EXHIBIT 3

 

CERTIFICATE OF AMENDMENT

OF

RESTATED CERTIFICATE OF INCORPORATION

 

MAYTAG CORPORATION (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY THAT:

 

FIRST: The Board of Directors of the Corporation, at a meeting duly called and held, adopted the following resolution proposing an amendment to the Restated Certificate of Incorporation of the Corporation (the “Certificate of Incorporation of the Corporation”):

 

RESOLVED, that the Board of Directors of the Corporation hereby declares it advisable that the Certificate of Incorporation of the Corporation be amended by deleting Article Ninth in its entirety.

 

SECOND: Thereafter, on May 8, 2003, pursuant to the resolution of the Board of Directors of the Corporation, the annual meeting of the stockholders of the Corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares of capital stock as required by statute and the Certificate of Incorporation of the Corporation were voted in favor of adopting the foregoing amendment.

 

THIRD: The foregoing amendment was duly adopted in accordance with the applicable provisions of Section 242 of the General Corporation Law of the State of Delaware.

 

FOURTH: The capital of the Corporation shall not be reduced under or by reason of the foregoing amendment

 

IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by its Secretary this 4th day of June, 2003.

 

MAYTAG CORPORATION

By:

 

/S/    PATRICIA J. MARTIN        


   

Patricia J. Martin

Secretary

 


MAYTAG CORPORATION

 

                                         Exhibit 3(a)

 

                     Restated Certificate of Incorporation of Registrant.

                              MAYTAG CORPORATION 

             Incorporated Under the Laws of the State of Delaware

 

                     RESTATED CERTIFICATE OF INCORPORATION

 

 

                               November 6, 1989

 

 

                                   RESTATED

                         CERTIFICATE OF INCORPORATION

                                      of

                              MAYTAG CORPORATION

  

    Maytag Corporation was originally incorporated as The Maytag Company by

filing its original Certificate of Incorporation with the Secretary of State

on the 15th day of August, A.D. 1925.

 

    FIRST. The name of this corporation is Maytag Corporation. 

 

    SECOND. Its principal office in the State of Delaware is located at No.

1209 Orange Street, in the City of Wilmington, County of New Castle. The name

and address of its resident agent is The Corporation Trust Company, No. 1209

Orange Street, Wilmington, Delaware.

 

    THIRD. The nature of the business, or objects or purposes proposed to be

transacted, promoted or carried on are:

 

    To manufacture, obtain, use and operate under licenses or otherwise, and

to sell, license others to manufacture or use, lease or otherwise acquire, use

or in any manner dispose of any and all kinds of equipment, devices, machines

or machinery, motors, adjuncts and appurtenances, manufactured or used under

any one or more inventions, processes, methods or otherwise, relating to or

useful in domestic, industrial, manufacturing, mercantile, agricultural and

other pursuits; also metal, electrical, mechanical and mercantile specialties

and machines, appliances, utilities, devices, mechanical or otherwise, cast-

ings, implements, tools, fixtures, instruments and apparatus of every kind and

nature, and any other articles of commerce ordinarily made or used in a thor-

oughly equipped plant, machine shop, foundry, factory or laboratory, and more

particularly to manufacture, buy, sell, repair, alter and generally deal in

washing machines, laundry machinery, refrigerators and refrigerating devices

and household or other equipment, supplies, specialities and articles of every

kind and nature.

 

    To carry on the business of mechanical, laundry engineers and electrical

engineers, toolmakers, machinists, founders, metal workers, smiths, builders,

fitters, cutlers, and merchants, and any other business or businesses which

may seem calculated, directly or indirectly, to enhance the value of or render

profitable any of the company's property or rights, or conducive to any of the

company's objects.

 

    To design, manufacture, buy, sell, make, repair, alter, let on hire and

deal in apparatus, machinery, hardware and articles of all kinds capable of

being used for the purpose of any business herein mentioned or likely to be

required by customers of any such business.

<PAGE>

 

 

    To manufacture, purchase or otherwise acquire, hold, own, mortgage,

pledge, sell, assign and transfer or otherwise dispose of, to invest, trade,

deal in and deal with goods, wares, merchandise and real and personal property

of every class and description, and in particular, in lands, buildings, busi-

ness concerns and undertakings, mortgages, shares, stocks, debentures, securi-

ties, scrip, concessions, produce, policies, book debts and claims against

such property or against any person or corporation and to carry on any busi-

ness, concern or undertaking so acquired.

 

    To acquire the good will, rights and property, and to undertake the whole

or any part of the assets and liabilities of any person, firm, association, or

corporation and to pay for the some in cash, stocks, or bonds of this corpora-

tion or otherwise.

 

    To acquire, hold, use, sell, assign, lease, grant licenses in respect of,

mortgage or otherwise dispose of letters patent of the United States or any

foreign country, patents, patent rights, licenses and privileges, inventions,

improvements and processes, copyrights, trademarks and trade names, relating

to or useful in connection with any business of this corporation.

 

    To purchase, subscribe for or in any manner acquire, own, hold, receive,

dispose of the income from, sell, assign, transfer, pledge, mortgage or in any

manner dispose of and to exercise all the rights of individuals or natural

persons with respect to bonds, securities, evidences of indebtedness of, or

shares of stock or interest in any corporation, association or joint stock

company of the State of Delaware, or any other state, territory or country,

and while the owners of shares of stock of or interest in any corporation,

joint stock company, firm or association, to exercise all the rights and

privileges of such ownership, including the right to vote thereon, and to do

anything needful or convenient for the protection, improvement, betterment or

enhancement in value of such shares of stock or interest or bonds or obliga-

tions owned by the company, and to aid, in any manner, any such corporation,

joint stock company, firm or association, the stock, bonds, or other obliga-

tions of or interest in which are held by the company.

 

    To enter into, make, perform and carry out contracts of every kind neces-

sary and incidental to the business of the corporation, for any lawful pur-

pose, without limit as to amount, with any person, firm, association or corpo-

ration.

 

    To draw, make, accept, endorse, discount, execute and issue promissory

notes, bills of exchange, warrants, scrip and other negotiable or transferable

instruments or obligations.

 

    To guarantee the payment of dividends or interest on any shares of stock,

debentures, bonds or other securities, issued by this corporation or by any

other person, firm or corporation or on any contract or obligation of the

corporation, firm or individual whatever, which may be proper or necessary for

the business of the corporation.

<PAGE>

 

    To lend and advance money or give credit to such persons, firms, or

corporations and on such terms as may seem expedient, and in particular to

customers and others having dealings with this company, to give, guarantee or

become surety for such person, firm or corporation.

 

    To issue bonds, debentures or obligations of the corporation, from time

to time, for any of the objects or purposes of the corporation, and to secure

the same by mortgage, pledge, deed of trust or otherwise.

 

    To purchase, hold, acquire and reissue the shares of its capital stock;

provided it shall not use its funds or property for the purchase of its own

shares of capital stock when such use would cause any impairment of its capi-

tal; and provided further that shares of its own capital stock belonging to it

shall not be voted upon directly or indirectly.

 

    To have one or more offices, to carry on all or any part of its opera-

tions and business, without restriction or limit as to amount, and to purchase

or otherwise acquire, take, hold, own, mortgage, sell, convey or otherwise

dispose of real and personal property of every class and description in any of

the States, Districts, Territories, Possessions or Colonies of the United

States, and in any and all foreign countries.

 

    The foregoing clauses shall be construed both as objects and powers; and

it is hereby expressly provided that the foregoing enumeration of specific

powers shall not be held to limit or restrict in any manner the powers of this

corporation.

 

    In general, to carry on any other business in connection with the forego-

ing, whether manufacturing or otherwise, and to have and to exercise all the

powers conferred by the lows of Delaware upon corporations formed under the

act hereinafter referred to.

 

    FOURTH. The total number of shares of all classes of capital stock which

the Corporation shall have the authority to issue is 224,000,000 shares which

shall be divided into two classes as follows: (a) 24,000,000 shares of Pre-

ferred Stock ("Preferred Stock") of the par value of $1.00 per share; and (b)

200,000,000 shares of Common Stock ("Common Stock") of the par value of $1.25

per share.  Each share of Common Stock, par value $1.25 per share, issued

immediately prior to the taking effect of said amendment including shares held

by the Corporation as treasury shares, shall, upon the taking effect thereof,

be changed and reclassified into two (2) shares of Common Stock, par value

$1.25 per share (hereinafter called "New Common Stock"), and such shares of

New Common Stock shall thereupon be deemed to be validly issued, fully paid

and nonassessable. Each certificate representing shares of Common Stock issued

immediately prior to the taking effect of the amendment shall thereafter

continue to represent the same number of shares of New Common Stock.  The

Corporation shall issue to or upon the order of each person who held shares of

Common Stock of record immediately prior to the taking effect of the amend-

ment, a new certificate or certificates representing one (1) additional share

of New Common Stock for each share so held of record by the holder.

 

    The designations, voting powers, preferences and relative, participating,

optional or other special rights, and the qualifications, limitations or

restrictions of the above classes of stock shall be as follows:

 

    A.  PREFERRED STOCK

 

        (i) Shares of Preferred Stock may be issued in one or more series at

 

<PAGE>

such time or times, and for such consideration as the Board of Directors may

determine.

 

        (ii) The Board of Directors is expressly authorized at any time, and

from time to time, to provide for the issuance of shares of Preferred Stock in

one or more series with such designations, preferences and relative, partici-

pating, optional or other special rights and qualifications, limitations or

restrictions thereof as shall be stated and expressed in the resolution or

resolutions providing for the issue thereof adopted by the Board of Directors,

and as are not stated and expressed in this Certificate of Incorporation or

any amendment hereto including, but not limited to, determination of any of

the following:

 

        (a) The distinctive designation and the number of shares constituting

        a series, which number may (except as otherwise provided by the Board

        of Directors) be increased or decreased (but not below the number of

        shares then outstanding) from time to time by like action of the

        Board of Directors;

 

        (b) the dividend rate or rates and the preferences, if any, over any

        other class or series (or of any other class or series over such

        series) with respect to dividends, the terms and conditions upon

        which and the periods in respect of which dividends shall be payable,

        whether and upon what conditions such dividends shall be cumulative

        and, if cumulative, the date or dates from which dividends shall

        accumulate;

 

        (c) the voting powers, multiple, full or limited, if any, of the

        shares of such series and the extent of such voting powers;

 

        (d) whether the shares shall be redeemable and, if so, the terms and

        conditions on which the shares may be redeemed, including the time or

        times when, the price or prices at which and the manner in which such

        shares shall be redeemable (including the manner of selecting shares

        for redemption if less than all shares are to be redeemed);

 

        (e) the rights of the holders of the shares of such series, and the

        preferences, if any, over any other class or series (or of any other

        class or series over such series), upon the voluntary or involuntary

        liquidation, dissolution or winding up or merger, consolidation or

        distribution or sale of assets of the corporation;

 

        (f) whether the shares shall be entitled to the benefit of a sinking

        or retirement fund and, if so, the terms and conditions of such fund;

 

        (g) whether the shares shall be convertible into, or exchangeable

        for, shares of any other class or classes or of any other series of

        the same or any other class or classes of stock of the corporation or

        any other corporation, and if so convertible or exchangeable, the

        conversion price or prices, or the rate or rates of exchange, and the

        adjustments thereof, if any, at which such conversion or exchange may

        be made, and any other terms and conditions of such conversion or

        exchange; and

 

<PAGE>

        (h) any other preferences, privileges and powers, and relative,

        participating, optional or other special rights, and qualifications,

        limitations or restrictions of such series, as the Board of Directors

        may deem advisable and as shall not be inconsistent with the

        provisions of this Certificate of Incorporation or any amendment

        hereto.

 

        (iii) Shares of Preferred Stock which have been issued and reacquired

in any manner by the corporation (excluding, until the corporation elects to

retire them, shares which are held as treasury shares, but including shares

redeemed, shares purchased and retired and shares which have been converted

into or exchanged for shares of any other class or classes or any other series

of the same or any other class or classes of stock of the corporation or any

other corporation) shall have the status of authorized but unissued shares of

Preferred Stock and may be reissued.

 

    B.   COMMON STOCK

 

        (i) Subject to the preferential rights of the Preferred Stock, the

holders of the Common Stock shall be entitled to receive, to the extent per-

mitted by law, such dividends as may be declared from time to time by the

Board of Directors.

 

        (ii) Except as may be otherwise required by law or this Certificate

of Incorporation, each holder of Common Stock shall have one vote in respect

of each share of stock held by such holder of record on the books of the

corporation on all matters voted upon by the stockholders.

 

        (iii) In the event of the voluntary or involuntary liquidation,

dissolution, distribution of assets or winding up of the corporation, after

distribution in full of the preferential amount to be distributed to the

holders of shares of the Preferred Stock, holders of the Common Stock shall be

entitled to receive all the remaining assets of the corporation of whatever

kind available for distribution to stockholders, ratably in proportion to the

number of shares of Common Stock held by them respectively.

 

    C.   OTHER PROVISIONS

 

        (i) Subject to the conditions and restrictions of any outstanding

Preferred Stock, any amendment to this Certificate of Incorporation which

shall increase or decrease the authorized capital stock of any class or class-

es may be adopted by the affirmative vote of the holders of a majority of the

outstanding shares of the stock of the corporation entitled to vote thereon.

 

        (ii) No holder of Preferred Stock or Common Stock shall have any

right, as such holder, to purchase or subscribe for any security of the corpo-

ration now or hereafter authorized or issued. All such securities may be

issued and disposed of by the Board of Directors to such persons, firms,

corporations and associations for such lawful consideration, and on such

terms, as the Board of Directors in its discretion may determine, without

first offering the same, or any part thereof, to the holders of Preferred

Stock or Common Stock.

<PAGE>

    FIFTH.

 

    Section 1. No person who is or was at any time a director of the Company

shall be personally liable to the Company or its stockholders for monetary

damages for any breach of fiduciary duty by such person as a director; provid-

ed, however, that, unless and except to the extent otherwise permitted from

time to time by applicable law. The provisions of this Section shall not

eliminate or limit the liability of a director (i) for any breach of the

director's duty of loyalty to the Company or its stockholders, (ii) for any

act or omission by the director which is not in good faith or which involves

intentional misconduct or a knowing violation of law, (iii) under Section 174

of the Delaware General Corporation Law, (iv) for any transaction from which

the director derived an improper personal benefit, or (v) for any act or

omission occurring prior to the date this Section becomes effective. If the

Delaware General Corporation Law is amended after approval by the stockholders

of this provision to authorize corporate action further limiting or eliminat-

ing the personal liability of directors, then the liability of a director of

the Company shall be limited or eliminated to the fullest extent permitted by

the Delaware General Corporation Law, as so amended.

 

    Any repeal or modification of the foregoing paragraph by the stockholders

of the Company shall not adversely affect any right or protection of a direc-

tor of the Company existing at the time of such repeal or modification.

 

    Section 2. Any person who is or was a director, officer, employee, or

agent of the Company, or of any other corporation, partnership, joint venture,

trust, or other enterprise which he served as such at the request of the

Company shall in accordance with the provisions of this Article hereinafter

set forth be indemnified by the Company against expenses (including attorneys'

fees), judgments, fines, and amounts paid in settlement actually and reason-

ably incurred by him in connection with any threatened, pending, or completed

action, suit or proceeding, whether civil, criminal, administrative, or inves-

tigative (other than an action by or in the right of the Company), to which he

was or is a party, or is threatened to be made a party, by reason of his being

or having been a director, officer, employee, or agent of the Company or of

such other corporation, partnership, joint venture, trust, or other enter-

prise. The director, officer, employee, or agent shall be entitled to such

indemnification if he acted in good faith and in a manner he reasonably be-

lieved to be in, or not opposed to, the best interests of the Company, and,

with respect to any criminal action or proceeding, had no reasonable cause to

believe his conduct was unlawful. The termination of any action, suit, or

proceeding by judgment, order, settlement, conviction, or upon a plea of nolo

contendre or its equivalent, shall not, in itself create a presumption that

the person did not meet the standards of conduct set forth herein. In the case

of any action or suit by or in the right of the Company to procure a judgment

in its favor, such director, officer, employee, or agent shall be indemnified

against expenses (including attorneys' fees) actually and reasonably incurred

by him in connection with the defense or settlement of such action if he acted

in good faith and in a manner he reasonably believed to be in, or not opposed

to, the best interests of the Company, and except that no indemnification

shall be made in respect of any claim, issue, or matter as to which such

person shall have been adjudged to be liable to the Company unless and only to

the extent that the Court of Chancery or the court in which such action or

suit was brought shall determine upon application that, despite the adjudica-

<PAGE>

tion of liability but in view of all the circumstances of the case, such

person is fairly and reasonably entitled to such expenses which the Court of

Chancery or such other court shall deem proper.

 

    Section 3. To the extent that a director, officer, employee, or agent of

the Company has been successful on the merits or otherwise in defense of any

action, suit, or proceeding referred to in the preceding paragraph, or in

defense of any claim, issue, or matter therein, he shall be entitled, as of

right, to indemnification as provided in this Article. Any indemnification

under this Article (unless ordered by a court) shall be made by the Company as

authorized in the specific case upon a determination that indemnification of

the director, officer, employee, or agent is proper in the circumstances

because he has met the applicable standard of conduct set forth in Section 2

of this Article. Such determination shall be made (1) by the board of direc-

tors by a majority vote of a quorum consisting of directors who were not

parties to such action, suit, or proceeding; or (2) if such a quorum is not

obtainable, or, even if obtainable a quorum of disinterested directors so

directs, by independent legal counsel (who shall not be regular counsel of the

Company and shall have generally recognized competence to advise upon the

matter) in a written opinion; or (3) by the stockholders.

 

    Section 4. Expenses incurred in defending a civil or criminal action,

suit, or proceeding of the character described in this Article may be paid by

the Company in advance of the final disposition thereof upon receipt of an

undertaking by or on behalf of the director, officer, employee, or agent to

repay such amount if it shall be ultimately determined that he is not entitled

to indemnification under this Article.

 

    Section 5. The rights of indemnification and advancement of expenses

provided in or granted pursuant to this Article shall be in addition to any

other rights to which any such director, officer, employee, or agent may be

entitled as a matter of law, under any contract, bylaw, agreement, vote of

stockholders or disinterested directors or otherwise, both as to action in his

official capacity and as to action in another capacity while holding such

office, and in the event of such person's death, such rights shall extend to

his heirs and legal representatives. The foregoing rights shall be available

whether or not such person continues to be a director, officer, employee, or

agent at the time of incurring or becoming subject to such liability or ex-

penses and whether or not the claim asserted against him is based on matters

which antedate the adoption of this Article.

 

    Section 6. The Company shall have power to purchase and maintain insur-

ance on behalf of any person who is or was a director, officer, employee, or

agent of the Company, or is or was serving at the request of the Company as a

director, officer, employee, or agent of another corporation, partnership,

joint venture, trust, or other enterprise against any liability asserted

against him and incurred by him in any such capacity, or arising out of his

status as such, whether or not the Company would have the power to indemnify

him against such liability under the provisions of this Article.

 

    Section 7. For purposes of Sections 2 through 8 of this Article, refer-

ences to "the Company" shall include, in addition to the resulting corpora-

tion, any constituent corporation (including any constituent of a constituent)

absorbed in a consolidation or merger which, if its separate existence had

<PAGE>

 

continued, would have had power and authority to indemnify its directors,

officers, and employees or agents, so that any person who is or was a direc-

tor, officer, employee, or agent of such constituent corporation, or is or was

serving at the request of such constituent corporation as a director, officer,

employee, or agent of another corporation, partnership, joint venture, trust,

or other enterprise, shall stand in the same position under the provisions of

this Article with respect to such constituent corporation if its separate

existence had continued.

 

    Section 8. For purposes of this Article, references to "other enterpris-

es" shall include employee benefit plans; references to "fines" shall include

any excise taxes assessed on a person with respect to an employee benefit

plan; and references to "serving at the request of the Company" shall include

any service as a director, officer, employee or agent of the Company which

imposes duties on, or involves services by, such director, officer, employee,

or agent with respect to an employee benefit plan, its participants, or bene-

ficiaries; and a person who acted in good faith and in a manner he reasonably

believed to be in the interest of the participants and beneficiaries of an

employee benefit plan shall be deemed to have acted in a manner "not opposed

to the best interests of the Company" as referred to in this Article.

 

    SIXTH. This corporation is to have perpetual existence.

 

    SEVENTH. The private property of the stockholders shall not be subject to

the payment of corporate debts to any extent whatever.

 

    EIGHTH. In furtherance, and not in limitation of the powers conferred by

statute, the Board of Directors is expressly authorized:

 

    To make and alter the bylaws of this corporation, to fix the amount to   

be reserved as working capital over and above its capital stock paid in, to

authorize and cause to be executed mortgages and liens upon the real and

personal property of this corporation.

 

    From time to time to determine whether and to what extent, and at what

times and places and under what conditions and regulations, the accounts and

books of this corporation (other than the stock ledger), or any of them, shall

be open to inspection of stockholders; and no stockholder shall have any right

of inspecting any account, book or document of this corporation, except as

conferred by statute, unless authorized by a resolution of the stockholders or

directors.

 

    If the bylaws so provide, to designate two or more of its number to

constitute an executive committee, which committee shall for the time being,

as provided in said resolution or in the bylaws of this corporation, have and

exercise any or all of the powers of the Board of Directors in the management

of the business and affairs of this corporation, and have power to authorize

the seal of this corporation to be affixed to all papers which may require it.

 

    This corporation may in its bylaws confer powers upon its directors in

addition to the foregoing, and in addition to the powers and authorities

expressly conferred upon them by the statute.

 

<PAGE>

 

    Both stockholders and directors shall have power, if the bylaws so pro-

vide, to hold their meetings, and to have one or more offices within or with-

out the State of Delaware, and to keep the books of this corporation (subject

to the provisions of the statutes), outside of the State of Delaware at such

places as may be from time to time designated by the Board of Directors.

 

    The number, classification, qualifications and election of the Board of

Directors and the filling of vacancies thereon shall be as provided in the

bylaws. This final paragraph of Article EIGHTH shall not be amended or re-

scinded except by the affirmative vote of the holders of at least two-thirds

of the stock of the corporation issued and outstanding and entitled to vote,

at any regular or special meeting of the stockholders if notice of the pro-

posed alteration or amendment be contained in the notice of the meeting.

 

    NINTH. Except as otherwise expressly provided in this Article NINTH:

 

    (i) any merger or consolidation of the corporation with or into any other

corporation; or (ii) any sale, lease, exchange or other disposition of all or

substantially all of the assets of the corporation to or with any other corpo-

ration, person or other entity, shall require the affirmative vote of the

holders of at least two-thirds of the outstanding shares of capital stock of

the corporation issued and outstanding and entitled to vote if, as of the

record date for the determination of stockholders entitled to notice thereof

and to vote thereon, such other corporation, person or entity is the benefi-

cial owner, directly or indirectly, of 5 percent or more of the outstanding

shares of capital stock of the corporation issued and outstanding and entitled

to vote.

 

    The provisions of this Article NINTH shall not apply to any transaction

described in clauses (i) or (ii) of this Article, (a) with another corpora-

tion, person or other entity if the Board of Directors of the corporation

shall by resolution have approved a memorandum of understanding with such

other corporation, person, or other entity with respect to and substantially

consistent with such transaction prior to the time such other corporation,

person or other entity became the beneficial owner, directly or indirectly, of

5 percent or more of the outstanding shares of capital stock of the corpora-

tion entitled to vote; or (b) which has been approved by resolution unanimous-

ly adopted by the whole Board of Directors of the corporation at any time

prior to the consummation thereof.

 

    For the purposes of this Article NINTH, a corporation, person or other

entity shall be deemed to be the beneficial owner of any shares of capital

stock of the corporation (i) which it has the right to acquire pursuant to any

agreement, or upon exercise of conversion rights, warrants or options, or

otherwise, or (ii) which are beneficially owned, directly or indirectly (in-

cluding shares deemed owned through application of clause (i) of this para-

graph above), by any other corporation, person or other entity (a) with which

it or its "affiliate" or "associate" (as referenced below) has any agreement,

arrangement or understanding for the purpose of acquiring, holding, voting or

disposing of capital stock of the corporation or (b) which is its "affiliate"

or "associate" as those terms were defined in Rule 12B-2 of the General Rules

and Regulations under the Securities Exchange Act of 1934 as in effect on

March 1, 1977. For the purposes of this Article NINTH, the outstanding shares

of capital stock of the corporation shall include shares deemed owned through

 

<PAGE>

 

the application of clauses (i) and (ii) of this paragraph but shall not in-

clude any other shares which may be issuable pursuant to any agreement, or

upon exercise of conversion rights, warrants or options, or otherwise.

 

    The Board of Directors of the corporation shall have the power and duty

to determine for the purposes of this Article NINTH, on the basis of informa-

tion then known to it, whether (a) any corporation, person or other entity

beneficially owns, directly or indirectly, 5 percent or more of the outstand-

ing shares of capital stock of the corporation entitled to vote, (b) any sale,

lease, exchange or other disposition of part of the assets of the corporation

involves substantially all of the assets of the corporation, and (c) the

memorandum of understanding referred to above is substantially consistent with

the transaction to which it relates. Any such determination by the Board shall

be conclusive and binding for all purposes of this Article NINTH.

 

    This Article NINTH may not be amended or rescinded except by the affirma-

tive vote of the holders of at least two-thirds of the outstanding shares of

capital stock of the corporation issued and outstanding and entitled to vote

at any regular or special meeting of the stockholders if notice of the pro-

posed alteration or amendment be contained in the notice of the meeting.

 

    TENTH. This corporation reserves the right to amend, alter, change or

repeal any provision contained in this Certificate of Incorporation, in the

manner now or hereafter prescribed by statute, and all rights conferred upon

stockholders herein are granted subject to this reservation.

 

    ELEVENTH.

 

    Section 1. Vote Required for Certain Business Combinations.

 

    A. Higher Vote for Certain Business Combinations. In addition to any

affirmative vote required by law or this Certificate of Incorporation (includ-

ing, without limitation, Article NINTH hereof), and except as otherwise ex-

pressly provided in Section 2 of this Article ELEVENTH:

 

    (i) any merger or consolidation of the corporation or any subsidiary (as

    hereinafter defined) with (a) any Interested Shareholder (as hereinafter

    defined) or (b) any other corporation or other person (whether or not

    itself an Interested Shareholder) which is, or after such merger or

    consolidation would be, an Affiliate (as hereinafter defined) of an

    Interested Shareholder; or

 

    (ii) any plan of exchange for all outstanding shares of the corporation

    or any subsidiary or for any class of shares of either with (a) any

    Interested Shareholder or (b) any other corporation or other person

    (whether or not itself an Interested Shareholder) which is, or after such

    plan of exchange would be, an Affiliate of an Interested Shareholder; or

 

    (iii) any sale, lease, exchange, mortgage, pledge, transfer or other

    disposition (in one transaction or a series of transactions) to or with

    any Interested Shareholder or any Affiliate of any Interested Shareholder

    of any assets of the corporation or any subsidiary having an aggregate

    Fair Market Value of 10% or more of the total assets of the corporation

    and its subsidiaries on a consolidated basis; or

 

<PAGE>

 

    (iv) the issuance or transfer by the corporation or any subsidiary (in

    one transaction or a series of transactions) of any securities of the

    corporation or any subsidiary to any Interested Shareholder or any Affil-

    iate of any Interested Shareholder in exchange for cash, securities or

    other property (or a combination thereof) having an aggregate Fair Market

    Value of 10% or more of the total assets of the corporation and its

    subsidiaries on a consolidated basis; or

 

    (v) the adoption of any plan or proposal for the liquidation or dissolu-

    tion of the corporation proposed by or on behalf of an Interested Share-

    holder or any Affiliate of any Interested Shareholder; or

 

    (vi) any reclassification of securities (including any reverse stock

    split), or recapitalization of the corporation, or any merger or consoli-

    dation of the corporation with any of its subsidiaries or any other

    transaction (whether or not with or into or otherwise involving an Inter-

    ested Shareholder) which has the effect, directly or indirectly, of

    increasing the proportionate share of the outstanding shares of any class

    of equity or convertible securities of the corporation or any subsidiary

    which is directly or indirectly owned by an Interested Shareholder or any

    Affiliate of any Interested Shareholder;

 

shall require the affirmative vote of the holders of at least 80% of the

voting power of the then outstanding shares of capital stock of the corpora-

tion entitled to vote generally in the election of directors ("Voting Stock"),

voting together as a single class (it being understood that for purposes of

this Article ELEVENTH each share of the Voting Stock shall have the number of

votes granted to it pursuant to bylaw or this Certificate of Incorporation).

Such affirmative vote shall be required notwithstanding the fact that no vote

may be required, or that a lesser vote may be specified by law, this Certifi-

cate of Incorporation or in any agreement with any national securities ex-

change or otherwise.

 

    B. Definition of "Business Combination". The term "Business Combination"

as used in this Article ELEVENTH shall mean any transaction which is referred

to in any one or more of clauses (i) through (vi) of paragraph A of this

Section 1.

 

    Section 2. When Higher Vote is Not Required. The provisions of Section I

of this Article ELEVENTH shall not be applicable to any particular Business

Combination, and such Business Combination shall require only such affirmative

vote as is required by law and any other provision of this Certificate of

Incorporation, if all of the conditions specified in either of the following

paragraphs A and B are met:

 

    A. Approval by Continuing Directors. The Business Combination shall have

been approved by a majority of the Continuing Directors (as hereinafter de-

fined), it being understood that this condition shall not be capable of satis-

faction unless there is at least one Continuing Director.

 

    B. Price and Procedure Requirements. All of the following conditions

shall have been met:

 

    (i) The aggregate amount of the cash and the Fair Market Value (as here-

inafter defined) as of the date of the consummation of the Business Combina-

tion of consideration other than cash to be received per share by holders of

 

<PAGE>

each class of Voting Stock in such Business Combination shall be at least

equal to the highest of the following:

 

    (a) (if applicable) the highest per share price (including any brokerage

    commissions, transfer taxes and soliciting dealers' fees) paid by the

    Interested Shareholder for any shares of such class of Voting Stock

    acquired by it (1) within the two-year period immediately prior to the

    first public announcement of the proposed Business Combination (the

    "Announcement Date") or (2) in the transaction in which it became an

    Interested Shareholder, whichever is higher;

 

    (b) the Fair Market Value per share of such class of Voting Stock on the

    Announcement Date or on the date on which the Interested Shareholder

    became an Interested Shareholder (such latter date is referred to in this

    Article ELEVENTH as the "Determination Date"), whichever is higher;

 

    (c) (if applicable) the price per share equal to the Fair Market Value

    per share of such class of Voting Stock determined pursuant to paragraph

    B (i) (b) above, multiplied by the ratio of (1) the highest per share

    price (including any brokerage commissions, transfer taxes and soliciting

    dealers' fees) paid by the Interested Shareholder for any shares of such

    class of Voting Stock acquired by it within the two-year period immedi-

    ately prior to the Announcement Date to (2) the Fair Market Value per

    share of such class of Voting Stock on the first day in such two-year

    period upon which the Interested Shareholder acquired any shares of such

    class of Voting Stock; and

 

    (d) (if applicable) the highest preferential amount per share to which

    the holders of shares of such class of Voting Stock are entitled in the

    event of any voluntary or involuntary liquidation, dissolution or winding

    up of the corporation.

 

    Shares acquired or paid for by an Affiliate of the Interested Shareholder

shall be deemed to have been acquired or paid for at the same time by the

Interested Shareholder.

 

    (ii) The consideration to be received by holders of such class of Voting

Stock shall be in cash or in the same form as the Interested Shareholder has

previously paid for shares of such class. If the Interested Shareholder has

paid for shares of a class of Voting Stock with varying forms of considera-

tion, the form of consideration for such Voting Stock shall be either cash or

the form used to acquire the largest number of shares of such class previously

acquired by it.

 

    (iii) After such Interested Shareholder has become an Interested Share-

holder and prior to the consummation of such Business Combination: (a) except

as approved by a majority of the Continuing Directors, there shall have been

no failure to declare and pay at the regular date therefor any full quarterly

dividends (whether or not cumulative) on then outstanding shares of Preferred

Stock; (b) there shall have been (1) no reduction in the annual rate of divi-

dends paid on the Common Stock (except as necessary to reflect any subdivision

of the Common Stock), except as approved by a majority of the Continuing

Directors, and (2) an increase in such annual rate of dividends as necessary

to reflect any reclassification (including any reverse stock split), recapi-

 

<PAGE>

 

talization, reorganization or any similar transaction which has the effect of

reducing the number of outstanding shares of Common Stock, unless the failure

so to increase such annual rate is approved by a majority of the Continuing

Directors; and (c) such Interested Shareholder shall have not become the

beneficial owner of any additional shares of Voting Stock except as part of

the transaction which results in such Interested Shareholder becoming an

Interested Shareholder.

 

    (iv) After such Interested Shareholder has become an Interested Share-

holder, such Interested Shareholder shall not have received the benefit,

directly or indirectly (except proportionately as a shareholder), of any

loans, advances, guarantees, pledges or other financial assistance or any tax

credits or other tax advantages provided by the corporation, whether in antic-

ipation of or in connection with such Business Combination or otherwise.

 

    (v) A proxy or information statement describing the proposed Business

Combination and complying with the requirements of the Securities Exchange Act

of 1934 and the rules and regulations thereunder (or any subsequent provisions

replacing such Act, rules or regulations) shall be mailed to all holders of

Voting Stock at least 30 days prior to the consummation of such Business

Combination (whether or not such proxy or information statement is required to

be mailed pursuant to such Act, rules or regulations or subsequent provi-

sions).

 

    The requirements of subparagraphs (i) and (ii) above shall not apply to

any class of Voting Stock (other than Common Stock) hereafter authorized if

the provision creating or authorizing such class so provides and such provi-

sion has been approved by a majority of the Continuing Directors.

 

    Section 3. Certain Definitions. For the purposes of this Article

ELEVENTH:

 

    A. A "person" shall mean any individual, firm, corporation or other

entity.

 

    B. "Interested Shareholder" shall mean any person (other than the corpo-

ration or any subsidiary) who or which:

 

    (i) is the beneficial owner, directly or indirectly, of more than 10% of

    the voting power of the outstanding Voting Stock; or

 

    (ii) is an Affiliate of the corporation and at any time within the two-

    year period immediately prior to the date in question was the beneficial

    owner, directly or indirectly, of 10% or more of the voting power of the

    then outstanding Voting Stock; or

 

    (iii) is an assignee of or has otherwise succeeded to any shares of

    Voting Stock which were at any time within the two-year period immediate-

    ly prior to the date in question beneficially owned by any Interested

    Shareholder, if such assignment or succession shall have occurred in the

    course of a transaction or series of transactions not involving a public

    offering within the meaning of the Securities Act of 1933.

 

<PAGE>

    C.  A person shall be a "beneficial owner" of any Voting Stock:

 

    (i) which such person or any of its Affiliates or Associates (as herein-

    after defined) beneficially owns, directly or indirectly; or

 

    (ii) which such person or any of its Affiliates or Associates has (a) the

    right to acquire (whether such right is exercisable immediately or only

 

    after the passage of time), pursuant to any agreement, arrangement or

    understanding or upon the exercise of conversion rights, exchange rights,

    warrants or options, or otherwise, or (b) the right to vote pursuant to

    any agreement, arrangement or understanding; or

 

    (iii) which are beneficially owned, directly or indirectly, by any other

    person with which such person or any of its Affiliates or Associates has

    any agreement, arrangement or understanding for the purpose of acquiring,

    holding, voting or disposing of any shares of Voting Stock.

 

    D. For the purpose of determining whether a person is an Interested

Shareholder pursuant to paragraph B of this Section 3, the number of shares of

Voting Stock deemed to be outstanding shall include shares deemed owned

through application of paragraph C of this Section 3 but shall not include any

other shares of Voting Stock which may be issuable pursuant to any agreement,

arrangement or understanding, or upon exercise of conversion rights, warrants

or options, or otherwise.

 

    E. "Affiliate" or "Associate" shall have the respective meanings ascribed

to such terms in Rule 12b-2 of the General Rules and Regulations under the

Securities Exchange Act of 1934, as in effect on March 1, 1984.

 

    F. "Subsidiary" means any corporation of which a majority of any class of

equity security is owned, directly or indirectly, by the corporation; provid-

ed, however, that for the purposes of the definition of Interested Shareholder

set forth in paragraph B of this Section 3, the term "subsidiary" shall mean

only a corporation of which a majority of each class of equity security is

owned, directly or indirectly, by the corporation.

 

    G. "Continuing Director" means any member of the Board of Directors of

the corporation (the "Board") who is unaffiliated with the Interested Share-

holder and was a member of the Board prior to the time that the Interested

Shareholder became an Interested Shareholder, and any successor of a Continu-

ing Director who is unaffiliated with the Interested Shareholder and is recom-

mended to succeed a Continuing Director by a majority of Continuing Directors

then on the Board.

 

    H. "Fair Market Value" means: (i) in the case of stock, the highest

closing sale price during the 30-day period immediately preceding the date in

question of a share of such stock on the Composite Tape for New York Stock

Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape,

on the New York Stock Exchange, or, if such stock is not listed on such Ex-

<PAGE>

change, on the principal United States securities exchange on which such stock

is listed, or, if such stock is not listed on any such exchange, the highest

closing sale price or bid quotation, whichever is reported in the financial

press, with respect to a share of such stock during the 30-day period preced-

ing the date in question on the National Association of Securities Dealers,

Inc., Automated Quotations System or any system then in use, or if no such

quotations are available, the fair market value on the date in question of a

share of such stock as determined by the Board in good faith; and (ii) in the

case of property other than cash or stock, the fair market value of such

property on the date in question as determined by the Board in good faith.

 

    I. In the event of any Business Combination in which the corporation

survives, the phrase "other consideration to be received" as used in paragraph

B (i) of Section 2 of this Article ELEVENTH shall include the shares of any

class of outstanding Voting Stock retained by the holders of such shares.

 

    J. References to a "class of Voting Stock" shall include any separate

series of a class.

 

    Section 4. Powers of the Board. The Board shall have the power and duty

to determine for the purposes of this Article ELEVENTH, on the basis of infor-

mation known to it after reasonable inquiry, (A) whether a person is an Inter-

ested Shareholder, (B) the number of shares of Voting Stock beneficially owned

by any person, (C) whether a person is an Affiliate or Associate of another

and (D) whether the assets which are the subject of any Business Combination

have, or the consideration to be received for the issuance or transfer of

securities by the corporation or any subsidiary in any Business Combination

have or has an aggregate Fair Market Value of 10% or more of the total assets

of the corporation and its subsidiaries on a consolidated basis. Any such

determination made in good faith shall be binding and conclusive on all par-

ties.

 

    Section 5. No Effect on Fiduciary Obligations of Interested Shareholders.

Nothing contained in this Article ELEVENTH shall be construed to relieve any

Interested Shareholder from any fiduciary obligation imposed by law.

 

    Section 6. Amendment or Repeal. Notwithstanding any other provision of

law, this Certificate of Incorporation or the bylaws of the corporation (and

notwithstanding the fact that a lesser vote may be specified by law, this

Certificate of Incorporation or the bylaws of the corporation), and in addi-

tion to any affirmative vote of holders of any class of capital stock of the

corporation or any series of any such class then outstanding which is required

by law or by or pursuant to this Certificate of Incorporation, the affirmative

vote of the holders of 80% or more of the voting power of the shares of the

then outstanding Voting Stock, voting together as a single class, shall be

required to amend or repeal this Article ELEVENTH.

 

    TWELFTH. Any action required or permitted to be taken by the stockholders

of the Corporation may be be effected solely at a duly called annual or spe-

cial meeting of stockholders of the Corporation and may not be effected by any

consent in writing by such stockholders.

 

    This restated Certificate of Incorporation was duly adopted by the Board

of Directors of the Corporation at it's regular meeting held November 6, 1989

in accordance with the provisions of Section 245 of the Delaware Corporation

Law.  It relates and integrates and does not further amend the provisions of

 

<PAGE>

Maytag Corporation's Certificate of Incorporation as heretofore amended and

supplemented, and there is no discrepancy between those provisions and the

provisions of this restated Certificate of Incorporation.

 

    Dated this 6th day of November, A.D. 1989.

 

 

 

 

 

 

                                          _________________________

                                          D. J. Krumm, Chairman

 

 

____________________________

Attest

 

 

<PAGE>

 

 

                              STATE OF DELAWARE

 

                         OFFICE OF SECRETARY OF STATE

 

 

 

    I, GLENN C. KENTON, Secretary of the State of Delaware, do hereby  certify

that the above  and foregoing corresponds with and includes  all of the provi-

sions  of the Restated Certificate of Incorporation of Maytag Corporation," as

received and filed in this  office the 6th day of November, A. D.  1989, at 10

o'clock A.M.

 

 

        IN TESTIMONY WHEREOF, I have hereunder set my hand and

        official seal at Dover this 6th day of November in the year

        of our Lord one thousand nine hundred and eighty-nine.

 

 

 

 

                                   /s/   Glenn C. Kenton________

                                       Secretary of State

SEAL

 

                                   By:  /s/       M. Toon____________