As filed with the Securities and Exchange Commission on September 23 , 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MERRIMAC INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
New Jersey 22-1642321
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
41 Fairfield Place, West Caldwell, New Jersey 07006-6287
(Address of Principal Executive Offices) (Zip Code)
MERRIMAC INDUSTRIES, INC.
STOCK OPTION PLAN FOR
NON-EMPLOYEE DIRECTORS
(Full Title of the Plan)
MASON N. CARTER Copy to:
President, Chief Executive THOMAS C. MERIAM, ESQ.
Officer and Director CHADBOURNE & PARKE LLP
MERRIMAC INDUSTRIES, INC. 30 Rockefeller Plaza
41 Fairfield Place New York, New York 10112
West Caldwell, New Jersey 07006-6287
(Name and Address of Agent For Service)
Telephone Number, Including Area Code, of Agent For Service: (201) 575-1300
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
securities maximum maximum Amount of
to be Amount to be offering price aggregate registration
registered registered per share* offering price** fee
Common Stock,
Par Value 50,000 shares $17.59375 $879,688 $267.00
$.50 per
share
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* Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933 on the basis of
the average of the high and low prices ($17.875 and $17.3125, respectively)
on September 19, 1997 for the Company's Common Stock on the American Stock
Exchange.
** There are also registered hereunder such indeterminate number of additional
shares as may become subject to awards under the Plan as a result of the
antidilution provision contained therein.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Registrant with the Securities and
Exchange Commission are specifically incorporated herein by reference and made a
part hereof:
(i) Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 28, 1996, filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act"), which
incorporates by reference certain information, including the
Registrant's 1996 consolidated financial statements contained in its
1996 Annual Report to Stockholders;
(ii) all other reports filed by Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since December 28, 1996; and
(iii) the description of Registrant's Common Stock contained in
Registrant's Application for Registration on Form 8-B dated July 20,
1994.
All documents subsequently filed by Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement modified or superseded shall not be
deemed, except as so modified or superseded, to constitute part of this
Registration Statement.
Item 4. Description of Securities.
This Item is not applicable as Registrant's Common Stock is registered
under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
This Item is not applicable.
Item 6. Indemnification of Directors and Officers.
Section 14A:3-5 of the New Jersey Business Corporation Act provides in
part as follows:
"(2) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate agent*
against his expenses and liabilities in
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* A corporate agent is defined by Section 14A:3-5(1)(a) to include any person
who is or was a director, officer, employee or agent of the indemnifying
corporation.
<PAGE>
connection with any proceeding involving the corporate agent by reason of his
being or having been such a corporate agent, other than a proceeding by or in
the right of the corporation, if
(a) such corporate agent acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of
the corporation; and
(b) with respect to any criminal proceeding, such corporate
agent had no reasonable cause to believe his conduct was unlawful. The
termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall
not of itself create a presumption that each corporate agent did not
meet the applicable standards of conduct set forth in paragraphs
14A:3-5(2)(a) and 14A:3-5(2)(b).
"(3) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate agent
against his expenses in connection with any proceeding by or in the right of the
corporation to procure a judgment in its favor which involves the corporate
agent by reason of his being or having been such corporate agent, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation. However, in such proceeding no
indemnification shall be provided in respect of any claim, issue or matter as to
which such corporate agent shall have been adjudged to be liable to the
corporation, unless and only to the extent that the Superior Court or the court
in which such proceeding was brought shall determine upon application that
despite the adjudication of liability, but in view of all circumstances of the
case, such corporate agent if fairly and reasonably entitled to indemnity for
such expenses as the Superior Court or such other court shall deem proper.
"(4) Any corporation organized for any purpose under any general or
special law of this State shall indemnify a corporate agent against expenses to
the extent that such corporate agent has been successful on the merits or
otherwise in any proceeding referred to in subsections 14A:3-5(2) and 14A:3-5(3)
or in defense of any claim, issue or matter therein.
"(5) Any indemnification under subsection 14A:3-5(2) and, unless
ordered by a court, under subsection 14A:3-5(3) may be made by the corporation
only as authorized in a specific case upon a determination that indemnification
is proper in the circumstances because the corporate agent met the applicable
standard of conduct set forth in subsection 14A:3-5(2) or subsection 14A:3-5(3).
Unless otherwise provided in the certificate of incorporation or bylaws, such
determination shall be made
(a) by the board of directors or a committee thereof, acting
by a majority vote of a quorum consisting of directors who were not
parties to or otherwise involved in the proceeding; or
(b) if such a quorum is not obtainable, or, even if obtainable
and such quorum of the board of directors or committee by a majority
vote of the disinterested directors so directs, by independent legal
counsel, in a written opinion, such counsel to be designated by the
board of directors; or
(c) by the shareholders if the certificate of incorporation or
bylaws or a resolution of the board of directors or of the shareholders
so directs.
"(6) Expenses incurred by a corporate agent in connection with a
proceeding may be paid by the corporation in advance of the final disposition of
the proceeding as authorized by the board of directors upon receipt of an
undertaking by or on behalf of the corporate agent to repay such
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amount if it shall ultimately be determined that he is not entitled to be
indemnified as provided in this section.
"(7)(a) If a corporation upon application of a corporate agent has
failed or refused to provide indemnification as required under subsection
14A:3-5(4) or permitted under subsections 14A:3-5(2), 14A:3-5(3) and 14A:3-5(6),
a corporate agent may apply to a court for an award of indemnification by the
corporation, and such court
(i) may award indemnification to the extent authorized under
subsections 14A:3-5(2) and 14A:3-5(3) and shall award indemnification
to the extent required under subsection 14A:3-5(4), notwithstanding any
contrary determination which may have been made under subsection
14A:3-5(5); and
(ii) may allow reasonable expenses to the extent authorized by,
and subject to the provisions of, subsection 14A:3-5(6), if the court
shall find that the corporate agent has by his pleadings or during the
course of the proceeding raised genuine issues of fact or law.
* * *
"(8) The indemnification and advancement of expenses provided by or
granted pursuant to the other subsections of this section shall not exclude any
other rights, including the right to be indemnified against liabilities and
expenses incurred in proceedings by or in the right of the corporation, to which
a corporate agent may be entitled under a certificate of incorporation, bylaw,
agreement, vote of shareholders, or otherwise; provided that no indemnification
shall be made to or on behalf of a corporate agent if a judgment or other final
adjudication adverse to the corporate agent establishes that his acts or
omissions (a) were in breach of his duty of loyalty to the corporation or its
shareholders, as defined in subsection (3) of N.J.S.14A:2-7, (b) were not in
good faith or involved a knowing violation of law or (c) resulted in receipt by
the corporate agent of an improper personal benefit.
"(9) Any corporation organized for any purpose under any general or
special law of this State shall have the power to purchase and maintain
insurance on behalf of any corporate agent against any expenses incurred in any
proceeding and any liabilities asserted against him by reason of his being or
having been a corporate agent, whether or not the corporation would have the
power to indemnify him against such expenses and liabilities under the
provisions of this section. The corporation may purchase such insurance from, or
such insurance may be reinsured in whole or in part by, an insurer owned by or
otherwise affiliated with the corporation, whether or not such insurer does
business with other insureds.
"(10) The powers granted by this section may be exercised by the
corporation, notwithstanding the absence of any provision in its certificate of
incorporation or bylaws authorizing the exercise of such powers.
"(11) Except as required by subsection 14A:3-5(4), no indemnification
shall be made or expenses advanced by a corporation under this section, and none
shall be ordered by a court, if such action would be inconsistent with a
provision of the certificate of incorporation, a bylaw, a resolution of the
board of directors or of the shareholders, an agreement or other proper
corporate action, in effect at the time of the accrual of the alleged cause of
action asserted in the proceeding, which prohibits, limits or otherwise
conditions the exercise of indemnification powers by the corporation or the
rights of indemnification to which a corporate agent may be entitled."
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Section 12 of Registrant's By-laws provides as follows:
"12.1 Indemnification of Directors and Officers. [Registrant] shall, to
the fullest extent permitted by applicable law, indemnify any person (and the
heirs, executors and administrators thereof) who was or is made, or threatened
to be made, a party to an action, suit or proceeding, whether civil, criminal,
administrative or investigative, whether involving any actual or alleged breach
of duty, neglect or error, any accountability, or any actual or alleged
misstatement, misleading statement or other act or omission and whether brought
or threatened in any court or administrative or legislative body or agency,
including an action by or in the right of [Registrant] to procure a judgment in
its favor and an action by or in the right of any other corporation of any type
or kind, domestic or foreign, or any partnership, joint venture, trust, employee
benefit plan or other enterprise, which any director or officer of [Registrant]
is serving or has served in any capacity at the request of [Registrant], by
reason of the fact that he, his testator or intestate is or was a director or
officer of [Registrant], or is serving or has served such other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise in
any capacity, against judgments, fines, amounts paid in settlement, and costs,
charges and expenses, including attorneys' fees, incurred therein or in any
appeal thereof.
"12.2. Indemnification of Others. [Registrant] shall indemnify other
persons and reimburse the expenses thereof, to the extent required by applicable
law, and may indemnify any other person to whom [Registrant] is permitted to
provide indemnification or the advancement of expenses, whether pursuant to
rights granted pursuant to, or provided by, the New Jersey Business Corporation
Act or otherwise.
"12.3. Advances or Reimbursement of Expenses. [Registrant] shall, from
time to time, reimburse or advance to any person referred to in Section 12.1 the
funds necessary for payment of expenses, including attorneys' fees, incurred in
connection with any action, suit or proceeding referred to in Section 12.1, upon
receipt of a written undertaking by or on behalf of such person to repay such
amount(s) if a judgment or other final adjudication adverse to the director or
officer establishes that his acts or omissions (i) constitute a breach of his
duty of loyalty to [Registrant] or its shareholders, (ii) were not in good
faith, (iii) involved a knowing violation of law, (iv) resulted in his receiving
an improper personal benefit, or (v) were otherwise of such a character that New
Jersey law would require that such amount(s) be repaid.
"12.4. Service of Certain Entities Deemed Requested. Any director or
officer of [Registrant] serving (i) another corporation, of which a majority of
the shares entitled to vote in the election of its directors is held by
[Registrant], or (ii) any employee benefit plan of [Registrant] or any
corporation referred to in clause (i), in any capacity shall be deemed to be
doing so at the request of [Registrant].
"12.5. Interpretation. Any person entitled to be indemnified or to the
reimbursement or advancement of expenses as a matter of right pursuant to this
Article may elect to have the right to indemnification (or advancement of
expense) interpreted on the basis of the applicable law in effect at the time of
the occurrence of the event or events giving rise to the action, suit or
proceeding, to the extent permitted by applicable law, or on the basis of the
applicable law in effect at the time indemnification is sought.
"12.6. Indemnification Right. The right to be indemnified or to the
reimbursement or advancement of expenses pursuant to this Article (i) is a
contract right pursuant to which the person entitled thereto may bring suit as
if the provisions hereof were set forth in a separate written contract between
[Registrant] and the director or officer, (ii) is intended to be retroactive and
shall be available with respect to events occurring prior to the adoption
hereof, (iii) shall continue to exist after any elimination of or amendment to
this Article 12 hereof with respect to
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events occurring prior thereto, and (iv) and shall not be deemed exclusive of
any other rights to which any person claiming indemnification hereunder may be
entitled.
"12.7. Indemnification Claims. If a request to be indemnified or for
the reimbursement or advancement of expenses pursuant hereto is not paid in full
by [Registrant] within thirty days after a written claim has been received by
[Registrant], the claimant may at any time thereafter bring suit against
[Registrant] to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled also to be paid the expenses of
prosecuting such claim. Neither the failure of [Registrant] (including its Board
of Directors, independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
or reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by [Registrant] (including its Board
of Directors, independent legal counsel, or its shareholders) that the claimant
is not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
"12.8. Insurance. [Registrant] may maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of [Registrant],
whether or not [Registrant] would have the power to provide indemnification to
such person."
Registrant has procured insurance protecting it under its obligation to
indemnify officers and directors against certain types of liabilities (including
certain liabilities under the Securities Act of 1933) that may be incurred by
them in the performance of their duties and affording protection to such
officers and directors in certain areas to which the corporate indemnity does
not extend, all within specified limits and subject to specified deductions.
Item 7. Exemption from Registration Claimed.
This Item is not applicable.
Item 8. Exhibits.
3(i)(a). Certificate of Incorporation of Registrant (incorporated
herein by reference to Exhibit B of Registrant's
definitive Proxy Statement for its 1994 Annual Meeting),
as modified by paragraph 2.1 of the Plan of Reorganization
and Agreement of Merger dated as of March 11, 1994
(incorporated herein by reference to Exhibit A of
Registrant's definitive Proxy Statement for its 1994
Annual Meeting).
3(ii)(a). Amendment to By-laws of Registrant.
3(ii)(b). By-laws of Registrant as in effect on the date hereof.
5a1. Opinion of McCarter & English, counsel for Registrant,
covering shares of the Company's Common Stock issuable
under the Merrimac Industries, Inc. Stock Option Plan for
Non-Employee Directors.
10a1. Merrimac Industries, Inc. Stock Option Plan for
Non-Employee Directors (incorporated herein by reference
to Exhibit 10(d) of Registrant's Form 10-KSB for the
fiscal year ended December 28, 1996).
23a1. Consent of J.H. Cohn LLP, independent public accountants.
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<PAGE>
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change
in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase
or decrease in the volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in this Registration Statement.
(iii) Include any additional or changed material information
on the plan of distribution;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for determining liability under the Securities Act of 1933,
each such post-effective amendment shall be treated as a new registration
statement of the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of West Caldwell, State of New Jersey, on this 23rd day
of September 1997.
By /s/ Mason N. Carter
---------------------------
Mason N. Carter
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 23rd day of September 1997.
Signature Title
/s/ Mason N. Carter Chairman of the Board, President,
------------------------- Chief Executive Officer and Director
(Mason N. Carter) (principal executive officer)
/s/ Eugene W. Niemiec Vice Chairman and Chief Technology
------------------------- Officer and Director
(Eugene W. Niemiec)
/s/ Arthru A. Oliner Director
-------------------------
(Arthur A. Oliner)
/s/ Albert H. Cohen Director
-------------------------
(Albert H. Cohen)
/s/ Robert V. Condon Vice President-Finance, Treasurer,
------------------------- Secretary and Chief Financial Officer
(Robert V. Condon) (principal financial and accounting
officer)
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit Page
3(ii)(a) Amendment to By-laws of Registrant.
3(ii)(b) By-laws of Registrant as in effect on
the date hereof.
5a1 - Opinion of McCarter & English, counsel
for Registrant, covering shares of the
Company's Common Stock issuable under
the Merrimac Industries, Inc. Stock
Option Plan for Non-Employee Directors.
23a1 - Consent of J.H. Cohn LLP, independent
public accountants.
EXHIBIT 3(ii)a
MERRIMAC INDUSTRIES, INC.
BY-LAW AMENDMENT
ADOPTED ON MARCH 12, 1997
EFFECTIVE MARCH 12, 1997
The By-Laws of Merrimac Industries, Inc. were amended by deleting
Section 2.1 in its entirety and inserting the following in lieu thereof:
"2.1. Annual Meeting. The annual meeting of shareholders shall
be held at the principal office of the Corporation, or at such other
place within or without the State of New Jersey, and at such time, as
shall be determined by the board of directors, on the last Thursday in
April of each year, or on such other day as the board of directors may
designate. Such annual meeting shall be held for the purpose of
electing directors, and for the transaction of such other business as
may be required by law or these by-laws or as may properly come before
the meeting."
Exhibit 3(ii)(b)
BY-LAWS OF
MERRIMAC INDUSTRIES, INC.
Section 1. LAW, CERTIFICATE OF INCORPORATION AND BY-LAWS
1.1. These by-laws are subject to the certificate of incorporation of the
corporation. In these by-laws, references to law, the certificate of
incorporation and by-laws mean the law, the provisions of the certificate of
incorporation and the by-laws as from time to time in effect.
Section 2. SHAREHOLDERS
2.1. Annual Meeting. The annual meeting of shareholders shall be held at
the principal office of the Corporation, or at such other place within or
without the State of New Jersey, and at such time, as shall be determined by the
board of directors, on the last Thursday in April of each year, or on such other
day as the board of directors may designate. Such annual meeting shall be held
for the purpose of electing directors, and for the transaction of such other
business as may be required by law or these by-laws or as may properly come
before the meeting.
2.2. Special Meetings. A special meeting of the shareholders may be called
at any time by the president or by a majority of the board of directors. It
shall also be the duty of the president, or in his absence, the duty of a vice
president, to call such special meetings whenever so requested in writing by
shareholders owning a majority of the shares of capital stock entitled to vote
at such meeting. At any such special meeting only such business may be
transacted which is related to the purpose or purposes set forth in the notice
thereof. Any such call shall state the place, date, hour, and purposes of the
meeting.
2.3. Place of Meeting. All meetings of the shareholders for the election of
directors or for any other purpose shall be held at such place within or without
the State of New Jersey as may be determined from time to time by the board of
directors. Any adjourned session of any meeting of the shareholders shall be
held at the place designated in the vote of adjournment.
2.4. Notice of Meetings. Except as otherwise provided by law, a written
notice of each meeting of shareholders stating the place, day and hour thereof
and, in the case of a special meeting, the purposes for which the meeting is
called, shall be given not less than ten nor more than sixty days before the
meeting, to each shareholder entitled to vote thereat, and to each shareholder
who, by law, by the certificate of incorporation or by these by-laws, is
entitled to notice, by leaving such notice with him or at his residence or usual
place of business, or by depositing it in the United States mail, postage
prepaid, and addressed to such shareholder at his address as it appears in the
records of the corporation (or at such other address as such shareholder
requests in writing to the secretary of the corporation). If mailed, such notice
shall be deemed as given when deposited in the United States mail in the manner
provided above. Such notice shall be given by the secretary, or by an officer or
person designated by the board of directors, or in the case of a special meeting
by the officer calling the meeting. As to any adjourned session of any meeting
of shareholders, notice of the adjourned meeting need not be given if the time
and place thereof are announced at the meeting at which the adjournment was
taken except that if after the adjournment a new record date is set for the
adjourned session, notice of any such adjourned session of the meeting shall be
given in the manner heretofore described. No notice of any meeting of
shareholders or any adjourned session thereof need be given to a shareholder if
a written waiver of notice, executed before or after the meeting or
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such adjourned session by such shareholder, in person or by proxy, is filed with
the records of the meeting or if the shareholder attends such meeting, in person
or by proxy, without objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of the shareholders or any adjourned session thereof need be specified
in any written waiver of notice.
2.5. Quorum of Shareholders. At any meeting of the shareholders a quorum as
to any matter shall consist of a majority of the votes entitled to be cast on
the matter, except where a larger quorum is required by law, by the certificate
of incorporation or by these by-laws. Any meeting may be adjourned from time to
time by a majority of the votes properly cast upon the question, whether or not
a quorum is present. If a quorum is present at an original meeting, a quorum
need not be present at an adjourned session of that meeting. Shares of its own
stock belonging to the corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of any corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
2.6. Action by Vote. When a quorum is present at any meeting, a plurality
of the votes properly cast for election to any office shall elect to such office
and a majority of the votes properly cast upon any question other than an
election to an office shall decide the question, except when a larger vote is
required by law, by the certificate of incorporation or by these by-laws. No
ballot shall be required for any election unless requested by a shareholder
present or represented at the meeting and entitled to vote in the election.
2.7. Proxy Representation. Every shareholder may authorize another person
or persons to act for him by proxy in all matters in which a shareholder is
entitled to participate, whether by waiving notice of any meeting, objecting to
or voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the shareholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after eleven months from
its date unless such proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and, if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the corporation generally. The authorization of a proxy may but need
not be limited to specified action, provided, however, that if a proxy limits
its authorization to a meeting or meetings of shareholders, unless otherwise
specifically provided such proxy shall entitle the holder thereof to vote at any
adjourned session but shall not be valid after the final adjournment thereof.
2.8. Inspectors. The directors or the person presiding at the meeting may,
but need not, appoint one or more inspectors of election and any substitute
inspectors to act at the meeting or any adjournment thereof. Each inspector,
before entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability. The inspectors, if any,
shall determine the number of shares of stock outstanding and the voting power
of each, the shares of stock represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper to conduct the election or
vote with fairness to all shareholders. On request of the person presiding at
the meeting, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and execute a certificate of any fact
found by them.
2.9. List of Shareholders. The secretary shall prepare and make, at least
ten days before every meeting of shareholders, a complete list of the
shareholders entitled to vote at such meeting, arranged in alphabetical order
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and showing the address of each shareholder and the number of shares registered
in his name. The stock ledger shall be the only evidence as to who are
shareholders entitled to examine such list or to vote in person or by proxy at
such meeting.
Section 3. BOARD OF DIRECTORS
3.1. Number. The number of directors which shall constitute the whole board
shall be determined by resolution adopted by a majority of the whole board of
directors, provided that such number shall not be less than three. Until
otherwise determined by such resolution, the Board of Directors shall consist of
five directors. The number of directors may be decreased to any number permitted
by the foregoing at any time by the directors by vote of a majority of the
directors then in office, but only to eliminate vacancies existing by reason of
the death, resignation or removal of one or more directors. Directors shall be
at least eighteen years of age but need not be shareholders.
3.2. Tenure. Except as otherwise provided by law, by the certificate of
incorporation or by these by-laws, each director shall hold office until the
next annual meeting and until his successor is elected and qualified, or until
he sooner dies, resigns, is removed or becomes disqualified.
3.3. Powers. The business and affairs of the corporation shall be managed
under the direction of the board of directors who shall have and may exercise
all the powers of the corporation and do all such lawful acts and things as are
not by law, the certificate of incorporation or these by-laws directed or
required to be exercised or done by the shareholders.
3.4. Vacancies. Vacancies and any newly created directorships resulting
from any increase in the number of directors may be filled by vote of the
shareholders at a meeting called for the purpose, or by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. When one or more directors shall resign from the board, effective at a
future date, a majority of the directors then in office, including those who
have resigned, shall have power to fill such vacancy or vacancies, the vote or
action by writing thereon to take effect when such resignation or resignations
shall become effective. The directors shall have and may exercise all their
powers notwithstanding the existence of one or more vacancies in their number,
subject to any requirements of law or of the certificate of incorporation or of
these by-laws as to the number of directors required for a quorum or for any
vote or other actions.
3.5. Committees. The board of directors may, by vote of a majority of the
entire board, (a) designate, change the membership of or terminate the existence
of any committee or committees, each committee to consist of three or more of
the directors; (b) designate one or more directors as alternate members of any
such committee who may replace any absent or disqualified member at any meeting
of the committee; and (c) determine the extent to which each such committee
shall have and may exercise the powers of the board of directors in the
management of the business and affairs of the corporation, including the power
to authorize the seal of the corporation to be affixed to all papers which
require it and the power and authority to declare dividends or to authorize the
issuance of stock; excepting, however, such powers which by law, by the
certificate of incorporation or by these by-laws they are prohibited from so
delegating. In the absence or disqualification of any member of such committee
and his alternate, if any, the member or members thereof present at any meeting
and not disqualified from voting, whether or not constituting a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member. Committees
established by the board of directors may meet either regularly at stated times
or specially on notice given twenty-four hours in advance by any member thereof
by mail, telegram, telephone or in person to all the other members thereof; but
no notice of any regular meeting need be given; and no notice of any special
meeting need be given to members who shall be present or to
<PAGE>
absent members who shall waive notice in writing before or after such meeting.
Such committees may make rules for the holding and conduct of their meetings and
may appoint such sub-committees and assistants as they from time to time may
deem necessary. The number of regular and alternate members present, if equal to
at least a majority of the regular members of a committee, shall constitute a
quorum and the action of a majority of those present at a meeting at which a
quorum is present and acting shall be the act of a committee.
3.6. Regular Meetings. Regular meetings of the board of directors may be
held without call or notice at such places within or without the State of New
Jersey and at such times as the board may from time to time determine, provided
that notice of the first regular meeting following any such determination shall
be given to absent directors. A regular meeting of the directors may be held
without call or notice immediately after and at the same place as the annual
meeting of shareholders.
3.7. Special Meetings. Special meetings of the board of directors may be
held at any time and at any place within or without the State of New Jersey
designated in the notice of the meeting, when called by the chairman of the
board, the president, or by one-third or more in number of the directors,
reasonable notice thereof being given to each director by the secretary or by
the chairman of the board, the president or any one of the directors calling the
meeting.
3.8. Notice. It shall be reasonable and sufficient notice to a director to
send notice by mail at least forty-eight hours or by telegram at least
twenty-four hours before the meeting addressed to him at his usual or last known
business or residence address or to give notice to him in person or by telephone
at least twenty-four hours before the meeting. Notice of a meeting need not be
given to any director if a written waiver of notice, executed by him before or
after the meeting, is filed with the records of the meeting, or to any director
who attends the meeting without protesting prior thereto or at its commencement
the lack of notice to him. Neither notice of a meeting nor a waiver of a notice
need specify the purposes of the meeting.
3.9. Quorum. Except as may be otherwise provided by law, by the certificate
of incorporation or by these by-laws, at any meeting of the directors a majority
of the directors then in office shall constitute a quorum; a quorum shall not in
any case be less than one-third of the total number of directors constituting
the whole board. Any meeting may be adjourned from time to time by a majority of
the votes cast upon the question, whether or not a quorum is present, and the
meeting may be held as adjourned without further notice.
3.10. Action by Vote. Except as may be otherwise provided by law, by the
certificate of incorporation or by these by-laws, when a quorum is present at
any meeting the vote of a majority of the directors present shall be the act of
the board of directors.
3.11. Action Without a Meeting. Any action required or permitted to be
taken at any meeting of the board of directors or a committee thereof may be
taken without a meeting if all the members of the board or of such committee, as
the case may be, consent thereto in writing, and such writing or writings are
filed with the records of the meetings of the board or of such committee. Such
consent shall be treated for all purposes as the act of the board or of such
committee, as the case may be.
3.12. Participation in Meetings by Conference Telephone. Members of the
board of directors, or any committee designated by such board, may participate
in a meeting of such board or committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other or by any other means permitted by law. Such
participation shall constitute presence in person at such meeting.
<PAGE>
3.13. Compensation. In the discretion of the board of directors, each
director may be paid such fees for his services as director and be reimbursed
for his reasonable expenses incurred in the performance of his duties as
director as the board of directors from time to time may determine. Nothing
contained in this section shall be construed to preclude any director from
serving the corporation in any other capacity and receiving reasonable
compensation therefor.
3.14. Interested Directors and Officers.
(a) No contract or transaction between the corporation and one or more of
its directors or officers, or between the corporation and any other corporation,
partnership, association, or other organization in which one or more of the
corporation's directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if any one of
the following is true:
(1) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the board of
directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(2) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the
shareholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the shareholders; or
(3) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the board of
directors, a committee thereof, or the shareholders.
(b) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
Section 4. OFFICERS AND AGENTS
4.1. Enumeration; Qualification. The executive officers of the corporation
shall be a chairman, a president, one or more vice presidents, a treasurer, a
secretary and such other officers, if any, as the board of directors from time
to time may in its discretion elect or appoint. The corporation may also have
such agents, if any, as the board of directors from time to time may in its
discretion choose. Any officer may be but none need be a director or
shareholder. Any two or more offices may be held by the same person, except that
the same person shall not serve both as President and Secretary. Any officer may
be required by the board of directors to secure the faithful performance of his
duties to the corporation by giving bond in such amount and with sureties or
otherwise as the board of directors may determine.
4.2. Powers. Subject to law, to the certificate of incorporation and to the
other provisions of these by-laws, each officer shall have, in addition to the
duties and powers herein set forth, such duties and powers as are commonly
incident to his office and such additional duties and powers as the board of
directors may from time to time designate.
<PAGE>
4.3. Election. The officers may be elected by the board of directors at
their first meeting following the annual meeting of the shareholders or at any
other time. At any time or from time to time the directors may delegate to any
officer their power to elect or appoint any other officer or any agents.
4.4. Tenure. Each officer shall hold office until the first meeting of the
board of directors following the next annual meeting of the shareholders and
until his respective successor is chosen and qualified unless a shorter period
shall have been specified by the terms of his election or appointment, or in
each case until he sooner dies, resigns, is removed or becomes disqualified.
Each agent shall retain his authority at the pleasure of the directors, or the
officer by whom he was appointed or by the officer who then holds agent
appointive power.
4.5. Chairman of the Board of Directors, President and Vice President. The
chairman of the board shall have such duties and powers as shall be designated
from time to time by the board of directors. Unless the board of directors
otherwise specifies, the chairman of the board, or if there is none the chief
executive officer, shall preside, or designate the person who shall preside, at
all meetings of the shareholders and of the board of directors. Unless the board
of directors otherwise specifies, the president shall be the chief executive
officer of the corporation and shall have direct charge of all business
operations of the corporation and, subject to the control of the directors,
shall have general charge and supervision of the business of the corporation.
The vice presidents, one or more of whom may be designated executive vice
president or senior vice president, shall have such duties and powers as shall
be set forth in these by-laws or as shall be designated from time to time by the
board of directors or by the president. In the absence or inability to act of
the president, the duties of the president and chairman of the board shall be
performed by the vice presidents in the order of priority established by the
board unless and until the board of directors shall otherwise direct.
4.6. Treasurer and Assistant Treasurers. The treasurer shall be the chief
financial officer of the corporation and shall be in charge of its books of
account, accounting records and accounting procedures. He shall be responsible
for the verification of all of the assets of the corporation and the preparation
of all tax returns and other financial reports to governmental agencies by the
corporation. He shall also have the care and custody of the funds and securities
of the corporation, sign checks, drafts, notes and orders for the payment of
money, pay out and dispose of the funds and securities of the corporation and in
general perform the duties customary to the office of treasurer. The treasurer
may have such additional duties and powers as may be designated from time to
time by the board of directors or the president. He shall be responsible to and
shall report to the board of directors but in the ordinary conduct of the
corporation's business shall be under the supervision of the president or such
other officer as the board of directors shall designate.
Any assistant treasurers shall have such duties and powers as shall be
designated from time to time by the board of directors, the president or the
treasurer.
4.7. Secretary and Assistant Secretaries. The secretary shall (a) keep the
minutes of the meetings of the board of directors, the shareholders and any
committee designated by the board of directors; (b) see that all required
notices of meetings of the directors, shareholders and members of such
committees are duly given in accordance with the provisions of these by-laws or
as required by law; and (c) have custody of the seal of the corporation and
affix and attest the same to all instruments requiring the seal when authorized
by the board of directors or the president. He shall also have charge of the
corporate records and such books and papers as the board of directors may
specify and shall perform all other duties incident to the office of secretary
or which may be assigned to him from time to time by the board of directors or
the president. In the absence of the secretary from any meeting, an assistant
secretary, or if there be none or he is absent, a temporary secretary chosen at
the meeting, shall record the proceedings thereof. Unless a transfer agent has
been appointed the secretary shall keep or cause
<PAGE>
to be kept the stock and transfer records of the corporation, which shall
contain the names and record addresses of all shareholders and the number of
shares registered in the name of each shareholder. He shall have such other
duties and powers as may from time to time be designated by the board of
directors or the president.
Any assistant secretaries shall have such duties and powers as shall be
designated from time to time by the board of directors, the president or the
secretary.
4.8. Salaries. The salaries of all officers shall be fixed or approved by
the board of directors and the fact that any officer is a director shall not
preclude him from receiving a salary as an officer.
Section 5. RESIGNATIONS AND REMOVALS
5.1. Any director or officer may resign at any time by delivering his
resignation in writing to the chairman of the board, the president, or the
secretary or to a meeting of the board of directors. Such resignation shall be
effective upon receipt unless specified to be effective at some other time, and
without in either case the necessity of its being accepted unless the
resignation shall so state. A director (including persons elected by directors
to fill vacancies in the board) may be removed from office with cause by the
vote of the holders of a majority of the shares issued and outstanding and
entitled to vote in the election of directors. The board of directors may at any
time remove any officer either with or without cause. The board of directors may
at any time terminate or modify the authority of any agent. No director or
officer resigning and (except where a right to receive compensation shall be
expressly provided in a duly authorized written agreement with the corporation)
no director or officer removed shall have any right to any compensation as such
director or officer for any period following his resignation or removal, or any
right to damages on account of such removal, whether his compensation be by the
month or by the year or otherwise; unless, in the case of a resignation, the
directors, or, in the case of removal, the body acting on the removal, shall in
their or its discretion provide for compensation.
Section 6. VACANCIES
6.1. If the office of the chairman, the president or the treasurer or the
secretary becomes vacant, the directors may elect a successor by vote of a
majority of the directors then in office. If the office of any other officer
becomes vacant, any person or body empowered to elect or appoint that officer
may choose a successor. Each such successor shall hold office for the unexpired
term, and in the case of the chairman, the president, the treasurer and the
secretary until his successor is chosen and qualified or in each case until he
sooner dies, resigns, is removed or becomes disqualified. Any vacancy of a
directorship shall be filled as specified in Section 3.4 of these by-laws.
Section 7. CAPITAL STOCK
7.1. Stock Certificates. Each shareholder shall be entitled to a
certificate stating the number and the class and the designation of the series,
if any, of the shares held by him, in such form as shall, in conformity to law,
the certificate of incorporation and the by-laws, be prescribed from time to
time by the board of directors. Such certificate shall be signed by the chairman
or vice chairman of the board, if any, or the president or a vice president and
may be countersigned by the treasurer or an assistant treasurer or by the
secretary or an assistant secretary. Any of or all the signatures on the
certificate may be a facsimile. In case an officer, transfer agent, or registrar
who has signed or whose facsimile signature has been placed on such certificate
shall have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent, or registrar at the time of its
issue.
<PAGE>
7.2. Loss of Certificates. In the case of the alleged theft, loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms, including receipt of a bond
sufficient to indemnify the corporation against any claim on account thereof, as
the board of directors may prescribe.
Section 8. TRANSFER OF SHARES OF STOCK
8.1. Transfer on Books. Subject to the restrictions, if any, stated or
noted on the stock certificate, shares of stock may be transferred on the books
of the corporation by the surrender to the corporation or its transfer agent of
the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with necessary transfer
stamps affixed, and with such proof of the authenticity of signature as the
board of directors or the transfer agent of the corporation may reasonably
require. Except as maybe otherwise required by law, by the certificate of
incorporation or by these by-laws, the corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock for
all purposes, including the payment of dividends and the right to receive notice
and to vote or to give any consent with respect thereto and to be held liable
for such calls and assessments, if any, as may lawfully be made thereon,
regardless of any transfer, pledge or other disposition of such stock until the
shares have been properly transferred on the books of the corporation.
It shall be the duty of each shareholder to notify the corporation of his
post office address.
8.2. Record Date and Closing Transfer Books. In order that the corporation
may determine the shareholders entitled to notice of or to vote at any meeting
of shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty nor less than ten
days (or such longer period as may be required by law) before the date of such
meeting, nor more than sixty days prior to any other action.
If no record date is fixed:
(a) The record date for determining shareholders entitled to notice
of or to vote at a meeting of shareholders shall be at the close of
business on the day next preceding the day on which notice is given, or,
if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held.
(b) The record date for determining shareholders entitled to express
consent to corporate action in writing without a meeting, when no prior
action by the board of directors is necessary, shall be the day on which
the first written consent is expressed.
(c) The record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the board
of directors adopts the resolution relating thereto.
A determination of shareholders of record entitled to notice of or to vote
at a meeting of shareholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
<PAGE>
Section 9. CORPORATE SEAL
9.1. Subject to alteration by the directors, the seal of the corporation
shall consist of a flat-faced circular die with the word "New Jersey" and the
name of the corporation cut or engraved thereon, together with such other words,
dates or images as may be approved from time to time by the directors.
Section 10. EXECUTION OF PAPERS
10.1. Except as the board of directors may generally or in particular cases
authorize the execution thereof in some other manner, all deeds, leases,
transfers, contracts, bonds, notes, checks, drafts or other obligations made,
accepted or endorsed by the corporation shall be signed or endorsed in such
manner as shall be determined by the directors. The funds of the corporation
shall be deposited in such banks or trust companies, and checks drawn against
such funds shall be signed in such manner as may be determined from time to time
by the directors.
Section 11. FISCAL YEAR
11.1. The fiscal year of the corporation shall be the 52-week or 53-week
period beginning on or about the 1st day of January and ending on the Saturday
closest to the 31st day of December, or such other period as may be fixed by the
board of directors.
Section 12. INDEMNIFICATION
12.1. Indemnification of Directors and Officers. The corporation shall, to
the fullest extent permitted by applicable law, indemnify any person (and the
heirs, executors and administrators thereof) who was or is made, or threatened
to be made, a party to an action, suit or proceeding, whether civil, criminal,
administrative or investigative, whether involving any actual or alleged breach
of duty, neglect or error, any accountability, or any actual or alleged
misstatement, misleading statement or other act or omission and whether brought
or threatened in any court or administrative or legislative body or agency,
including an action by or in the right of the corporation to procure a judgment
in its favor and an action by or in the right of any other corporation of any
type or kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise, which any director or officer of the
corporation is serving or has served in any capacity at the request of the
corporation, by reason of the fact that he, his testator or intestate is or was
a director or officer of the corporation, or is serving or has served such other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid in
settlement, and costs, charges and expenses, including attorneys' fees, incurred
therein or in any appeal thereof.
12.2. Indemnification of Others. The Corporation shall indemnify other
persons and reimburse the expenses thereof, to the extent required by applicable
law, and may indemnify any other person to whom the Corporation is permitted to
provide indemnification or the advancement of expenses, whether pursuant to
rights granted pursuant to, or provided by, the New Jersey Business Corporation
Act or otherwise.
12.3. Advances or Reimbursement of Expenses. The corporation shall, from
time to time, reimburse or advance to any person referred to in Section 12.1 the
funds necessary for payment of expenses, including attorneys' fees, incurred in
connection with any action, suit or proceeding referred to in Section 12.1, upon
receipt of a written undertaking by or on behalf of such person to repay such
amount(s) if a judgment or other final adjudication adverse to the director or
officer establishes that his acts or omissions (i) constitute a breach of his
duty of loyalty to the corporation or its shareholders, (ii) were not in good
faith, (iii) involved a knowing violation
<PAGE>
of law, (iv) resulted in his receiving an improper personal benefit, or (v) were
otherwise of such a character that New Jersey law would require that such
amount(s) be repaid.
12.4. Service of Certain Entities Deemed Requested. Any director or officer
of the corporation serving (i) another corporation, of which a majority of the
shares entitled to vote in the election of its directors is held by the
corporation, or (ii) any employee benefit plan of the corporation or any
corporation referred in clause (i), in any capacity shall be deemed to be doing
so at the request of the Corporation.
12.5. Interpretation. Any person entitled to be indemnified or to the
reimbursement or advancement of expenses as a matter of right pursuant to this
Article may elect to have the right to indemnification (or advancement of
expense) interpreted on the basis of the applicable law in effect at the time of
the occurrence of the event or events giving rise to the action, suit or
proceeding, to the extent permitted by applicable law, or on the basis of the
applicable law in effect at the time indemnification is sought.
12.6. Indemnification Right. The right to be indemnified or to the
reimbursement or advancement of expenses pursuant to this Article (i) is a
contract right pursuant to which the person entitled thereto may bring suit as
if the provisions hereof were set forth in a separate written contract between
the corporation and the director or officer, (ii) is intended to be retroactive
and shall be available with respect to events occurring prior to the adoption
hereof, (iii) shall continue to exist after any elimination of or amendment to
this Article 12 hereof with respect to events occurring prior thereto, and (iv)
and shall not be deemed exclusive of any other rights to which any person
claiming indemnification hereunder may be entitled.
12.7. Indemnification Claims. If a request to be indemnified or for the
reimbursement or advancement of expenses pursuant hereto is not paid in full by
the corporation within thirty days after a written claim has been received by
the corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled also to be paid the expenses of
prosecuting such claim. Neither the failure of the corporation (including its
Board of Directors, independent legal counsel, or its shareholders) to have made
a determination prior to the commencement of such action that indemnification of
or reimbursement or advancement of expenses to the claimant is proper in the
circumstances, nor an actual determination by the corporation (including its
Board of Directors, independent legal counsel, or its shareholders) that the
claimant is not entitled to indemnification or to the reimbursement or
advancement of expenses, shall be a defense to the action or create a
presumption that the claimant is not so entitled.
12.8. Insurance. The corporation may maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
whether or not the corporation would have the power to provide indemnification
to such person.
Section 13. AMENDMENTS
13.1. These by-laws may be adopted, amended or repealed by vote of a
majority of the stock outstanding at the time entitled to vote in the election
of directors. Provided that notice of the proposed alteration, amendment or
repeal of these by-laws has been stated in the notice of the meeting, such
by-laws may also be adopted, amended or repealed by the board of directors by
vote of a majority of the entire board of directors, but any by-laws adopted by
the board of directors may be amended or repealed by the shareholders entitled
to vote thereon as herein provided. Any by-law, whether adopted, amended or
repealed by the shareholders or directors, may be amended or reinstated by the
shareholders or the directors.
Exhibit 5a1
Letterhead of McCarter & English
Four Gateway Center
100 Mulberry Street
P.O. Box 652
Newark, New Jersey 07101-0652
(973)622-4444
September 23,1997
Re: Stock Option Plan for Non-Employee Directors
Registration Statement on Form S-8
Merrimac Industries, Inc.
41 Fairfield Place
West Caldwell, NJ 07006
Dear Sirs:
We have served as special New Jersey counsel to Merrimac
Industries, Inc., a New Jersey corporation (the "Company"), in connection with
the filing by the Company of a Registration Statement on Form S-8 (the
"Registration Statement") with the Securities and Exchange Commission, covering
up to 50,000 shares (the "Shares") of common stock, par value $.50 per share, of
the Company to issued and sold pursuant to the Company's Stock Option Plan For
Non-Employee Directors (the "Plan").
In rendering this opinion, we have examined the Company's
Certificate of Incorporation and bylaws, each as amended to date, minutes of
proceedings and consents of the Board of Directors of the Company, the form of
Company common stock certificate, and originals or copies of such documents,
instruments, records, and certificates of public officials and officers of the
Company as we have deemed necessary. In connection with such examination, we
have assumed the genuineness of all signatures and the authenticity of all
documents submitted to us as copies, and we have also made such other
investigations of fact and law as we have deemed relevant in connection with the
opinion set forth below. In rendering this opinion, we have relied upon the
accuracy of the certificates, documents, instruments, certificates, and records
we have examined as to the matters of fact covered thereby.
Based on the foregoing, we are of the opinion that the Shares,
when issued and sold in accordance with the terms of the Plan including, without
limitation, payment of the purchase price therefor, will be duly and validly
issued, fully-paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Sincerely,
/s/ McCarter & English
-----------------------
McCarter & English
Exhibit 23a1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the Stock Option Plan for Non-Employee Directors being
filed by Merrimac Industries, Inc. (the "Company") of our report on the
consolidated financial statements of the Company and its subsidiaries, dated
February 18, 1997, which report appears on page 22 of the Company's 1996 Annual
Report to Stockholders and was previously incorporated by reference in the
Company's Annual Report on Form 10-KSB for the fiscal year ended December 28,
1996.
J.H. COHN LLP
Roseland, New Jersey
September 23, 1997
