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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
CMC INDUSTRIES, INC.
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(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
125708107
(CUSIP Number)
DAVID S. LEE, CHAIRMAN OF THE BOARD
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4950 PATRICK HENRY DRIVE
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SANTA CLARA, CALIFORNIA 95054
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(408) 982-9999
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
May 10, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box. [ ]
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7(b) for
other parties to whom copies are to be sent.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
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CUSIP NO. 125708107 PAGE 2 OF 7 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
David S. Lee
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [X]
N/A
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [ ]
N/A
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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7 SOLE VOTING POWER
N/A
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NUMBER OF 8 SHARED VOTING POWER
SHARES 1,460,862
BENEFICIALLY ------------------------------------------------------------
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,460,862
PERSON ------------------------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
N/A
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,460,862
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
19.0% (1)
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(1) Based upon 7,681,798 outstanding shares of CMC Common Stock as of May
10, 1999.
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SCHEDULE 13D
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CUSIP NO. 125708107 PAGE 3 OF 7 PAGES
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The shares of CMC Common Stock as to which David S. Lee (the "Reporting Person")
reports beneficial ownership (the "Securities") have become subject to a Voting
Agreement entered into between the Reporting Person and ACT Manufacturing, Inc.,
a Massachusetts corporation ("ACT") pursuant to which the Reporting Person has
agreed to vote the Securities in favor of the transactions contemplated in the
Agreement and Plan of Merger and Reorganization dated May 10, 1999, between ACT,
CMC and a wholly-owned subsidiary of ACT. As a result of entering into the
Voting Agreement, the Reporting Person may be deemed to have formed a group with
ACT for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Rule 13d-5(b)(1) thereunder. The Reporting
Person expressly declares that the filing of this statement shall not be
construed as an admission, for purposes of the Act, that it has formed any such
group.
ITEM 1. SECURITY AND ISSUER.
This statement on Schedule 13D relates to the Common Stock of CMC. The
principal executive offices of CMC are located at 4950 Patrick Henry
Drive, Santa Clara, CA 95054.
ITEM 2. IDENTITY AND BACKGROUND.
The Reporting Person filing this statement is David S. Lee, an
individual. Mr. Lee is Chairman of the Board of CMC, a corporation that
engages in contract manufacturing services in the electronics industry.
The business address of Mr. Lee is CMC, 4950 Patrick Henry Drive, Santa
Clara, California 95054.
Mr. Lee is not required to disclose legal proceedings pursuant to Items
2(d) or 2(e).
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The Reporting Person used his own funds to acquire the Securities.
ITEM 4. PURPOSE OF TRANSACTION.
(a) - (b) The Reporting Person acquired the Securities for investment
purposes. This Statement on Schedule 13D is made in connection with an
Agreement and Plan of Merger and Reorganization dated May 10, 1999, (the
"Merger Agreement"), among ACT, East Acquisition Corp., a Delaware
corporation and wholly-owned subsidiary of ACT ("Merger Sub") and CMC,
providing for the merger of Merger Sub with and into CMC, whereby CMC
will be the surviving corporation and will become a wholly-owned
subsidiary of ACT (such events constituting the "Merger"). In the
Merger, each share of CMC Common Stock will be exchanged for .5 shares
of ACT Common Stock. The Merger is subject to the approval by the
stockholders of ACT and CMC, the expiration of the applicable waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and any other
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SCHEDULE 13D
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CUSIP NO. 125708107 PAGE 4 OF 7 PAGES
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required regulatory approvals, and the satisfaction or waiver of certain
other conditions as more fully described in the Merger Agreement. The
foregoing summary of the Merger is qualified in its entirety by
reference to the copy of the Merger Agreement included as Exhibit 1 to
this Schedule 13D and incorporated herein in its entirety by reference.
As an inducement for ACT to enter into the Merger Agreement and in
consideration thereof, the Reporting Person and certain other
stockholders of CMC (the "Stockholders") entered into Voting Agreements
with ACT, dated as of May 10, 1999. Pursuant to the Voting Agreements,
the Stockholders agreed to vote all of the shares of CMC capital stock
owned by them (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. In addition, each Stockholder has, by executing a Voting
Agreement, agreed to execute and deliver to ACT within five days of
ACT's written request therefor a valid and binding irrevocable proxy
granting ACT or its designees the authority to vote their Shares of CMC
capital stock in accordance with the preceding sentence. The covenants
to vote the Shares and grant a proxy terminate upon such date and time
as the Merger shall become effective, and the Voting Agreements
terminate in all respects upon termination of the Merger Agreement.
The purpose of the transactions under the Voting Agreements are to
enable CMC and ACT to consummate the transactions contemplated under the
Merger Agreement.
(c) Not applicable.
(d) It is anticipated that upon consummation of the Merger, the
directors of the Surviving Corporation shall be the current directors of
Merger Sub. It is anticipated that the initial officers of the Surviving
Corporation shall be the officers of Merger Sub, until their respective
successors are duly elected or appointed and qualified.
(e) Other than as a result of the Merger described in Item 3 above,
not applicable.
(f) Not applicable.
(g) Upon consummation of the Merger, the Certificate of
Incorporation of Merger Sub as in effect immediately prior to the
Merger, shall be the Certificate of Incorporation of the Surviving
Corporation until thereafter amended as provided by Delaware Law and
such Certificate of Incorporation. Upon consummation of the Merger, the
Bylaws of Merger Sub, as in effect immediately prior to the Merger,
shall be the Bylaws of the Surviving Corporation until thereafter
amended.
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SCHEDULE 13D
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CUSIP NO. 125708107 PAGE 5 OF 7 PAGES
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(h) - (i) If the Merger is consummated as planned, the CMC Common Stock
will be deregistered under the Act and delisted from The Nasdaq National
Market.
(j) Not applicable
References to, and descriptions of, the Merger Agreement and the Voting
Agreements as set forth above in this Item are qualified in their
entirety by reference to the copies of the Merger Agreement and the form
of Voting Agreement signed by the Reporting Person, respectively,
included as Exhibits 1 and 2, respectively, to this Schedule 13D, which
are incorporated in this Item 4 in their entirety where such references
and descriptions appear.
ITEM 5. INTEREST IN SECURITIES OF THE ACT.
(a) - (b) Mr. Lee is the beneficial owner of 1,460,862 shares of
Common Stock of CMC, constituting approximately 19.0% of the issued and
outstanding CMC Common Stock. Such figure includes (i) 1,321,947 shares
held directly; (ii) 121,000 shares by Mr. Lee's wife, Chi Ming Lee, and
(iii) 17,915 shares issuable to Mr. Lee pursuant to options exercisable
within sixty days of May 10, 1999. The Reporting Person has sole power
to vote or direct the vote (except as described in Item 4) and sole
power to dispose of or direct the disposition of the Securities.
(c) There have been no transactions by the Reporting Person in
shares of CMC Common Stock during the past sixty days.
(d) Not applicable.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDING OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Other than the Merger Agreement and the exhibits thereto, including the
Voting Agreements, to the knowledge of CMC, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) among
the persons named in Item 2 and between such persons and any person with
respect to any securities of ACT.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
The following documents are filed as exhibits:
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SCHEDULE 13D
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CUSIP NO. 125708107 PAGE 6 OF 7 PAGES
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1. Agreement and Plan of Merger and Reorganization, dated May 10,
1999 by and among ACT, Merger Sub, and CMC (incorporated by
reference to exhibits to the Report on Form 8-K filed by ACT
Manufacturing, Inc. on May 14, 1999).
2. Voting Agreement, dated May 10, 1999, between ACT, East
Acquisition Corp. and David S. Lee.
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SCHEDULE 13D
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CUSIP NO. 125708107 PAGE 7 OF 7 PAGES
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: May 20, 1999
By:/s/David S. Lee
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David S. Lee
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EXHIBIT 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 grant 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 (ad 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(j) 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
REPRESENTATION 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 Major Stockholder, threatened against
or affecting, the Major Stockholder or any of its respective properties or
assets 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(f) Finders' Fees. There is no investment banker, broker,
finder or other
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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 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(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(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
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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 Modifications. 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 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 ad 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
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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]
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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/John A. Pino
-------------------
John A. Pino
President
EAST ACQUISITION CORP.
By: /s/John A. Pino
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John A. Pino
President
MAJOR STOCKHOLDERS
By: /s/David S. Lee
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(print name of stockholder above)
By:
Name:
Title:
(if applicable)
