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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
July 29, 1999
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Date of report (Date of earliest event reported)
ACT Manufacturing, Inc.
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(Exact name of Registrant as specified in its charter)
Massachusetts 0-25560 04-2777507
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(State or other Jurisdiction of (Commission File Number) (I.R.S. employer
Incorporation or Organization) identification no.)
2 Cabot Road
Hudson, Massachusetts 01749
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(Address of Principal Executive Offices)
(978) 567-4000
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Registrant's telephone number, including area code
Exhibit Index Located on Page 5
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Item 2. Acquisition or Disposition of Assets.
On May 10, 1999, ACT Manufacturing, Inc., a Massachusetts corporation (the
"Registrant"), entered into an Agreement and Plan of Merger and Reorganization
(the "Merger Agreement") providing for the merger (the "Merger") of East
Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of the
Registrant ("Merger Sub") with and into CMC Industries, Inc., a Delaware
Corporation ("CMC"). The Merger was effected on July 29, 1999 (the "Effective
Time"), pursuant to a Certificate of Merger filed with the Secretary of State of
the State of Delaware on that date. Pursuant to the Merger Agreement, at the
effective time of the Merger, each issued and outstanding share of the common
stock, par value $.01 per share, of CMC (the "CMC Common Stock"), other than
shares held in the treasury of CMC or owned by the Registrant, Merger Sub or any
direct or indirect wholly-owned subsidiary of the Registrant or CMC, was
converted into the right to receive 0.50 of a share (the "Exchange Ratio") of
the common stock, par value $.01 per share, of the Registrant (the "Registrant
Common Stock"), and each outstanding option or right to purchase CMC Common
Stock under CMC's Amended and Restated 1990 Equity Incentive Plan was assumed by
the Registrant and became an option or right to purchase Registrant Common
Stock, with appropriate adjustments made to the number of shares issuable
thereunder and the exercise price thereof based on the exchange ratio. Thus,
ACT will issue an aggregate of 7,770,384 shares of Registrant Common Stock
and reserve for future issuance under CMC's Amended and Restated 1990 Equity
Incentive Plan 932,443 shares of Registrant Common Stock.
The Merger is intended to be a tax-free reorganization under Section 368(a)
of the Internal Revenue Code of 1986, as amended, and is intended to be treated
as a pooling of interests for financial reporting purposes in accordance with
generally accepted accounting principles. The assets of CMC were used, prior to
the Effective Time of the Merger, to provide electronics manufacturing services
to a diverse base of customers in the telecommunications and computer
electronics industry, a use which the Registrant intends to continue immediately
following the Merger.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
The following financial statements and exhibits are filed as part of this
report, where indicated:
(a) Financial statements of the business acquired, prepared pursuant to Rule
3.05 of Regulation S-X are incorporated herein by reference to the
Registrant's Registration Statement on Form S-4 (File No. 333-81367)
filed with the Securities and Exchange Commission on June 23, 1999.
(b) Pro forma financial information required pursuant to Article 11 of
Regulation S-X is incorporated herein by reference to the Registrant's
Registration Statement on Form S-4 (File No. 333-81367) filed with the
Securities and Exchange Commision on June 23, 1999.
(c) Exhibits.
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Exhibit No. Description
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2.1 Agreement and Plan of Merger and Reorganization dated May 10, 1999,
by and among ACT Manufacturing, Inc., East Acquisition Corp. and CMC
Industries, Inc. (incorporated herein by reference to the exhibits
to the Registrant's Registration Statement on Form S-4 (File No.
333-81367) filed with the Securities and Exchange Commission on June
23, 1999)
2.2 Certificate of Merger filed by the Registrant with the Secretary of
State of the State of Delaware, dated July 29, 1999
3.1 Articles of Amendment to the Second Restated Articles of
Organization of the Registrant
23.1 Consent of PricewaterhouseCoopers, LLP
99.1 Press Release dated July 29, 1999
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ACT Manufacturing, Inc.
Date: July 30, 1999 By: /s/ Jeffrey B. Lavin
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Jeffrey B. Lavin
Vice President of Finance,
Chief Financial Officer, Treasurer
and Clerk
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EXHIBIT INDEX
Exhibit No. Description
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2.1 Agreement and Plan of Merger and Reorganization dated May 10, 1999, by
and among ACT Manufacturing, Inc., East Acquisition Corp. and CMC
Industries, Inc. (incorporated herein by reference to the exhibits to
the Registrant's Registration Statement on Form S-4 (File No. 333-
81367) filed with the Securities and Exchange Commission on June 23,
1999)
2.2+ Certificate of Merger filed by the Registrant with the Secretary of
State of the State of Delaware, dated July 29, 1999
3.1+ Articles of Amendment to the Second Restated Articles of Organization
of the Registrant
23.1+ Consent of PricewaterhouseCoopers, LLP
99.1+ Press Release dated July 29, 1999
__________
+ filed herewith
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Exhibit 2.2
CERTIFICATE OF MERGER
MERGING
EAST ACQUISITION CORP.
WITH AND INTO
CMC INDUSTRIES, INC.
_______________________________________
Pursuant to Section 251 of the General Corporation Law of
the State of Delaware
_______________________________________
East Acquisition Corp., a Delaware corporation ("Merger Sub"), and CMC
Industries, Inc., a Delaware corporation ("Target"), DO HEREBY CERTIFY AS
FOLLOWS:
FIRST: That Merger Sub was incorporated on May 6, 1999, pursuant to the
Delaware General Corporation Law (the "Delaware Law"), and that Target was
incorporated on May 23, 1990, under the name "Cortelco Acquisition Corporation",
pursuant to the Delaware Law.
SECOND: That an Agreement and Plan of Merger and Reorganization (the
"Merger Agreement"), dated as of May 10, 1999, among ACT Manufacturing, Inc., a
Massachusetts corporation, Merger Sub and Target, setting forth the terms and
conditions of the merger of Merger Sub with and into Target (the "Merger"), has
been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with Section 251(c) of the Delaware Law.
THIRD: That the name of the surviving corporation (the "Surviving
Corporation") shall be CMC Industries, Inc., a Delaware corporation.
FOURTH: That pursuant to the Merger Agreement, the Certificate of
Incorporation of the Surviving Corporation shall be amended and restated as
attached hereto as Exhibit A.
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FIFTH: That an executed copy of the Merger Agreement is on file at the
principal place of business of the Surviving Corporation at the following
address:
CMC Industries, Inc.
4950 Patrick Henry Drive
Santa Clara, California 95054
SIXTH: That a copy of the Merger Agreement will be furnished by the
Surviving Corporation, on request and without cost, to any stockholder of any
constituent corporation.
SEVENTH: That the Merger shall become effective upon the filing of this
Certificate of Merger with the Secretary of State of the State of Delaware.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF: each of Merger Sub and Target has caused this
Certificate of Merger to be executed in its corporate name this 29th day of
July, 1999.
EAST ACQUISITION CORP.
By: /s/ John A. Pino
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John A. Pino, President
CMC INDUSTRIES, INC.
By: /s/ Matthew G. Landa
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Matthew G. Landa,
President and
Chief Executive Officer
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CMC INDUSTRIES, INC.
******
FIRST. The name of the corporation is CMC Industries, Inc. (the
"Corporation").
SECOND. The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, in the City of Wilmington, New Castle
County, Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or
promoted by the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH. The total number of shares of stock which the Corporation shall
have authority to issue is 1,000 shares of Common Stock, $.01 par value per
share.
FIFTH. The Corporation is to have perpetual existence.
SIXTH. In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware:
A. The Board of Directors of the Corporation is expressly authorized to
adopt, amend or repeal the By-laws of the Corporation.
B. Elections of Directors need not be by written ballot unless the
By-laws of the Corporation shall so provide.
C. The books of the Corporation may be kept at such place within or
without the State of Delaware as the By-laws of the Corporation may provide or
as may be designated from time to time by the Board of Directors of the
Corporation.
SEVENTH. The Corporation eliminates the personal liability of each
member of its Board of Directors to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided, however,
that, to the extent provided by applicable law, the foregoing shall not
eliminate the liability of a director (i) for any breach of such director's duty
of loyalty to the Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of Title 8 of the Delaware Code or (iv) for any
transaction from which such director derived an improper personal benefit. No
amendment to or repeal of this provision shall apply to or have any effect on
the liability or alleged liability of any director for or with respect to any
acts or omissions of such director occurring prior to such amendment or repeal.
EIGHTH. The Corporation reserves the right to amend or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon a stockholder
herein are granted subject to this reservation.
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Exhibit 3.1
One Ashburton Place, Boston, Massachusetts 02108-1512
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
We, John A. Pino , *
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President
and Jeffrey B. Lavin , * Clerk
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of ACT Manufacturing, Inc. ,
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(Exact name of corporation)
located at: 2 Cabot Road, Hudson, MA 01749
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(Street address of corporation in Massachusetts)
certify that these Articles of Amendment affecting articles numbered:
3
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(Number those articles 1, 2, 3, 4, 5, and/or 6 being amended)
of the Articles of Organization were duly adopted at a meeting held on July 29,
1999, by vote of:
7,821,702 shares of Common Stock, $.01 par value of 9,091,600 shares
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outstanding
(type, class & series, if any)
shares of of shares
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outstanding
(type, class & series, if any)
shares of of shares
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outstanding
(type, class & series, if any)
1**being at least a majority of each type, class or series outstanding and
entitled to vote thereon
*Delete the inapplicable words. ** Delete the inapplicable clause.
1For amendments adopted pursuant to Chapter 156B, Section 70.
2For amendments adopted pursuant to Chapter 156B, Section 71.
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Note: If the space provided under any article or item on this form is
insufficient, additions shall be set forth on one side only of separate 8 1/2 x
11 sheets of paper with a left margin of at least 1 inch. Additions to more
than one article may be made on a single sheet so long as each article
requiring each addition is clearly indicated.
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To change the number of shares and the par value (if any) of any type, class or
series of stock which the corporation is authorized to issue, fill in the
following:
The total presently authorized is:
<TABLE>
<CAPTION>
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
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TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
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<S> <C> <C> <C> <C>
Common: 0 Common: 30,000,000 $.01
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Preferred: 0 Preferred: 5,000,000 $.01
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</TABLE>
Change the total authorized to:
<TABLE>
<CAPTION>
WITHOUT PAR VALUE STOCKS WITH PAR VALUE STOCKS
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TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
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<S> <C> <C> <C> <C>
Common: 0 Common: 50,000,000 $.01
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- --------------------------------------------------------------------------------------------------------
Preferred: 0 Preferred: 5,000,000 $.01
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</TABLE>
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The foregoing amendment(s) will become effective when these Articles of
Amendment are filed in accordance with General Laws, Chapter 156B, Section 6
unless these articles specify, in accordance with the vote adopting the
amendment, a later effective date not more than thirty days after such filing,
in which event the amendment will become effective on such later date.
Later effective date:
SIGNED UNDER THE PENALTIES OF PERJURY, this 29th day of July , 1999 .
/s/ John A. Pino , *President
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/s/ Jeffrey Lavin , *Clerk
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*Delete the inapplicable words.
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THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF AMENDMENT
(General Laws, Chapter 156B, Section 72)
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I hereby approve the within Articles of Amendment, and the filing fee
in the amount of $20,000 having been paid, said article is deemed
to have been filed with me this 29th day of July 1999.
Effective date: July 29,1999
______________________________________________________________________
/s/ William Francis Galvin
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF DOCUMENT TO BE SENT TO:
Kelly R. Whiting, Esq.
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Testa, Hurwitz & Thibeault, LLP
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High Street Tower
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125 High Street
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Boston, MA 02110
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-4 (File No. 333-81367) of ACT Manufacturing, Inc. of our
report dated August 21, 1998, except as to Note 14, which is as of October 9,
1998, relating to the financial statements of CMC Industries, Inc., which
appears in the Current Report on Form 8-K of ACT Manufacturing, Inc. dated July
29, 1999.
PRICEWATERHOUSECOOPERS LLP
MEMPHIS, TENNESSEE
JULY 28, 1999
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Exhibit 99.1
[press release]
