1
EXHIBIT 10.2
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of September 15, 1999, is
entered into by and between Photronics, Inc., a Connecticut corporation
("Parent"), and the other party listed on the signature page hereof (the
"Shareholder").
WHEREAS, Parent, AL Acquisition Corp. ("Merger Sub") and Align-Rite
International, Inc. (the "Company"), have entered into an Agreement and Plan of
Merger of even date herewith (the "Merger Agreement"), pursuant to which the
parties thereto have agreed, upon the terms and subject to the conditions set
forth therein, to merge Merger Sub with and into the Company (the "Merger");
WHEREAS, as of the date hereof, the Shareholder is the beneficial owner of
the number of shares (the "Shares") of common stock, par value $.01 per share,
of the Company (the "Company Common Stock") set forth opposite such
Shareholder's name on Schedule I attached hereto; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has required that the Shareholder agree, and the Shareholder
is willing to agree, to the matters set forth herein. Except as specified
herein, terms defined in the Merger Agreement are used herein as defined
therein.
NOW, THEREFORE, in consideration of the foregoing and the agreements set
forth below, the parties hereto agree as follows:
1. Voting of Shares.
1.1. Voting Agreement. The Shareholder hereby agrees to vote (or cause to
be voted) all of the Shares (and any and all securities issued or issuable in
respect thereof) which such Shareholder is entitled to vote (or to provide his
written consent thereto), at any annual, special or other meeting of the
shareholders of the Company, and at any adjournment or adjournments thereof, or
pursuant to any consent in lieu of a meeting or otherwise:
(i) in favor of the Merger and the approval and adoption of the terms
contemplated by the Merger Agreement and any actions required in
furtherance thereof;
(ii) against any action or agreement that could result in a breach of
any covenant, representation or warranty or any other obligation of the
Company under this Agreement or the Merger Agreement; and
2
(iii) against (except as specifically requested or agreed to in
writing by Parent in advance) (A) any extraordinary corporate transaction,
including, without limitation, a merger, consolidation, rights offering,
reorganization, recapitalization or liquidation involving the Company or
any of its Subsidiaries other than the Merger, (B) a sale or transfer of a
material amount of assets of the Company or any of its Subsidiaries or the
issuance of any securities of the Company or any Subsidiary, (C) any change
in the Board of Directors of the Company; (D) any change in the present
capitalization of the Company or any amendment of the Company's articles of
incorporation or by laws; (E) any other material change in the Company's
corporate structure or business; or (F) any action that could impede,
interfere with, delay, postpone or adversely affect in any respect the
Merger and the transactions contemplated by the Merger Agreement.
1.2 Grant of Irrevocable Proxy; Appointment of Proxy. (a)The
Shareholder hereby irrevocably grants to, and appoints, Michael J. Yomazzo and
Jeffrey P. Moonan, in their respective capacities as officers of Parent, any
individual who hereafter shall succeed to any such office of Parent, and each of
them individually, the Shareholder's proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of the Shareholder, to
vote the Shares, or grant a consent or approval in respect of such Shares, in
accordance with Shareholder's covenants in Section 1.1 hereof.
(b) The Shareholder represents that any proxies heretofore given in
respect of the Shares are not irrevocable, and that all such proxies are hereby
revoked.
(c) The Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 1.2 is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. The Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or cause
to be done by virtue hereof.
2. Representations and Warranties of Shareholder. The Shareholder
represents and warrants to Parent as follows:
2.1. Binding Agreement. The Shareholder has the capacity to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. The Shareholder has duly and validly executed and delivered this
Agreement and this Agreement constitutes a legal, valid and binding obligation
of the Shareholder, enforceable against the Shareholder in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or
-2-
3
other similar laws affecting creditors' rights generally and by general
equitable principles (regardless of whether enforceability is considered in a
proceeding in equity or at law).
2.2. No Conflict. Neither the execution and delivery of this Agreement
nor the compliance with any of the provisions hereof by the Shareholder (a)
requires any consent, approval, authorization or permit of registration,
declaration or filing (except for filings under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) with, or notification to, any
governmental entity, (b) results in a default (or an event which, with notice or
lapse of time or both, would become a default) or gives rise to any right of
termination by any third party, cancellation, amendment or acceleration under
any contract, agreement, instrument, commitment, arrangement or understanding,
or results in the creation of a security interest, lien, charge, encumbrance,
equity or claim with respect to any of the Shares, (c) requires any consent,
authorization or approval of any person other than a governmental entity which
has not been obtained, or (d) violates or conflicts with any order, writ,
injunction, decree or law applicable to the Shareholder or the Shares.
2.3. Ownership of Shares. The Shareholder is the record and beneficial
owner of the Shares free and clear of any security interests, liens, charges,
encumbrances, options, proxies, voting trusts or agreements or other
understandings, arrangements or other restrictions on the right to vote the
Shares. The Shareholder holds exclusive power to vote the Shares. The Shares
represent all of the shares of capital stock of the Company beneficially owned
by Shareholder entitling Shareholder to vote or give consent with respect to the
matters set forth in Section 1 hereof. For purposes of this Agreement,
"beneficially own" or "beneficially ownership" with respect to any securities
shall mean having "beneficial ownership" of such securities as determined
pursuant to Rule 13d-3 under the Exchange Act and shall include securities
beneficially owned by all other persons with whom Shareholder would constitute a
"group" as discussed in Section 13(d)(3) of the Exchange Act.
3. Representations and Warranties of Parent. Parent represents and
warrants to the Shareholder as follows:
3.1. Binding Agreement. Parent is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Connecticut
and has full corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the Merger Agreement by Parent and the
consummation of the transactions contemplated hereby and thereby have been duly
and validly authorized by the Board of Directors of Parent, and, no other
corporate proceedings on the part of Parent are necessary to authorize the
execution, delivery and performance of this Agreement and the Merger Agreement
by Parent and the consummation of the transactions contemplated thereby. Parent
has duly and validly executed this Agreement
-3-
4
and this Agreement constitutes a legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
by general equitable principles (regardless of whether enforceability is
considered in a proceeding in equity or at law).
3.2. No Conflict. Neither the execution and delivery of this
Agreement, the consummation by Parent of the transactions contemplated hereby,
nor the compliance by Parent with any of the provisions hereof will (a) conflict
with or result in a breach of any provision of its articles of incorporation or
by-laws, (b) require any consent, approval, authorization or permit of,
registration, declaration or filing (except for filings under the Exchange Act)
with, or notification to, any governmental entity, (c) result in a default (or
an event which, with notice or lapse of time or both, would become a default) or
give rise to any right of termination by any third party, cancellation,
amendment or acceleration under any contract, agreement, instrument, commitment,
arrangement or understanding, (d) require any consent, authorization or approval
of any person other than a governmental entity, or (e) violate or conflict with
any order, writ, injunction, decree or law applicable to Parent.
4. Covenants of the Shareholder.
4.1. Certain Prohibited Transfers. The Shareholder agrees not to:
(a) sell, transfer, tender, assign, encumber, pledge or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, tender, assignment,
encumbrance, pledge or other disposition of, the Shares or any interest
therein;
(b) grant any proxies or power of attorney or enter into a voting
agreement or other arrangement with respect to the Shares, other than and
pursuant to this Agreement;
(c) deposit the Shares into a voting trust; or
(d) buy, sell or trade any equity security of Parent including,
without limitation, entering into any put, call, option, swap, collar or
any other derivative transaction which has a similar economic effect.
4.2. Additional Shares. In the event (i) of any stock dividend, stock
split, recapitalization, reclassification, combination or exchange of shares of
capital stock of the Company on, of or affecting the Shares or (ii) the
Shareholder shall become the beneficial owner of any additional shares of
Company Common Stock or other securities entitling the holder thereof to vote or
give consent with respect to the matters set forth in
-4-
5
Section 1 hereof, then the terms of this Agreement shall apply to, and all
references to Shares herein shall include, the shares of capital stock or other
securities of the Company held by the Shareholder immediately following the
effectiveness of the events described in clause (i) or the Shareholder becoming
the beneficial owner thereof, as described in clause (ii), as though they were
Shares hereunder. The Shareholder hereby agrees, while this Agreement is in
effect, to promptly notify Parent of the number of any new shares of Company
Common Stock acquired by the Shareholder, if any, after the date hereof.
4.3. No Solicitation. Prior to the termination of this Agreement
pursuant to Section 7 hereof, Shareholder shall not (directly or indirectly
through advisors, agents or other intermediaries), solicit or initiate inquiries
or encourage the submission of any Acquisition Proposal. If Shareholder receives
any such inquiry or proposal, then Shareholder promptly shall inform Parent of
the terms and conditions, if any, of such inquiry or proposal and the identity
of the person making it. Shareholder immediately will cease and cause his
advisors, agents and other intermediaries to cease any and all existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing.
4.4. Stop Transfer. Shareholder agrees with, and covenants to Parent
that it shall not request that the Company register the transfer of any
certificate or uncertificated interest representing any of the Shares.
4.5. Waiver of Appraisal and Dissenter's Rights. Shareholder hereby
waives any rights of appraisal or rights to dissent that Shareholder may have.
5. Third Party Business Combination. If (a) the Merger Agreement is
terminated in accordance with Section 7.1(h) or Section 7.1(i) of the Merger
Agreement, (b) within six months from the termination of the Merger Agreement
the Company shall have entered into an agreement for, and within eighteen (18)
months from such consummation shall have consummated, a merger, consolidation,
liquidation, reorganization, tender offer or other business combination
involving the Company or any acquisition, directly or indirectly, of at least
50% of the voting securities of, or all or substantially all of the assets of,
the Company ("Third Party Business Combination") and (c) Shareholder receives
from any Person (other than Parent, or any of its affiliates) any cash or
non-cash consideration in an amount per share greater than $23.09 (the "Third
Party Consideration") in respect of any sale or disposition of all or any
portion of the Shares in connection with and as part of a Third Party Business
Combination, then Shareholder within two (2) Business Days of receipt thereof
shall pay to Parent or its designee an aggregate amount equal to (A) the excess
of the Third Party Consideration over $23.09 multiplied by (B) the number of
Shares with respect to which such Third Party Business Consideration was
received, up to $360,000; provided that, (x) if the consideration received by
Shareholder shall be securities listed on a national securities exchange or
traded on the NASDAQ National Market ("NASDAQ"), the per share value
-5-
6
of such consideration shall be equal to the closing price per share listed on
such national securities exchange or NASDAQ National Market on the date such
transaction is consummated, (y) if the consideration received by Shareholder
shall be in a form other than such listed securities, the per share value shall
be determined by the agreement of the parties as of the date such transaction is
consummated and (z) Shareholder will pay Parent or its designee in kind and on a
pro rata basis (i.e., if the Third Party Consideration includes cash, listed
securities and/or other consideration, Parent or its designee will receive its
pro rata portion of each such item).
6. Specific Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with the terms hereof or were otherwise breached and
that each party shall be entitled to seek specific performance of the terms
hereof, in addition to any other remedy which may be available at law or in
equity.
7. Termination. This Agreement shall terminate on the earlier of (i) the
termination of the Merger Agreement, (ii) the agreement of the parties hereto to
terminate this Agreement, and (iii) consummation of the Merger.
8. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) transmitter's confirmation of a
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or when delivered by hand or (c) the expiration of five
business days after the day when mailed by certified or registered mail, postage
prepaid, addressed at the following addresses (or at such other address for a
party as shall be specified by like notice):
-6-
7
If to Parent, to:
Photronics, Inc.
1061 East Indiantown Road
Jupiter, Florida 33477
Attention: Jeffrey P. Moonan
Telephone No: 561-745-1222
Facsimile No: 561-747-1432
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
399 Park Avenue
New York, New York 10022
Attention: Steven L. Wasserman, Esq.
Telephone No: (212) 318-6462
Facsimile No.: (212) 319-4090
If to Shareholder, to the Shareholder at:
10234 Candleberry Land
Northridge, California 91324
with a copy to:
O'Melveny & Myers LLP
400 South Hope Street
Los Angeles, California 90071
Attention: Richard A. Boehmer, Esq.
9. Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, between
the parties, with respect to the subject matter hereof.
10. Consideration. This Agreement is granted in consideration of the
execution and delivery of the Merger Agreement by Parent.
11. Amendment. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement by
the parties hereto.
-7-
8
12. Successors and Assigns. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties hereto. This Agreement will be binding upon, inure to the benefit of and
be enforceable by each party and such party's respective heirs, beneficiaries,
executors, representatives and permitted assigns; provided, that Parent may
assign, in its sole discretion, its rights and obligations hereunder to any
affiliate of Parent, but no such assignment shall relieve Parent of its
obligations hereunder if such assignee does not perform such obligations.
13. Counterparts. This Agreement may be executed in two 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.
14. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
California (without giving effect to the provisions thereof relating to
conflicts of law).
15. Public Announcements. Shareholder shall not issue any press release or
other statement with respect to the transactions contemplated by this Agreement
and the Merger Agreement without the prior written consent of Parent.
16. Severability. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms of
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
17. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
18. Shareholder Capacity. Shareholder makes no agreement or understanding
herein in his capacity as a director or officer of the Company. The Shareholder
signs solely in his capacity as the record holder and beneficial owner of the
Shares and nothing herein shall restrict Shareholder in the exercise of his
fiduciary duties as a director or officer of the Company.
-8-
9
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the Shareholder and a duly authorized officer of Parent on the day and year
first written above.
Photronics, Inc.
By: /s/ MICHAEL J. YOMAZZO
------------------------------------
Michael J. Yomazzo,
Vice Chairman
/s/ JAMES L. MACDONALD
----------------------------------------
James L. MacDonald
/s/ JAMES L. MACDONALD, JR.
----------------------------------------
James L. MacDonald, Jr. as Trustee
under the Trust Agreement, dated
November 17, 1983, for the MacDonald
Family Trust
/s/ ROBIN A. MACDONALD
----------------------------------------
Robin A. MacDonald as Trustee
under the Trust Agreement, dated
November 17, 1983, for the MacDonald
Family Trust
-9-
10
Acknowledgment and Agreement of Spouse
The undersigned, being the spouse of Shareholder, acknowledges that she has
read and understands the terms of this Agreement and hereby agrees to be bound
by the terms hereof to the extent she has a community property or other interest
in the Shares.
/s/ ROBIN A. MACDONALD
----------------------------------------
Robin A. MacDonald
-10-
11
SCHEDULE I
Shares of Common Options to Acquire Shares
Name Stock Owned of Common Stock
- ---- ---------------- -------------------------
James L. MacDonald 100,000 241,396, of which 164,558
are vested
James L. MacDonald 440,000
and Robin A.
MacDonald as Trustees
under the Trust
Agreement, dated
November 17, 1983,
of the MacDonald
Family Trust
-11-