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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EXHIBIT 4.01
"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 claus
