ex49-descriptionofregist






  EXHIBIT 4.9    DESCRIPTION OF THE REGISTRANT’S SECURITIES  REGISTERED PURSUANT TO SECTION 12 OF THE  SECURITIES EXCHANGE ACT OF 1934     As of December 31, 2021, Mohawk Industries, Inc. (the “Company,” “us,” “we,” or “our”) had one class of  securities, our common stock, par value $0.01 per share, registered under Section 12 of the Securities Exchange Act  of 1934, as amended.    Description of Common Stock    The following description of our common stock is a summary and does not purport to be complete. It is  subject to and qualified in its entirety by reference to our restated certificate of incorporation, as amended (our  “certificate of incorporation”), and our restated bylaws (our “bylaws”), which are filed as exhibits to our Annual  Report on Form 10-K and are incorporated by reference herein, as well as the applicable provisions of the Delaware  General Corporation Law. We encourage you to carefully review our certificate of incorporation, our bylaws and the  applicable provisions of the Delaware General Corporation Law for additional information.    General    The Company is authorized by its certificate of incorporation to issue up to 150,000,000 shares of common  stock, par value $0.01 per share and up to 60,000 shares of preferred stock, par value $0.01 per share. No shares of  preferred stock have been issued by the Company. All outstanding shares of common stock are validly issued, fully  paid and non-assessable.    The rights, preferences and privileges of the holders of our common stock are subject to, and may be adversely  affected by, the rights of the holders of any series of preferred stock that we may designate and issue in the future.    Dividend Rights    Subject to the rights of the holders of our preferred stock (if any), the holders of our common stock have the  right to receive dividends and distributions, whether payable in cash or otherwise, as may be declared from time to  time by our board of directors, from legally available funds. However, the Company has not paid dividends on its  common stock since its initial public offering.    Voting Rights; Classified Board    Each share of our common stock entitles the holder to one vote on all matters submitted to a vote of the  stockholders. Our bylaws require a director to be elected by a majority of votes cast with respect to such director in  uncontested elections. Our certificate of incorporation provides that our board of directors is divided into three classes,  consisting, as nearly as may be possible, of one-third of the total number of directors constituting the entire board of  directors, with each class elected for staggered three-year terms expiring in successive years. To amend, alter or repeal  the provision of our certificate of incorporation related to the classification of the board of directors, our certificate of  incorporation requires the approval of the holders of not less than 80% of the votes entitled to be cast by the holders  of all then outstanding shares of capital stock, voting together as a single class. Our certificate of incorporation does  not provide for cumulative voting for the election of directors.    Liquidation Rights    Subject to the rights of the holders of our preferred stock (if any), in the event of our liquidation, dissolution  or winding-up, holders of our common stock are entitled to share equally in the assets available for distribution after  payment of all creditors.  





 






  No Redemption, Conversion or Preemptive Rights    Holders of our common stock have no redemption rights, conversion rights or preemptive rights to purchase or  subscribe for our securities. There are no redemption provisions or sinking fund provisions applicable to our common  stock.    No Restrictions on Transfer    Neither our certificate of incorporation nor our bylaws contain any restrictions on the transfer of our common  stock. In the case of any transfer of shares, there may be restrictions imposed by applicable securities laws.    Other Rights    Holders of our common stock will not be subject to further calls or assessments by the Company.    Issuance of Common Stock    In certain instances, the issuance of authorized but unissued shares of common stock may have an anti-takeover  effect. The authority of our board of directors to issue additional shares of common stock may help deter or delay a  change of control by increasing the number of shares needed to gain control.    Preferred Stock    Subject to the restrictions prescribed by law, our board of directors is authorized to fix the number of shares  of any series of unissued preferred stock, to determine the designations, preferences, qualifications, limitations,  restrictions and special or relative rights granted to or imposed upon any series of unissued preferred stock (including  dividend rights (which may be cumulative or non-cumulative), voting rights, conversion rights, redemption rights and  terms, sinking fund provisions, liquidation preferences, and any other preferences, qualifications, privileges, options  and other relative or special rights and limitations of that series) and, within any applicable limits and restrictions  established, to increase or decrease the number of shares of such series subsequent to its issue. Before the Company  issues any series of preferred stock, our board will adopt resolutions creating and designating such series as a series  of preferred stock. Stockholders will not need to approve these resolutions. The issuance of preferred stock could  adversely affect the voting and other rights of holders of our common stock and may have the effect of delaying or  preventing a change in control of the Company.    Certain Provisions in our Certificate of Incorporation and Bylaws    The Company’s certificate of incorporation and bylaws contain a number of provisions that may be deemed to  have the effect of discouraging or delaying attempts to gain control of us, including provisions: (i) authorizing the  board to issue preferred stock with rights and privileges, including voting rights, as it may deem appropriate;  (ii) providing the board of directors with the exclusive power to determine the exact number of directors comprising  the entire board, subject to the certificate of incorporation; (iii) authorizing the board of directors or a majority of the  directors then in office or the sole remaining director to fill vacancies in the board; (iv) providing that the board of  directors be divided into three classes; (v) requiring that any action required or permitted to be taken by our  stockholders be taken only at an annual or special meeting and permitting stockholder action by written consent in  lieu of a meeting only if all stockholders entitled to vote consent to the proposed action; (vi) providing that special  meetings of stockholders may be called only by the board of directors or the chairman of the board; (vii) providing  the board of directors with flexibility in scheduling the annual meeting (subject to state law requirements); and  (viii) providing that certain of the provisions of the certificate of incorporation and bylaws may be amended by our  stockholders only by the affirmative vote of at least 80% of the outstanding voting power of all shares entitled to vote.    In addition, the Company’s bylaws establish an advance notice procedure for stockholder proposals to be  brought before a meeting of stockholders and for nominations by stockholders of candidates for election as directors  at an annual meeting or a special meeting at which directors are to be elected. As described more fully in our bylaws,  only such business may be conducted at a meeting of stockholders as has been brought before the meeting by, or at  





 






the direction of, our board of directors, or by a stockholder who has given to the Company’s secretary timely written  notice, in proper form, of the stockholder’s intention to bring that business before the meeting. The presiding officer  at a stockholders’ meeting has the authority to make these determinations. Only persons who are nominated by, or at  the direction of, the board of directors, or who are nominated by a stockholder who has given timely written notice,  in proper form, to the Company’s secretary prior to a meeting at which directors are to be elected will be eligible for  election to the board of directors. In addition to the director nomination process described above, our bylaws permit  any stockholder or group of up to 20 stockholders who have maintained continuous qualifying ownership of 3% or  more of our outstanding common stock for at least the previous three years to include up to a specified number of  director nominees in our proxy materials for an annual meeting. The maximum number of stockholder nominees  permitted under the proxy access provisions of our bylaws is the greater of two or 20% of the total number of directors  serving on the last day on which a notice of proxy access nomination may be submitted; however, so long as the board  is classified, the maximum number of stockholder nominees permitted under the proxy access provisions of the bylaws  shall in no case exceed one-half of the number of directors to be elected at such meeting (rounded down to the nearest  whole number). Stockholders must give timely written notice to the Company’s secretary, in proper form, to include  nominees in the Company’s proxy materials for an annual meeting. With the exception of proxy access, these  provisions could make it more difficult for stockholders to raise matters affecting control of the Company, including  tender offers, business combinations or the election or removal of directors, for a stockholder vote.     Section 203 of the Delaware General Corporation Law    The Company is subject to the provisions of Section 203 of the Delaware General Corporation Law. In general,  Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an  “interested stockholder” for a period of three years after the date of the transaction in which the person became an  interested stockholder, unless the business combination is approved in a prescribed manner. A “business combination”  includes a merger, asset sale or a transaction resulting in a financial benefit to the interested stockholder. An “interested  stockholder” is a person who, together with affiliates and associates, owns (or, in certain cases, within the preceding  three years, did own) 15% or more of the corporation’s outstanding voting stock. Under Section 203, a business  combination between the Company and an interested stockholder is prohibited unless it satisfies one of the following  conditions:    • prior to the stockholder becoming an interested stockholder, the board of directors must have  previously approved either the business combination or the transaction that resulted in the stockholder  becoming an interested stockholder;    •  upon consummation of the transaction that resulted in the stockholder becoming an interested  stockholder, the interested stockholder owned at least 85% of the voting stock of the Company  outstanding at the time the transaction commenced, excluding, for purposes of determining the number  of shares outstanding, shares owned by persons who are directors and officers; or          • the business combination is approved by our board of directors and authorized at an annual or special  meeting of the stockholders by the affirmative vote of at least 66 2/3% of the outstanding voting stock  which is not owned by the interested stockholder.