Amendment, and by adding the following sentence to the end of Section 11(a)(ii)
as amended hereby:
"Notwithstanding anything else set forth in this Agreement, no event
requiring an adjustment under this Section 11(a)(ii) shall be deemed
to have occurred by reason of (i) the execution and delivery or
amendment of the Merger Agreement, (ii) the merger
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of Sub with and into the Company, or (iii) the consummation of any
other transaction contemplated by the Merger Agreement."
7. Section 13 of the Rights Agreement is hereby amended in its
entirety to read as follows:
"In the event that, at any time after a Person becomes an Acquiring
Person, directly or indirectly, (i) the Company shall consolidate
with, or merge with and into, any other Person, (ii) any Person shall
consolidate with the Company, or merge with and into the Company and
the Company shall be the continuing or surviving corporation of such
merger and, in connection with such merger, all or part of the Common
Shares shall be changed into or exchanged for stock or other
securities of any other Person (or the Company) or cash or any other
property, or (iii) the Company shall sell or otherwise transfer (or
one or more of its Subsidiaries shall sell or otherwise transfer), in
one or more transactions, assets or earning power aggregating 50% or
more of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person other than the
Company or one or more of its wholly-owned Subsidiaries (other than,
in the case of any transaction described in (i), (ii) or (iii) above,
the merger of Sub with and into the Company), then, and in each such
case, proper provision shall be made so that (A) each holder of a
Right (except as otherwise provided herein) shall thereafter have the
right to receive, upon the exercise thereof at a price equal to the
then current Purchase Price multiplied by the number of one
one-hundredths of a Preferred Share for which a Right is then
exercisable, in accordance with the terms of this Agreement and in
lieu of Preferred Shares, such number of Common Shares of such other
Person (including the Company as successor thereto or as the surviving
corporation) as shall equal the result obtained by (x) multiplying the
then current Purchase Price by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable and dividing
that product by (y) 50% of the then current per share market price of
the Common Shares of such other Person (determined pursuant to Section
11(d) hereof) on the date of consummation of such consolidation,
merger, sale or transfer; (B) the issuer of such Common Shares shall
thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations and
duties of the Company pursuant to this Agreement; (C) the term
"Company" shall thereafter be deemed to refer to such issuer; and (D)
such issuer shall take such steps (including, but not limited to, the
reservation of a sufficient number of its Common Shares in accordance
with Section 9 hereof) in connection with such consummation as may be
necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to the Common
Shares thereafter deliverable upon the exercise of the Rights. The
Company covenants and agrees that it shall not consummate any such
consolidation, merger, sale or transfer (other than the merger of Sub
with and into the Company) unless prior thereto the Company and such
issuer shall have executed and delivered to the Rights Agent a
supplemental agreement so providing. The Company shall not enter into
any transaction of the kind referred to in this Section 13 (other than
the merger of Sub with and into the Company) if at the time of such
transaction there are any rights, warrants, instruments or securities
outstanding or any agreements or arrangements which, as a result of
the consummation of such transaction, would
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eliminate or substantially diminish the benefits intended to be
afforded by the Rights. The provisions of this Section 13 shall
similarly apply to successive mergers or consolidations or sales or
other transfers. For purposes hereof, the "earning power" of the
Company and its Subsidiaries shall be determined in good faith by the
Company's Board of Directors on the basis of the operating earnings of
each business operated by the Company and its Subsidiaries during the
three fiscal years preceding the date of such determination (or, in
the case of any business not operated by the Company or any Subsidiary
during three full fiscal years preceding such date, during the period
such business was operated by the Company or any Subsidiary)."
8. The Rights Agreement, as amended by this Amendment, shall remain
in full force and effect in accordance with its terms.
9. All the covenants and provisions of this Amendment by or for the
benefit of the Company or the Rights Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
10. Nothing in this Amendment shall be construed to give to any
person or corporation other than the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, the Common Shares) any legal or equitable right, remedy or claim under
this Amendment; but this Amendment shall be for the sole and exclusive benefit
of the Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares).
11. 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 shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
12. 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 to
be made and performed entirely within such State.
13. 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.
Remainder of Page Intentionally Left Blank
EXHIBIT 4.01
IN WITNESS WHEREOF, the parties herein have caused this Amendment to
Rights Agreement to be duly executed and attested, all as of the date and year
first above written.
MAYTAG CORPORATION
By: /s/ Roger K. Scholten
-----------------------------
Name: Roger K. Scholten
Title: Sr. V.P.
COMPUTERSHARE INVESTOR SERVICES LLC
By: /s/ Keith Bradley
-----------------------------
Name: Keith Bradley
Title: Vice President