FORM OF
DAL-TILE INTERNATIONAL INC.
VOTING AGREEMENT
THIS DAL-TILE INTERNATIONAL INC. VOTING AGREEMENT (this "AGREEMENT")
is made and entered into as of November 19, 2001 by and among Mohawk
Industries, Inc., a Delaware corporation ("MAVERICK"), and the undersigned
stockholder ("STOCKHOLDER") of Dal-Tile International Inc., a Delaware
corporation ("DALLAS").
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 and Reorganization of even date
herewith (the "MERGER AGREEMENT"), which provides for the merger (the
"MERGER") of Dallas with and into Maverick Sub in accordance with its terms.
B. Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) of
such number of shares of the outstanding capital stock of Dallas and shares
subject to outstanding options and warrants as is indicated on the signature
page of this Agreement.
C. In consideration of the execution and delivery of the Merger
Agreement by Maverick and Maverick Sub, Stockholder (in his or her capacity as
such) desires to agree to vote the Shares (as defined herein) and other such
shares of capital stock of Dallas over which Stockholder has voting power 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) "DALLAS COMMON STOCK" means the common stock, par
value $0.01 per share, of Dallas.
(b) "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.
(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 (i) all shares of Dallas Common Stock
and other voting securities of Dallas owned, beneficially or of record, by
Stockholder as of the date hereof, and (ii) all additional shares of Dallas
Common Stock and other voting securities of Dallas acquired by Stockholder,
beneficially or of record, during the period commencing with the execution and
delivery of this Agreement and expiring on the Expiration Date.
(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. At all times during the period
commencing with the execution and delivery of this Agreement and expiring on
the Expiration Date, Stockholder shall not, except in connection with the
Merger or as the result of the death of the Stockholder, 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 and the
Proxy (as defined in SECTION 4 hereof) (with such modifications as Maverick
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.
(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.
3. AGREEMENT TO VOTE SHARES. Prior to the Expiration Date, at
every meeting of the stockholders of Dallas called, and at every adjournment
or postponement thereof, and on every action or approval by written consent of
the stockholders of Dallas, Stockholder (in Stockholder's capacity as such)
shall appear at the meeting or otherwise cause the Shares to be present
thereat for purposes of establishing a quorum, and shall cause the Shares to
be voted, to the extent not voted by the persons appointed as proxies under
the Proxy, (i) in favor of the approval and adoption of the Merger Agreement
and in favor of approval of the Merger, (ii) against the approval or adoption
of any proposal made in opposition to, or in competition with, the Merger
Agreement and consummation of the Merger, and (iii) against any of the
following (to the extent unrelated to the Merger Agreement and the Merger):
(A) any merger, consolidation or business combination involving Dallas; (B)
any sale, lease or transfer of any significant portion of the assets of Dallas
or any of its subsidiaries; (C) any reorganization, recapitalization,
dissolution, liquidation or winding up of Dallas or any of its
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subsidiaries; (D) any material change in the capitalization of Dallas or the
corporate structure of Dallas; or (E) 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.
4. IRREVOCABLE PROXY. Concurrently with the execution and
delivery of this Agreement, Stockholder shall deliver to Maverick an
Irrevocable Proxy in the form attached hereto as EXHIBIT A (the "PROXY"),
which shall be irrevocable to the fullest extent permitted by applicable law
and coupled with an interest, with respect to the Shares.
5. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER.
Stockholder hereby represents and warrants to Maverick as follows: (i)
Stockholder is the beneficial or record owner of the shares of Dallas 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 Dallas
other than the shares of Dallas Common Stock and options and warrants to
purchase shares of Dallas 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 and the Proxy.
6. 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 Maverick, to
carry out the intent of this Agreement.
7. TERMINATION. This Agreement shall terminate and be of no
further force or effect whatsoever as of the Expiration Date.
8. 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.
9. 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,
including, without limitation, upon the death of the Stockholder, his estate,
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.
10. AMENDMENTS AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written
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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.
11. SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties hereto
acknowledge that Maverick 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
Maverick upon any such violation, Maverick shall have the right to enforce
such covenants and agreements by specific performance, injunctive relief or by
any other means available to Maverick at law or in equity.
12. 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):
If to Maverick: Mohawk Industries, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and to: ▇▇▇▇▇▇ & Bird LLP
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Stockholder: To the address for notice set forth on the
signature page hereof.
(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 and the Proxy,
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.
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(c) OFFICERS AND DIRECTORS. To the extent that
Stockholder is or becomes (during the term hereof) a director or officer of
Dallas, 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 by virtue of, any actions
taken by Stockholder in his or her capacity as an officer or director of
Dallas 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.
(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.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first above written.
MOHAWK INDUSTRIES, INC. STOCKHOLDER:
By: By:
------------------------------ -------------------------------
(Signature)
Name: Name:
---------------------------- -----------------------------
(Print Name)
Title: Title:
--------------------------- ----------------------------
(If Signing for Entity)
Address:
--------------------------
-----------------------------------
-----------------------------------
Telephone:
------------------------
Facsimile:
------------------------
Shares Beneficially Owned:
___________ shares of Dallas Common
Stock
___________ shares of Dallas Common
Stock issuable upon the exercise of
outstanding options or warrants
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Dal-Tile International Inc., a
Delaware corporation ("DALLAS"), does hereby irrevocably (to the fullest
extent permitted by law) appoint ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ and
each of them, as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, to vote and
exercise all voting and related rights (to the full extent that the
undersigned is entitled to do so) with respect to all of the shares of capital
stock and any other voting securities of Dallas that now are or hereafter may
be beneficially owned by the undersigned, and any and all other shares of
capital stock or other voting securities of Dallas issued or issuable in
respect thereof on or after the date hereof (collectively, the "SHARES") in
accordance with the terms of this Irrevocable Proxy. The Shares beneficially
owned by the undersigned stockholder of Dallas as of the date of this
Irrevocable Proxy are listed on the final page of this Irrevocable Proxy.
Upon the undersigned's execution of this Irrevocable Proxy, any and all prior
proxies given by the undersigned with respect to any Shares are hereby revoked
and the undersigned agrees not to grant any subsequent proxies with respect to
the Shares until after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the fullest extent
permitted by applicable law), is coupled with an interest and is granted
pursuant to that certain Voting Agreement of even date herewith by and among
Mohawk Industries Inc., a Delaware corporation ("MAVERICK"), and the
undersigned stockholder (the "VOTING AGREEMENT"), and is granted in
consideration of Dallas entering into that certain Agreement and Plan of
Merger (the "MERGER AGREEMENT"), by and among Maverick, a wholly owned
subsidiary of Maverick ("MAVERICK SUB") and Dallas. The Merger Agreement
provides for the merger (the "MERGER") of Dallas with and into Maverick Sub in
accordance with its terms. As used herein, the term "EXPIRATION DATE" shall
mean the earlier to occur of (i) such date and time as the Merger Agreement
shall have been validly terminated by either Maverick or Dallas pursuant to
Article 10 thereof, and (ii) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Merger Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to vote the
Shares, and to exercise all voting, consent and similar rights of the
undersigned with respect to the Shares (including, without limitation, the
power to execute and deliver written consents) at every annual, special,
postponed or adjourned meeting of stockholders of Dallas, and in every written
consent in lieu of such meeting, as and to the extent provided in Section 3 of
the Voting Agreement.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The
undersigned stockholder may vote the Shares on all other matters.
A-1
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned. The undersigned is executing this
Irrevocable Proxy only in its capacity as a stockholder. Such signature in no
way affects its obligations as an officer or director of Dallas.
This Irrevocable Proxy is coupled with an interest and is irrevocable
(to the fullest extent permitted by applicable law). This Irrevocable Proxy
shall terminate, and be of no further force and effect, automatically upon the
Expiration Date.
Dated: November 19, 2001
By:
------------------------------
(Signature)
Name:
----------------------------
(Print Name)
Title:
---------------------------
(If Signing for Entity)
Shares Beneficially Owned:
___________ shares of Dallas Common
Stock
___________ shares of Dallas Common
Stock issuable upon the exercise of
outstanding options or warrants
A-2
SCHEDULE A
The following table identifies the ten persons who have executed Voting
Agreements in favor of Mohawk Industries, Inc.:
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NAME TITLE NUMBER OF SHARES NUMBER OF OPTIONS
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Director 13,517 0
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Director 6,317 0
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Vice President, 8,000 239,856
Manufacturing
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▇▇▇▇▇▇▇ ▇. ▇▇▇ Director 299,325 0
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Director 32,794 311,000
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▇▇▇▇ ▇. ▇▇▇▇▇ Vice President, General Counsel 10,000 188,000
and Secretary
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W. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Executive Vice President and 30,658 640,000
Chief Financial Officer
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Chairman and Chief Executive 91,481 7,423,000
Officer
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ General Partner, ▇▇▇▇▇▇ Limited, 230,000 0
LLP
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇ Trustee, Jacques and ▇▇▇▇▇▇▇ 113,840 0
Sardas 1998 Irrevocable Trust
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TOTALS: 835,932 8,562,000
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