As filed with the Securities and Exchange Commission on September 30, 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
Incorporation or Organization) Identification No.)
41 Fairfield Place, West Caldwell, New Jersey 07006-6287
(Address of Principal Executive Offices) (Zip Code)
MERRIMAC INDUSTRIES, INC.
LONG-TERM INCENTIVE PLAN
(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 250,000 shares $18.4375 $4,609,375 $1,397.00
$.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 ($18.875 and $18.00, respectively)
on September 26, 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) By-laws of Registrant (incorporated herein by reference
to Exhibit 3(ii)(b) to the Registration Statement on
Form S-8 of the Registrant (Registration No. 333-36199)).
5a1. Opinion of McCarter & English, counsel for Registrant,
covering shares of the Company's Common Stock issuable
under the Merrimac Industries, Inc. Long-Term Incentive
Plan.
10a1. Merrimac Industries, Inc. Long-Term Incentive Plan
(incorporated herein by reference to Exhibit A of
Registrant's definitive Proxy Statement for its 1997
Annual Meeting).
23a1. Consent of J.H. Cohn LLP, independent public accountants.
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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 30th 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 30th day of September, 1997.
Signature Title
/s/ Mason N. Carter Chairman of the Board,
------------------------- President, Chief Executive
(Mason N. Carter) Officer and Director
(principal executive officer)
/s/ Eugene W. Niemiec Vice Chairman and
------------------------- Chief Technology Officer and
(Eugene W. Niemiec) Director
/s/ Arthur A. Oliner Director
-------------------------
(Arthur A. Oliner)
Director
-------------------------
(Albert H. Cohen)
/s/ Robert V. Condon Vice President-Finance,
------------------------- Treasurer, Secretary and
(Robert V. Condon) Chief Financial Officer
(principal financial and
accounting officer)
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit Page
5a1 - Opinion of McCarter & English, counsel for Registrant,
covering shares of the Company's Common Stock issuable
under the Merrimac Industries, Inc. Long-Term Incentive
Plan.
23a1 - Consent of J.H. Cohn LLP, independent public accountants.
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 30, 1997
Re: Long-Term Incentive Plan
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 250,000 shares (the "Shares") of common stock, par value $.50 per share,
of the Company to issued and sold pursuant to the Company's Long-Term Incentive
Plan (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 (to the extent applicable),
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 Long-Term Incentive Plan 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 30, 1997
