As filed with the Securities and Exchange Commission on June 20, 2001
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MERRIMAC INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 22-1642321
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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MERRIMAC INDUSTRIES, INC.
2001 STOCK OPTION PLAN
(Full title of the plan)
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MASON N. CARTER
41 FAIRFIELD PLACE
WEST CALDWELL, NEW JERSEY 07006-6287
(Name and address of agent for service)
(973) 575-1300
(Telephone number of agent for service)
COPY TO:
EDWARD H. COHEN, ESQ.
ROSENMAN & COLIN LLP
575 MADISON AVENUE
NEW YORK, NEW YORK 10022
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---------------------------- ------------------ -------------------- --------------------- ---------------------
Proposed
Proposed maximum
Title of securities to be Amount to be maximum offering aggregate offering Amount of
registered registered (1) price per share (2) price (2) registration fee
============================ ================== ==================== ===================== =====================
Common Stock,
par value $0.01 per share, 175,000 $14.94 $2,614,500 $654
and associated common
share purchase rights(3)
---------------------------- ------------------ -------------------- --------------------- ---------------------
(1) Such shares to be issued upon exercise of options available for grant under
the registrant's 2001 Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee;
computed, pursuant to Rule 457(c), upon the basis of the average of the high and
low prices of the Common Stock as quoted on the American Stock Exchange on June
15, 2001.
(3) Each share of common stock also represents one common share purchase right.
The common share purchase rights are attached to, and transferable only with,
the underlying common stock, and therefore, do not require an additional filing
fee.
11093089.03
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Merrimac Industries, Inc. (the "Registrant") is subject to the
informational requirements of the Securities Exchange Act of 1934 (the "Exchange
Act"), and, in accordance therewith, files reports and other information with
the Securities and Exchange Commission (the "Commission"). The following
documents, or portions thereof, filed by the Registrant with the Commission
pursuant to the Exchange Act are incorporated by reference in this Registration
Statement:
a. The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 30, 2000, filed on March 30, 2001;
b. The Registrant's Quarterly Report on Form 10-QSB for the
fiscal quarter ended March 31, 2001, filed on May 15, 2001;
c. The Registrant's Current Report on Form 8-K, filed on February
21, 2001;
d. The Registrant's Current Report on Form 8-K, filed on February
22, 2001;
e. The Registrant's Current Report on Form 8-K, filed on March
20, 2001;
f. The description of Registrant's Common Share Purchase Rights,
set forth in Amendment No. 4 to the Registration Statement on
Form 8-A of Registrant, dated February 21, 2001, Amendment No.
3 to the Registration Statement on Form 8-A of Registrant,
dated October 27, 2000, Amendment No. 2 to the Registration
Statement on Form 8-A of Registrant, dated April 10, 2000,
Amendment No. 1 to the Registration Statement on Form 8-A of
Registrant, dated June 9, 1999, and the Registration Statement
on Form 8-A of Registrant, dated March 16, 1999, in connection
with the Registrant's listing of the Common Share Purchase
Rights on the American Stock Exchange; and
g. The description of the Registrant's common stock which is
contained in the Registrant's Current Report on Form 8-K,
filed on February 21, 2001.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment hereto indicating that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
of this Registration Statement from the respective dates of filing of such
documents.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the issuance of the Common Stock registered hereby will
be passed upon for the Registrant by Rosenman & Colin LLP. Edward H. Cohen, a
member of Rosenman & Colin LLP, is a director of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is incorporated in Delaware. Under Section 145 of the
General Corporation Law of the State of Delaware, a Delaware corporation has the
power, under specified circumstances, to indemnify its directors, officers,
employees and agents in connection with actions, suits or proceedings brought
against them by a third party or in the right of the corporation, by reason of
the fact that they were or are such directors, officers, employees or agents,
against expenses incurred in any action, suit or proceeding. Article VIII of the
By-laws of the Registrant provides for indemnification of directors and officers
to the fullest extent permitted by the General Corporation Law of the State of
Delaware.
Section 102(b)(7) of the General Corporation Law of the State of
Delaware provides that a certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 (relating to liability for unauthorized acquisitions or redemptions
of, or dividends on, capital stock) of the General Corporation Law of the State
of Delaware, or (iv) for any transaction from which the director derived an
improper personal benefit. Article VII of the Certificate of Incorporation of
the Registrant provides for the limitation of liability of directors and
officers to the fullest extent permitted by the General Corporation Law of the
State of Delaware.
The Registrant has directors' and officers' liability insurance
covering certain liabilities incurred by the directors and officers of the
Registrant in connection with the performance of their respective duties.
ITEM 8. EXHIBITS.
Exhibit No. Description
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*4.01 2001 Stock Option Plan.
4.02 Shareholder Rights Agreement dated as of March 9, 1999 between
Merrimac and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent, is hereby incorporated by reference to Exhibit 1
to Merrimac's Current Report on Form 8-K dated March 9, 1999.
4.03 Amendment No. 1 dated as of June 9, 1999, to the Shareholder
Rights Agreement dated as of March 9, 1999, between Merrimac
and ChaseMellon Shareholder Services, L.L.C., as Rights Agent,
is hereby incorporated by reference to Exhibit 1 to Merrimac's
Current Report on Form 8-K dated June 9, 1999.
4.04 Amendment No. 2 dated as of April 7, 2000, to the Shareholder
Rights Agreement dated as of March 9, 1999, between Merrimac
and ChaseMellon Shareholder Services, L.L.C., as Rights Agent,
is hereby incorporated by reference to Exhibit 2 to Merrimac's
Current Report on Form 8-K dated April 10, 2000.
4.05 Amendment No. 3 dated as of October 26, 2000, to the
Shareholder Rights Agreement dated as of March 9, 1999,
between Merrimac and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent, is hereby incorporated by reference to
Exhibit 2 to Merrimac's Current Report on Form 8-K dated
October 27, 2000.
4.06 Amendment No. 4 dated as of February 21, 2001, to the
Shareholder Rights Agreement dated as of March 9, 1999,
between Merrimac and Mellon Investor Services, L.L.C.
(formerly known as ChaseMellon Shareholder Services, L.L.C.),
as Rights Agent, is hereby incorporated by reference to
Exhibit 1(d) to Merrimac's Current Report on Form 8-K dated
February 21, 2001.
*5.01 Opinion of Rosenman & Colin LLP.
*23.01 Consent of Arthur Andersen LLP.
*23.02 Consent of Rosenman & Colin LLP (included in Exhibit 5.01).
*24.01 Power of Attorney (included on page II-5).
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* Filed herewith
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement to include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(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.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person
of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed
by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
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 19th day
of June 2001.
MERRIMAC INDUSTRIES, INC.
By /s/ Mason N. Carter
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Mason N. Carter
Chairman of the Board, 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 and on the dates indicated. Each of the undersigned hereby
constitutes and appoints Mason N. Carter, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, together with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
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/s/ Mason N. Carter
------------------------- Chairman of the Board, President June 19, 2001
Mason N. Carter and Chief Executive Officer
(Principal Executive Officer)
/s/ Robert V. Condon
------------------------- Vice President, Finance, Chief June 19, 2001
Robert V. Condon Financial Officer, Treasurer and
Secretary
/s/ Edward H. Cohen
---------------------------- Director June 19, 2001
Edward H. Cohen
/s/ Arthur A. Oliner
---------------------------- Director June 19, 2001
Arthur A. Oliner
/s/ Harold J. Raveche
---------------------------- Director June 19, 2001
Harold J. Raveche
/s/ Joel H. Goldberg
---------------------------- Director June 19, 2001
Joel H. Goldberg
/s/ Joseph B. Fuller
---------------------------- Director June 19, 2001
Joseph B. Fuller
/s/ Albert H. Cohen
---------------------------- Director June 19, 2001
Albert H. Cohen
EXHIBIT INDEX
Exhibit Number Description
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4.01 2001 Stock Option Plan.
4.02 Shareholder Rights Agreement dated as of March 9, 1999 between
Merrimac and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent, is hereby incorporated by reference to Exhibit 1
to Merrimac's Current Report on Form 8-K dated March 9, 1999.
4.03 Amendment No. 1 dated as of June 9, 1999, to the Shareholder
Rights Agreement dated as of March 9, 1999, between Merrimac
and ChaseMellon Shareholder Services, L.L.C., as Rights Agent,
is hereby incorporated by reference to Exhibit 1 to Merrimac's
Current Report on Form 8-K dated June 9, 1999.
4.04 Amendment No. 2 dated as of April 7, 2000, to the Shareholder
Rights Agreement dated as of March 9, 1999, between Merrimac
and ChaseMellon Shareholder Services, L.L.C., as Rights Agent,
is hereby incorporated by reference to Exhibit 2 to Merrimac's
Current Report on Form 8-K dated April 10, 2000.
4.05 Amendment No. 3 dated as of October 26, 2000, to the
Shareholder Rights Agreement dated as of March 9, 1999,
between Merrimac and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent, is hereby incorporated by reference to
Exhibit 2 to Merrimac's Current Report on Form 8-K dated
October 27, 2000.
4.06 Amendment No. 4 dated as of February 21, 2001, to the
Shareholder Rights Agreement dated as of March 9, 1999,
between Merrimac and Mellon Investor Services, L.L.C.
(formerly known as ChaseMellon Shareholder Services, L.L.C.),
as Rights Agent, is hereby incorporated by reference to
Exhibit 1(d) to Merrimac's Current Report on Form 8-K dated
February 21, 2001.
5.01 Opinion of Rosenman & Colin LLP.
23.01 Consent of Arthur Andersen LLP.
23.02 Consent of Rosenman & Colin LLP (included in Exhibit 5.01).
24.01 Power of Attorney (included on page II-5).