EXHIBIT
4.9


 


THIRD AMENDMENT


 


TO


 


THE MAYTAG CORPORATION


 


DEFERRED COMPENSATION PLAN II


 


WHEREAS, Maytag Corporation
(the “Corporation”) maintains the Maytag Corporation Deferred Compensation Plan
II (the “Plan”), as adopted effective December 1, 2004, and as amended through
the Second Amendment; and


 


WHEREAS, the Corporation has
entered into an Agreement and Plan of Merger, dated August 22, 2005, among the
Corporation, Whirlpool Corporation, a Delaware corporation (“Whirlpool”), and
Whirlpool Acquisition Co., a Delaware corporation and wholly owned subsidiary
of Whirlpool (the “Merger Agreement”); and


 


WHEREAS, pursuant to the
Merger Agreement all shares of the common stock of the Corporation will be
exchanged for Whirlpool Corporation common stock and cash under the terms of
the Merger Agreement; and


 


WHEREAS, Section 10.1 of the
Plan provides that the ERISA Executive Committee of the Corporation (the “Committee”)
may amend the Plan provided the amendment does not have a material cost impact
to the Corporation and its participating affiliates; and


 


WHEREAS, the Committee deems
it appropriate to amend certain provisions of the Plan to remove a fund
investing in the common stock of the Corporation as a hypothetical investment
alternative under the Plan and to provide that a fund investing in the common
stock of Whirlpool will be available as a hypothetical investment alternative;


 


NOW, THEREFORE, BE IT
RESOLVED, that the Committee has determined that this amendment will not have a
material cost impact on the Corporation or its participating affiliates; and


 


FURTHER RESOLVED, the
Committee hereby amends the Plan as follows effective immediately prior to the
Closing (as defined in the Merger Agreement):


 


1.             Section 1.1 of the Plan is hereby amended by restating
the first sentence of the second paragraph to read as follows:


 


The Plan is the successor to
the Maytag Corporation Deferred Compensation Plan I (As Adopted Effective
January 1, 2003), as amended by a First, Second, Third, Fourth, Fifth, Sixth,
Seventh and Eighth Amendment.


 

















 


2.             Section 2.1.9 of the Plan is hereby amended by adding
the following paragraph to the end thereof:


 


Notwithstanding any contrary
provision, any reference in this Plan to the Incentive Compensation Plan (or “ICP”)
or the Performance Incentive Award Plan (or “PIAP”) or the Executive Economic
Profit Plan (or “EEPP”) shall be read as a reference to any one or more bonus
programs, as determined by Maytag, which cover Employees who are in the
Eligible Group.


 


3.             Section 3.3.1 of the Plan is hereby deleted in its
entirety and replaced with the following:


 


3.3.1        Company Performance Match Credits. Company Performance Match Credits will be
made for each Plan Year on behalf of each Employee who elects to reduce,
pursuant to this Plan, his/her annual incentive bonus payable under one or more
incentive bonus plans maintained by the Company, and further elects to have the
resulting Elective Deferral Credits hypothetically invested in shares of common
stock of Whirlpool Corporation pursuant to Sec. 4.3. Company Performance Match
Credits for a Plan Year will be given not later than  the first business day of the next Plan Year
in an amount equal to ten percent (10%) of the Elective Deferral Credits
resulting from the election described above. Earnings Credits attributable to
such Company Performance Match Credits will be determined based on the
performance of a hypothetical investment in the common stock of Whirlpool
Corporation. An Employee may elect, pursuant to Sec. 4.3.2 of this Plan, that
Earnings Credits attributable to his or her Company Performance Match Credits
will be determined based on the performance of an investment option other than
a hypothetical investment in the common stock of Whirlpool Corporation only
after such Company Performance Match Credits fully vest pursuant to Sec. 5.2.1
or 5.2.2 of this Plan.


 


Notwithstanding any contrary
provision, any Company Performance Match Credits resulting from: (A) the
deferral of any amount paid pursuant to the ICP or EEPP during the 2006 Plan
Year prior to the Effective Time (as defined in the Agreement and Plan of
Merger dated August 22, 2005 among Maytag, Whirlpool Corporation, a Delaware
corporation and Whirlpool Acquisition Co. a Delaware corporation and wholly
owned subsidiary of Whirlpool Corporation (the “Merger Agreement”)), or (B) of
any bonus payment that is accelerated due to the change of control contemplated
by the Merger Agreement, shall initially be hypothetically invested in a
combination of phantom stock of Whirlpool Corporation and a phantom money
market investment option in an amount, respectively calculated by applying the
conversion ratio by which actual Maytag common stock would be converted into
common stock of Whirlpool Corporation and cash using the conversion formula
under the Merger Agreement.


 


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4.             Section 4.3.2 of the Plan is hereby deleted in its
entirety and replaced with the following:


 


4.3.2                        Earnings Credits. Maytag will establish a procedure by which
a Participant (or Beneficiary following the death of a Participant) may elect
to have his/her Earnings Credits determined based on the performance of one or
more investment options deemed to be available under the Plan. The Investment
Committee of Maytag, in its sole discretion, will determine the investment
options that will be available as benchmarks for determining the Earnings
Credit, which may include mutual funds, common or commingled investment funds
or any other investment option deemed appropriate by Maytag, and will include a
fund that invests in common stock of Whirlpool Corporation. The Investment
Committee of Maytag may at any time and from time to time add to or remove from
the investment options deemed to be available under the Plan.


 


A Participant (or Beneficiary
following the death of the Participant) will be allowed on a hypothetical basis
to direct the investment of his/her Account among the investment options
available under the Plan. Hypothetical investment directions may be given with
such frequency as is deemed appropriate by Maytag, and must be made in such
percentage or dollar increments, in such manner and in accordance with such
rules as may be prescribed for this purpose by Maytag (including by means of a
voice response or other electronic system under circumstances so authorized by
Maytag). If an investment option has a loss, the Earnings Credit attributable
to such investment option will serve to reduce the Account; similarly, if an
investment option has a gain, the Earnings Credit attributable to such
investment option will serve to increase the Account.


 


Any hypothetical investments
in common stock of Maytag under the Plan as of the Closing (as defined in the
Merger Agreement) will be converted into hypothetical investments in common
stock of Whirlpool Corporation and hypothetical cash credits in the same manner
that actual stock of Maytag is converted into the merger consideration under
the terms of the Merger Agreement. The resulting hypothetical cash credits will
be hypothetically invested in a money market investment option available under
this Plan and will thereafter be subject to the hypothetical investment
direction provisions of this Sec. 4.3.2.


 


Earnings Credits
attributable to Company Make-Whole Match Credits will initially be determined
based on the performance of a money market investment option available under
the Plan.


 


5.             Section 5.2.2 of the Plan is hereby deleted in its
entirety and replaced with the following:


 


5.2.2                        Vesting Based on Service. A Participant also will obtain a fully vested
interest in a Company Performance Match Account established for a given Plan
Year as of the


 


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date
that is three (3) years from the date that the applicable Company Performance
Match Credit was granted to the Participant (including grants under the Prior
Plan) provided he/she has been an Employee throughout that three (3) year
period. A Company Performance Match Credit is granted for this purpose on the
date the incentive bonus or payment that resulted in Company Performance Match
Credit would have been paid but for the election to defer such bonus or payment
under this Plan. Notwithstanding any contrary provision, any Company
Performance Match Credits credited to a Participant’s Company Performance Match
Account after the Effective Time (as Defined in the Merger Agreement) that do
not result from the deferral of a bonus payment that is accelerated under the
terms of the Merger Agreement will be subject to the three (3) vesting schedule
provided in this Sec. 5.2.2.


 


Notwithstanding
any contrary provision, a Participant will be deemed to at all times have a
fully vested interest in any Company Performance Match Account containing
Company Performance Match Credits resulting from Elective Deferral Credits attributable
to the deferral of any amount paid pursuant to the ICP or EEPP during the 2006
Plan Year prior to the Effective Time (as defined in the Merger Agreement) or
as a result of any bonus payment that is accelerated under the terms of the
Merger Agreement.


 


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IN WITNESS WHEREOF, the
Committee has caused this Amendment to be executed this 30th day of March,
2006.


 


	
   

  	
  /s/ Ralph F. Hake

  	
   

  
	
   

  	
  Ralph F. Hake, Chairman
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ George C. Moore

  	
   

  
	
   

  	
  George C. Moore, Executive
  Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Mark W. Krivoruchka

  	
   

  
	
   

  	
  Mark W. Krivoruchka,
  Senior Vice President, Human Resources

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Roger K. Scholten

  	
   

  
	
   

  	
  Roger K. Scholten, Senior
  Vice President, General Counsel

  
						



 


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