Exhibit 99.3
EAST VOTING AGREEMENT
This EAST Voting Agreement dated as of May 10, 1999 (the "Agreement") by
and between CMC Industries, Inc., a Delaware corporation ("WEST"), and the
stockholder who is a signatory hereto (the "Major Stockholder") of ACT
Manufacturing, Inc., a Massachusetts corporation ("EAST"). 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, EAST Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of 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 WEST to enter into the Merger Agreement, the Major
Stockholder, as a principal stockholder of EAST, 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. The Major Stockholder hereby covenants and
agrees with WEST as follows:
1.1(a) Cooperation. He 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. He shall use commercially reasonable
efforts to cause the Closing to occur at the earliest practical time.
1.1(b) Other Required Information. He shall furnish to WEST, EAST
and Merger Sub all information concerning himself and his 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, he shall not issue any press
release or make any other public statement concerning the Merger without
obtaining the prior approval of WEST to the contents and the manner of
presentation and publication thereof.
-2-
1.1(d) Restriction on Sales of EAST Common Stock. He agrees to
comply with the restrictions on transfer of shares of EAST Common Stock set
forth in that certain EAST Affiliate Agreement of even date herewith.
Notwithstanding that the Major Stockholder may be permitted to transfer shares
of EAST Common Stock in accordance with the terms of the EAST Affiliate
Agreement, the Major Stockholder 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) Agreement to Vote Shares. At every meeting of the
stockholders of EAST 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 EAST, he shall vote all shares of EAST capital stock owned by
him: (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(f) Agreement to Grant Proxy. He shall execute and deliver to
WEST within five days of WEST's written request therefor a valid and binding
irrevocable proxy in any form reasonably proposed by WEST granting WEST (or its
designees) the authority to vote his shares of capital stock of EAST in
accordance with and subject to the limitation of Section 1.1(e).
1.1(g) No Proxy Solicitations. Except as required by law, including
actions which he determines after consultation with counsel are required
pursuant to his fiduciary duties as a Director (as defined below) under
applicable law, he shall not, and will not permit any person under his 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
EAST stockholders with respect to an Opposing Proposal.
1.1(h) 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 EAST
("Director") or an officer of EAST, nothing in this Agreement shall limit or
restrict the Director or officer in acting in his capacity as a director or
officer, as the case may be, of EAST and exercising his fiduciary duties and
responsibilities, it being agreed and understood that this Agreement shall apply
to the Major Stockholder solely in his 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 EAST.
1.1(i) No Proxies. The Major Stockholder agrees not to grant any
proxies (except pursuant to Section 1.1(f) of this Agreement) or to enter into
any agreement (other than this Agreement) with respect to the voting of shares
of EAST Common Stock held by him that are inconsistent with or in conflict with
the intent of this Agreement.
-3-
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Major Stockholder. The Major
Stockholder hereby represents and warrants to WEST as follows:
2.1(a) Binding Agreement. 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(b) Governmental Authorization. The execution, delivery and
performance by him of this Agreement does not require any action on his part by
or in respect of, or declaration, filing or registration with, any Governmental
Entity.
2.1(c) Non-Contravention. The execution, delivery and performance by
him of this Agreement does not require any acction on his part by or in respect
of, or declaration, filing or registration with, any Governmental Entity.
2.1(d) 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 before any court or arbitrator 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(e) 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, WEST or any of their affiliates upon consummation of the transactions
contemplated by this Agreement or the Merger Agreement.
2.1(f) Ownership of Stock. The Major Stockholder is the record and
beneficial owner of the shares of EAST Common Stock set forth in the 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 EAST), voting trusts,
proxies or other arrangements or understandings, whether written or oral, and
Major Stockholder has the sole and exclusive right and power to exercise all
voting rights and other rights with respect to such shares.
-4-
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), and 1.1(g), (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.
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 EAST 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
-5-
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 WEST, on the
one hand, or the Major Stockholder, on the other hand, without the prior written
consent of the Major Stockholder, on the one hand, or WEST, 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 WEST, and the books and records of EAST, 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.
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.
[Remainder of page intentionally left blank]
-6-
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties on the date first above written.
CMC INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
MAJOR STOCKHOLDER
/s/ Xxxx X. Xxxx
--------------------------------------
Xxxx X. Xxxx
XXXX X. XXXX GRANTOR RETAINED
ANNUITY TRUST II DATED
AUGUST 16, 1996
By: /s/ Xxxx X. Xxxx
----------------------------------
Name: Xxxx X. Xxxx
Title: Trustee
1998 XXXX X. XXXX GRANTOR
RETAINED ANNUITY TRUST DATED
JUNE 15, 1998
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Trustee
