Amendment dated February 14, 2022 to the Whirlpool Corporation Executive Performance Excellence Plan

EX-10.4 5 exhibit104-amendmenttoepep.htm EX-10.4 Document


The Whirlpool Corporation Executive Performance Excellence Plan is hereby amended as follows effective February 14, 2022:

1.Section 6.3 shall be deleted in its entirety and the following substituted therefor BONUS CLAWBACK:
(a)Any Participant who would otherwise be eligible for an award pursuant to a completed Plan Year may not be entitled to any payment under that award, and may be required to:
(i)repay the Company any payment of such award if the Participant is terminated by or otherwise leaves employment with the Company within two years following completion of the Plan Year and such termination of employment arises out of, is due to, or is in any way connected with any misconduct or violation of Company policy;
(ii)forfeit or repay the Company any payment of such award that was granted, earned, paid or deferred within the three years prior to the Participant’s termination of employment if the Committee determines in its sole discretion that (A) the Participant has violated or threatens to violate the terms of any confidentiality, non-solicit, non-compete or other restrictive covenant agreement Participant has with the Company or any of its subsidiaries or affiliates, or (B) the Participant, within two years following his or her termination of employment for any reason (1) directly or indirectly owns, operates, manages, or controls, or participates in the ownership, operation, management, or control of, any “Restricted Companies” (defined below), provided however, that nothing prevents the Participant from owning, as a passive investment, less than ten percent (10%) of a company's publicly traded stock, or (2) accepts employment with, consults for, or performs any services for any Restricted Companies anywhere in a “Restricted Area” (defined below) where such employment or engagement: (a) requires the Participant to serve in a position or perform services that are similar to the position the Participant held or duties the Participant performed for the Company, or (b) might cause the Participant to access, use or disclose
“Confidential Information” (defined below), provided, that the restrictions set forth in the foregoing clauses

(a)(ii)(B)(2)(a) and (a)(ii)(B)(2)(b) do not apply to (I) the provision of legal services as a licensed, practicing attorney to a Restricted Company or (II) employment with a non-competitive unit of a Restricted Company, so long as the Participant’s services do not otherwise violate this Plan or any confidentiality, non-solicit, non-compete or other restrictive covenant agreement Participant has with the Company or any of its subsidiaries or its affiliates; or
(iii)repay the Company any payment of such award for any other reason considered by the Committee in its sole discretion to be detrimental to the Company or its interests.
(b)Any determination by the Committee that the Participant is, or has, engaged in such activity or breached an obligation to the Company as set forth in Section 6.3(a) shall be conclusive.
(c)For purposes of Section 6.3(a) the following definitions shall apply:

(i)“Restricted Companies” means any company or a division of any company that designs, develops, manufactures, distributes or services products that compete with products designed, developed, manufactured, distributed, or serviced by the Company including but not limited to household appliances (including larger and small appliances) and associated products such as fans, filters, purifiers, cleaners, commercial appliances, air conditioners and filters, garage storage appliances and cabinets, consumables for the use and care of home appliances, and parts, aftermarket parts and accessories for home appliances, regardless of where those products are designed, developed, sold or manufactured (collectively, “the
Whirlpool Products and Services”). If the Company expands its business to include additional products or services during the Participant’s employment with the Company, as evidenced by the books, records and marketing materials of the Company, those products or services will be included in the Whirlpool Products and Services.
(ii)“Restricted Area” means the largest geographic area applicable to the Participant in this section based on the nature of any position the Participant held with the Company in the last two years of the Participant’s employment. Specifically:
(1)The Participant agrees that if he or she holds a Manager or equivalent level position or above, or if the Participant was an engineering, research, or product development position concerning the Company’s business, or a position that involves Confidential Information regarding new Company products and/or services under

development, such positions regularly involve Confidential Information and business relationships and related
Legitimate Business Interests that are not limited by geography. The Restricted Area for these roles is the United States and each country outside of the United States where the Company conducted business, had concrete plans
to conduct business, or marketed its products or services during the last two years of the Participant’s employment with the Company and/or its affiliate or subsidiary that employs the Participant.
(2)If the Participant is in a position with a defined geographic area or territory of responsibility and not in a management position, then the Participant agrees that the Restricted Area for such role is the geographic area(s), or territory or territories, assigned to the Participant during the last 24 months of employment.
(iii)“Confidential Information” means any non-public information about the Company’s business, plans, products, services, customers, suppliers, vendors, employees, and/or business partners. Confidential Information also includes non-public information belonging to third parties that the Company is obliged to keep confidential.
Confidential Information is a valuable asset that must be protected and safeguarded. The Company’s continued success, as well as the success and prosperity of its employees and shareholders, depends upon the preservation of this valuable asset. Improper use or disclosure of Confidential Information, even by accident, can irreparably harm the Company and also harm employees whose livelihood is tied to the Company’s continued success.
(iv)“Legitimate Business Interests” means, collectively, the Company’s Confidential Information, intellectual property, existing and prospective business relationships, employee relationships and specialized training, goodwill, and other legitimate business interests and assets (tangible and intangible), in and for which the Company has invested substantial time, money and resources to develop, protect and retain.
(d)The Committee in its discretion may require a Participant to repay the amounts, if any, derived from an award in the event of a restatement of the Company’s financial results within three years after payment of such award to correct a material error that is determined by the Committee to be the result of fraud or intentional misconduct. The Committee will review these clawback provisions to ensure compliance with any rules or regulations adopted by the Securities and Exchange Commission or the New York Stock Exchange to implement Section 10D of the Securities Exchange Act, as required by the Dodd-Frank Wall Street Reform and Consumer

Protection Act. Any changes required to be made to comply with such rules or regulations will apply to any award awarded under the Plan.
2.Section 8.6 shall be deleted in its entirety and the following substituted therefor RIGHTS OF PARTICIPANTS:
Nothing in this Plan shall interfere with or limit in any way the right of the Company to terminate or change a Participant’s employment at any time; nor does the Plan confer upon any Participant any right to continue as an employee of the Company for any period of time or to continue his present or any other rate of compensation. No Participant in a previous Plan Year, or other Employee at any time, shall have a right to be selected for participation in a current or future Plan Year. As a condition of a Participant’s participation in Plan for the 2022 Plan Year or in any Plan Year thereafter and as a matter of Company policy, the Final Award for 2022 (or for an applicable Plan Year thereafter) and Final Awards for prior Plan Years shall, (a) in each case, whether granted, earned, paid and/or deferred, be and remain subject to the applicable forfeiture and repayment provisions set forth in Section 6.3 of the Plan, as amended, and (b) be subject to the governing law, jurisdictional and other provisions set forth in Section 8.8 of the Plan, as amended.
3.Section 8.8 shall be deleted in its entirety and the following substituted therefor GOVERNING LAW; JURISDICTION:
Delaware law applies to any suit, action, or other legal proceeding arising out of or relating to the Plan and all determinations made and actions taken thereunder, except for any conflict of law principles and to the extent not otherwise governed by the Code or the laws of the United States. Any suit, action or other legal proceeding arising out of or relating in any way to the Plan, including any non-contractual claims involving related facts or issues, or any judgment entered by any court of competent jurisdiction in respect of any thereof, shall be brought exclusively in a court of competent jurisdiction in the State of Delaware or the United States District Court for the District of Delaware and the appellate courts having jurisdiction of appeals in such courts. In that context, and without limiting the generality of the foregoing, the Company and each Participant agree that they shall irrevocably and

unconditionally (a) submit in any proceeding relating to the Plan (a “Proceeding”), to the exclusive jurisdiction of the courts of the State of Delaware, the court of the United States of America for the District of Delaware, and appellate courts having jurisdiction of appeals from any of the foregoing, and agree that all claims in respect of any such Proceeding shall be heard and determined in such Delaware State court or, to the extent permitted by law, in such federal court, (b) consent that any such Proceeding may and shall be brought in such courts and waives any objection that the Company and each Participant may now or thereafter have to the venue or jurisdiction of any such Proceeding in any such court or that such Proceeding was brought in an inconvenient court and agree not to plead or claim the same, (c) waive all right to trial by jury in any Proceeding (whether based on contract, tort or otherwise) arising out of or relating to the Plan, (d) agree that service of process in any such Proceeding may be effected by mailing a copy of any such paper initiating any suit, action or Proceeding arising out of or relating to this Plan, in the case of a Participant, at the Participant’s address on file with the Company or, in the case of the Company, at the Company’s principal offices, attention General Counsel, and (e) agree that nothing in the Plan shall affect the right to effect service of process in any other manner permitted by the laws of the State of Delaware. In addition, while a Participant is employed by the Company, such Participant will keep a correct address on file with the Company and promptly notify the Company of any address change.