Amendment to Rights Agreement EXHIBIT 4.02
AMENDMENT TO RIGHTS AGREEMENT
BETWEEN MAYTAG CORPORATION AND
COMPUTERSHARE INVESTOR SERVICES LLC
This AMENDMENT TO RIGHTS AGREEMENT (this "Amendment") is made as of May
19, 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, TRITON ACQUISITION HOLDING CO., a Delaware corporation ("Parent"),
and TRITON ACQUISITION CO., a Delaware corporation and a wholly owned subsidiary
of Parent ("Merger Sub"), pursuant to which Merger 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 $14 in cash;
WHEREAS, the Company and the Rights Agent are parties to that certain
Rights Agreement, dated as of February 12, 1998 (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 adding the following sentence to the end
of that definition:
"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 May
19, 2005, among TRITON ACQUISITION HOLDING CO., a Delaware corporation
("Parent"), and TRITON ACQUISITION CO., a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger 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 Merger 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 adding the following sentence to the end
of that definition:
"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 Merger 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 adding
the following sentence to the end of that section:
"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 Merger
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 the word "or" at the end of clause (ii) of Section 7(a) and by adding
the following clause at the end of Section 7(a):
", or (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
adding the following sentence to the end of that section:
"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 of Merger 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 to read as
follows:
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"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 ex- changed 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 Merger 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 Merger 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 Merger 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 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
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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
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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/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Sr. V. P
COMPUTERSHARE INVESTOR SERVICES LLC
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: General Counsel & Secretary
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