MOHAWK VOTING AGREEMENT
THIS MOHAWK VOTING AGREEMENT (this "AGREEMENT") is made and entered
into as of November 19, 2001 by and among DAL-TILE INTERNATIONAL INC., a
Delaware corporation ("DALLAS"), and the undersigned stockholder
("STOCKHOLDER") of MOHAWK INDUSTRIES, INC., a Delaware corporation
("MAVERICK").
RECITALS
A. Concurrently with the execution and delivery hereof, Maverick,
a wholly owned subsidiary of Maverick ("Maverick Sub") and Dallas are entering
into an Agreement and Plan of Merger of even date herewith (the "MERGER
AGREEMENT"), which provides for the merger (the "MERGER") of Dallas with and
into Maverick Subsidiary in accordance with its terms.
B. In consideration of the execution and delivery of the Merger
Agreement by Dallas, Stockholder (in its capacity as such) desires to agree to
vote the Shares (as defined herein) so as to facilitate the consummation of
the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto
hereby agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed thereto in the Merger
Agreement. For all purposes of and under this Agreement, the following terms
shall have the following respective meanings:
(a) "EXPIRATION DATE" means the earlier to occur of (i)
such date and time as the Merger Agreement shall have been validly terminated
pursuant to the terms of Article 10 thereof, or (ii) the Effective Time.
(b) "MAVERICK COMMON STOCK" means the shares of common
stock, $0.01 par value per share, of Maverick.
(c) "PERSON" means any individual, corporation, limited
liability company, general or limited partnership, unincorporated association,
joint venture, or other business enterprise or entity.
(d) "SHARES" means the shares of Maverick Common Stock
held by Stockholder.
(e) "TRANSFER" means, with respect to any security, to
directly or indirectly (i) sell, pledge, encumber, grant an option with
respect to, transfer or dispose of such security or any interest in such
security, or (ii) enter into an agreement, commitment or other arrangement to
sell, pledge, encumber, grant an option with respect to, transfer or dispose
of such security or any interest therein.
2. TRANSFER RESTRICTIONS.
(a) TRANSFER OF SHARES. Subject to the next following
sentence, at all times during the period commencing with the execution and
delivery of this Agreement and expiring on the Expiration Date, Stockholder
shall not Transfer any of the Shares, or discuss, negotiate, make an offer or
enter into an agreement, commitment or other arrangement with respect thereto,
unless each Person to which any of such Shares, or any interest in any of such
Shares, is or may be Transferred shall have: (i) executed a counterpart of
this Agreement (with such modifications as Dallas may reasonably request), and
(ii) agreed in writing to hold such Shares (or interest in such Shares)
subject to all of the terms and provisions of this Agreement. Notwithstanding
anything to the contrary in this Agreement or any other agreement relating to
the Merger, Stockholder may Transfer up to 1,800,000 of the Shares without any
limitation or restriction whatsoever under or as a result of this Agreement.
(b) TRANSFER OF VOTING RIGHTS. At all times during the
period commencing with the execution and delivery of this Agreement and
expiring on the Expiration Date, Stockholder shall not deposit (or permit the
deposit of) any Shares in a voting trust or grant any proxy or enter into any
voting agreement or similar agreement in contravention of the obligations of
Stockholder under this Agreement with respect to any of the Shares.
Notwithstanding anything to the contrary contained in this Agreement, the
provisions in this Section 2(b) shall not apply to any Shares Transferred in
accordance with the last sentence of Section 2(a) above.
3. AGREEMENT TO VOTE SHARES. Prior to the Expiration Date, at
every meeting of the stockholders of Maverick called, and at every adjournment
or postponement thereof, and on every action or approval by written consent of
the stockholders of Maverick, Stockholder (in Stockholder's capacity as such)
shall appear at the meeting or otherwise cause the Shares over which
Stockholder then has voting control to be present thereat for purposes of
establishing a quorum and shall cause the Shares over which Stockholder then
has voting control to be voted, to the extent not voted by the persons
appointed as proxies under the proxy, (i) in favor of the issuance of shares
of Maverick Common Stock in the Merger, and (ii) against any other action that
is intended, or could reasonably be expected to, impede, interfere with,
delay, postpone, discourage or adversely affect the consummation of the Merger
as soon as practicable following the date hereof.
4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER.
Stockholder hereby represents and warrants to Dallas as follows: (i)
Stockholder is the beneficial or record owner, and has sole voting control, of
the Shares of Maverick Common Stock indicated on the signature page of this
Agreement, free and clear of any Liens, (ii) Stockholder does not beneficially
own any securities of Maverick other than the shares of Maverick Common Stock
set forth on the signature page of this Agreement, and (iii) Stockholder has
full power and authority to make, enter into and carry out the terms of this
Agreement.
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5. ADDITIONAL DOCUMENTS. Stockholder (in Stockholder's capacity
as such) hereby covenants and agrees to execute and deliver any additional
documents necessary or desirable, in the reasonable opinion of Dallas, to
carry out the intent of this Agreement.
6. TERMINATION. This Agreement shall terminate and be of no
further force or effect whatsoever as of the Expiration Date.
7. SEVERABILITY. If any term or other provision of this
Agreement is held invalid, illegal or incapable of being enforced by any court
of competent jurisdiction, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party hereto. Upon such determination that
any term or other provision is invalid, illegal or incapable of being
enforced, the parties shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as possible in
an acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the fullest extent possible.
8. BINDING EFFECT AND ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns,
PROVIDED, HOWEVER, that except as otherwise specifically provided herein,
neither this Agreement nor any of the rights, interests or obligations of the
parties hereto may be assigned by either of the parties hereto without prior
written consent of the other party hereto.
9. AMENDMENTS AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by each of the parties hereto;
provided that any provision of this Agreement may be waived, or the time for
its performance may be extended, by the party or parties entitled to the
benefit thereof by a writing signed by such party or an authorized
representative thereof.
10. SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Dallas shall be irreparably harmed and that there shall be no
adequate remedy at law for a violation of any of the covenants or agreements
of Stockholder set forth in this Agreement. Therefore, Stockholder hereby
agrees that, in addition to any other remedies that may be available to Dallas
upon any such violation, Dallas shall have the right to enforce such covenants
and agreements by specific performance, injunctive relief or by any other
means available to Dallas at law or in equity.
11. NOTICES. All notices and other communications pursuant to
this Agreement shall be in writing and deemed to be sufficient if contained in
a written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to
the parties at the following address (or at such other address for a party as
shall be specified by like notice):
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If to Dallas: Dal-Tile International Inc.
0000 Xxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and to: Xxxxxx & Xxxxxx LLP
3700 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx Early
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Stockholder: To the address for notice set forth on the
signature page hereof.
and to: King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(a) GOVERNING LAW. This Agreement shall be governed by
the laws of the State of Delaware, without reference to principles of
conflicts of law.
(b) ENTIRE AGREEMENT. This Agreement together with the
documents expressly referred to herein, contain the entire understanding of
the parties in respect of the subject matter hereof, and supersede all prior
negotiations and understandings between the parties with respect to such
subject matter.
(c) OFFICERS AND DIRECTORS. To the extent that any
natural person who is or becomes an affiliate of Stockholder is or becomes
(during the term hereof) a director or officer of Maverick, he or she makes no
agreement or understanding herein in his or her capacity as such director or
officer, and nothing herein shall limit or affect, or give rise to any
liability to Stockholder or such affiliate of Stockholder by virtue of, any
actions taken by such affiliate of Stockholder in his or her capacity as an
officer or director of Maverick in exercising its rights under the Merger
Agreement.
(d) EFFECT OF HEADINGS. The section headings are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
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(e) COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first above written.
DAL-TILE INTERNATIONAL, INC. STOCKHOLDER:
ALADDIN PARTNERS, L.P.:
By: ASL Management Corporation, its
General Partner
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxx Xxxxxxxxxx
------------------------------ -------------------------------
(Signature)
Name: Xxxx X. Xxxxx Name: Xxxx Xxxxxxxxxx
---------------------------- -----------------------------
(Print Name)
Title: General Counsel Title: Chief Executive Officer
--------------------------- ----------------------------
(If Signing for Entity)
Address: 0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Telephone:
Facsimile:
Shares Beneficially Owned:
9,900,000 shares of Maverick Common
Stock
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