Exhibit 99.2
WEST VOTING AGREEMENT
This WEST Voting Agreement dated as of May 10, 1999 (the "Agreement") by
and among ACT Manufacturing, Inc., a Massachusetts corporation ("EAST"), EAST
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of EAST
("Merger Sub"), and the stockholders who are signatories hereto (the "Major
Stockholders") of CMC Industries, Inc., a Delaware corporation ("WEST").
Capitalized terms not defined herein have the meanings assigned to them in the
Agreement and Plan of Merger and Reorganization (the "Merger Agreement") dated
the date hereof by and among EAST, Merger Sub and WEST.
WITNESSETH:
WHEREAS, pursuant to the Merger Agreement, Merger Sub will merge with and
into WEST (the "Merger"), with WEST continuing as the surviving corporation and
as a wholly owned subsidiary of EAST, on the terms and conditions set forth
therein; and
WHEREAS, to induce EAST to enter into the Merger Agreement, each of the
Major Stockholders, as principal stockholders of WEST, has agreed to enter into
this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, provisions and covenants contained in this Agreement, the parties
hereby agree as follows:
ARTICLE I
COVENANTS
1.1 Covenants and Agreements. Each of the Major Stockholders hereby
covenants and agrees with EAST and Merger Sub as follows:
1.1(a) Cooperation. It shall cooperate fully with WEST, EAST and
Merger Sub in furnishing any information or performing any action reasonably
requested by any such party, which information or action is necessary or
appropriate for the efficient and successful consummation of the transactions
contemplated by the Merger Agreement. It shall use commercially reasonable
efforts to cause the Closing to occur at the earliest practical time.
1.1(b) Other Required Information. It shall furnish to WEST, EAST
and Merger Sub all information concerning itself and its subsidiaries and
affiliates, if applicable, as is required to be set forth in any application or
statement to be filed with any Governmental Entity in connection with the
transactions contemplated by the Merger Agreement or otherwise.
1.1(c) Publicity. Except as otherwise required by applicable law or
stock exchange or securities market regulations, it shall not issue any press
release or make any other public statement concerning the Merger without
obtaining the prior approval of EAST to the contents and the manner of
presentation and publication thereof.
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1.1(d) Restriction on Sales of WEST Common Stock and EAST Common
Stock. It agrees to comply with the restrictions on transfer of shares of WEST
Common Stock or EAST Common Stock set forth in that certain WEST Affiliate
Agreement of even date herewith. Notwithstanding that it may be permitted to
transfer shares of WEST Common Stock or EAST Common Stock in accordance with the
terms of the WEST Affiliate Agreement, it agrees not to transfer any such shares
unless each transferee to which any such shares, or any interest in any such
shares, is or may be transferred shall have executed a counterpart of this
Agreement and agreed in writing to hold such shares (or interest in such shares)
subject to all of the terms and provisions of this Agreement.
1.1(e) Other Negotiations. It agrees to fully comply with the
provisions of Section 4.03 (No Solicitation) of the Merger Agreement.
1.1(f) Agreement to Vote Shares. At every meeting of the
stockholders of WEST held on or prior to the Expiration Date, and at every
adjournment thereof, and on every action or approval by written consent of the
stockholders of WEST, it shall vote all shares of WEST capital stock owned by
it: (i) in favor of approval and adoption of the Merger Agreement and the Merger
and any matter that could reasonably be expected to facilitate the Merger and
(ii) against approval of any proposal made in opposition to or competition with
consummation of the Merger (an "Opposing Proposal"). "Expiration Date" shall
mean the earlier of (i) such time as the Merger shall become effective in
accordance with the terms and provisions of the Merger Agreement and (ii) such
time as the Merger Agreement shall have been terminated pursuant to Article VII
thereof.
1.1(g) Agreement to Grant Proxy. It shall execute and deliver to
EAST within five days of EAST's written request therefor a valid and binding
irrevocable proxy in any form reasonably proposed by EAST granting EAST (or its
designees) the authority to vote its shares of capital stock of WEST in
accordance with and subject to the limitations of Section 1.1(f).
1.1(h) No Proxy Solicitations. Except as required by law, including,
if applicable, actions which it determines after consultation with counsel are
required pursuant to its fiduciary duties as a Director (as defined below) under
applicable law, it shall not, and will not permit any person under its control
to: (i) solicit proxies or become a "participant" in a "solicitation" (as such
terms are defined in Regulation 14A under the Exchange Act) with respect to an
Opposing Proposal; or (ii) initiate a stockholders' vote or action by consent of
WEST stockholders with respect to an Opposing Proposal.
1.1(i) Obligations as Director and/or Officer. If at any time prior
to the expiration of this Agreement, the Major Stockholder or a representative
of the Major Stockholder is also a member of the Board of Directors of WEST
("Director") or an officer of WEST, nothing in this Agreement shall limit or
restrict the Director or officer in acting in his or her capacity as a Director
or officer, as the case may be, of WEST and exercising his or her fiduciary
duties and responsibilities, it being agreed and understood that this Agreement
shall apply to the Major Stockholder solely in its capacity as a stockholder and
shall not apply to the Director's or officer's actions, judgments or decisions
as a Director or officer of WEST.
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1.1(j) No Proxies. It agrees not to grant any proxies (except
pursuant to Section 1.1(g) of this Agreement) or to enter into any agreement
(other than this Agreement) with respect to the voting of shares of WEST Common
Stock held by it that are inconsistent with or in conflict with the intent of
this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of Major Stockholders. Each of the
Major Stockholders hereby represents and warrants to EAST and Merger Sub as
follows:
2.1(a) Existence and Power. If the Major Stockholder is a
corporation, partnership, limited liability company or trust, it is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization.
2.1(b) Authorization; Binding Agreement. The execution, delivery and
performance by the Major Stockholder, if it is a corporation, partnership,
limited liability company or trust, of this Agreement are within its corporate,
partnership, limited liability company or trust power and authority and have
been duly authorized by all necessary corporate, partnership, limited liability
company or trust action on the part of the Major Stockholder. This Agreement has
been duly executed and delivered by the Major Stockholder and constitutes a
valid and binding agreement of the Major Stockholder, enforceable against the
Major Stockholder in accordance with its terms.
2.1(c) Governmental Authorization. The execution, delivery and
performance by it of this Agreement does not require any action on its part by
or in respect of, or declaration, filing or registration with, any Governmental
Entity.
2.1(d) Non-Contravention. The execution, delivery and performance by
it of this Agreement does not and will not (i) if it is a corporation,
partnership, limited liability company or trust, contravene or conflict with its
organizational documents, or (ii) to its knowledge, contravene or conflict with
or constitute a violation of any provision of any law, regulation, judgment,
injunction, order or decree binding upon or applicable to it.
2.1(e) Litigation. There is no action, suit, investigation or
proceeding (or to the knowledge of the Major Stockholder any basis therefor)
pending against or, to the knowledge of the Major Stockholder, threatened
against or affecting, the Major Stockholder or any of its respective properties
or assets before any court or aribitrator or any governmental body, agency,
official or authority that in any manner challenges or seeks to prevent, enjoin,
alter or materially delay the transactions contemplated by this Agreement or the
Merger Agreement.
2.1(f) Finders' Fees. There is no investment banker, broker, finder
or other intermediary that has been retained by or is authorized to act on
behalf of the Major Stockholder who might be entitled to any fee or commission
from EAST, Merger Sub, WEST or any of their
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affiliates upon consummation of the transactions contemplated by this Agreement
or the Merger Agreement.
2.1(g) Ownership of Stock. The Major Stockholder is the record and
beneficial owner of the shares of WEST Common Stock set forth in the WEST
Affiliate Agreement, and owns all such shares free and clear of any and all
liens, pledges, charges, security interests, restrictions or encumbrances of any
kind or any rights of first refusal (other than in favor of WEST), voting
trusts, proxies or other arrangements or understandings, whether written or
oral, and the Major Stockholder has the sole and exclusive right and power to
exercise all voting rights and other rights with respect to such shares.
ARTICLE III
MISCELLANEOUS
3.1 Survival; Termination.
3.1(a) All representations and warranties in this Agreement shall
survive the Closing. Any investigation or other examination that may have been
made or may be made at any time by or on behalf of the party to whom
representations and warranties are made shall not limit, diminish or in any way
affect the representations and warranties in this Agreement, and the parties may
rely on the representations and warranties in this Agreement irrespective of any
information obtained by them by any investigation, examination or otherwise.
3.1(b) The covenants contained in Sections 1.1(a), 1.1(b), 1.1(c),
1.1(e), 1.1(f), 1.1(g) and 1.1(h) (but not any liability for any willful breach
thereof) shall terminate at the Effective Time. All other covenants contained in
this Agreement shall survive the Merger.
3.1(c) This Agreement shall terminate in all respects upon
termination of the Merger Agreement (but not any liability for any willful
breach hereof).
3.2 Specific Performance. Each of the parties to this Agreement hereby
acknowledges that the other party will have no adequate remedy at law if it
fails to perform any of its obligations under this Agreement. In such event,
each of the parties agrees that the other party shall have the right, in
addition to any other rights it may have (whether at law or in equity), to
specific performance of this Agreement.
3.3 Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective successors and permitted assigns of the parties hereto. Nothing
expressed or implied in this Agreement is intended or shall be construed to
confer upon or give any person, firm or corporation other than the parties
hereto, their permitted successors or assigns, and their respective stockholders
any rights or remedies under or by reason of this Agreement or any transaction
contemplated hereby.
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3.4 Entire Agreement. This Agreement and the Merger Agreement (together
with the Exhibits and Schedules thereto and the other documents delivered
pursuant thereto) constitute the entire agreement between the parties and
supersede all prior agreements and understandings, both written and oral,
between the parties, or any of them, with respect to the subject matter hereof.
3.5 Amendment or Modification. At any time before or after the adoption of
the Merger Agreement by the stockholders of WEST or the approval of the
proposals contained in the Proxy Statement by the stockholders of EAST and WEST,
this Agreement may be amended or supplemented by additional agreements, articles
or certificates, in writing, as may be determined by the parties hereto to be
necessary, desirable or expedient to further the purposes of this Agreement, or
to clarify the intention of the parties hereto, or to add to or to modify the
covenants, terms or conditions hereof or to effect or facilitate any
governmental approval or acceptance of the Merger or of this Agreement or to
effect or facilitate the filing or recording of the Agreement or the
consummation of any of the transactions contemplated hereby or thereby.
3.6 No Waiver. The failure of any party hereto to enforce at any time any
of the provisions of this Agreement shall in no way be construed to be a waiver
of any such provision, nor in any way to affect the validity of this Agreement
or any part hereof or the right of such party thereafter to enforce each and
every such provision. No waiver of any breach of or non-compliance with this
Agreement shall be held to be a waiver of any other or subsequent breach or
non-compliance.
3.7 Assignability. This Agreement shall not be assignable by the Major
Stockholder, on the one hand, or EAST or Merger Sub, on the other hand, without
the prior written consent of EAST or Merger Sub, on the one hand, or the Major
Stockholder, on the other hand.
3.8 Headings and Interpretation. The headings contained in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement. Terms such as "herein", "hereof",
"hereinafter" refer to this Agreement as a whole and not to the particular
sentence or paragraph where they appear, unless the context otherwise requires.
Unless the context otherwise requires, (i) terms used in the plural include the
singular, and vice versa, (ii) words in the masculine gender include the
feminine, and vice versa and (iii) the word "it" includes references to natural
persons.
3.9 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given when received at the addresses set forth in the Merger
Agreement, in the case of EAST and Merger Sub, and the books and records of
WEST, in the case of the Major Stockholder, or to such other address as any
party may have furnished to the others in writing in accordance herewith, except
that notices of change of address shall only be effective upon receipt.
3.10 Law Governing. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
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3.11 Invalidity of Provisions. Each of the provisions contained in this
Agreement is distinct and severable and a declaration of invalidity or
unenforceability of any such provision or part thereof by a court of competent
jurisdiction shall not affect the validity or enforceability of any other
provision hereof.
3.12 Counterparts. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties on the date first above written.
ACT MANUFACTURING, INC.
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
President
EAST ACQUISITION CORP.
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
President
MAJOR STOCKHOLDERS
/s/ Xxxxx X. Xxx
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Xxxxx X. Xxx
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxxxxxxx Xxxxx
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Xxxxxxxxx Xxxxx
/s/ M. Xxxxxxx Xxxxxx
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M. Xxxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
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/s/ Xxx Xxxxx
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Xxx Xxxxx
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
/s/ Xxxx O'Rear
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Xxxx O'Rear
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
