TENDER AND VOTING AGREEMENT
This TENDER AND VOTING AGREEMENT (this “Agreement”), dated December 23, 2009, by and among Crane Co., a Delaware corporation (“Parent”), Crane Merger Co., a Delaware corporation and a direct, wholly owned subsidiary of Parent (“Merger Sub”), [Stockholder] (“Stockholder”) and Merrimac Industries, Inc., a Delaware corporation (the “Company”).
WHEREAS, Parent, Merger Sub and the Company propose to enter into an Agreement and Plan of Merger (the “Merger Agreement”) as of the date hereof, pursuant to which Merger Sub will be merged with and into the Company (the “Merger”);
WHEREAS, in furtherance of the Merger, on the terms and subject to the conditions set forth in the Merger Agreement, Merger Sub will agree to commence an offer to purchase for cash all of the issued and outstanding shares of the Company’s common stock, par value $.01 per share (“Common Stock”), including all of the outstanding shares of Common Stock Beneficially Owned by Stockholder; and
WHEREAS, as a condition and material inducement for Parent and Merger Sub entering into the Merger Agreement, Parent and Merger Sub have required that Stockholder and the Company agree, and Stockholder and the Company have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and of the representations, warranties, covenants and agreements contained herein, and intending to be legally bound hereby, the parties agree as follows:
1. Definitions. For purposes of this Agreement:
(a) “Beneficially Own” or “Beneficial Ownership” with respect to any securities shall mean having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), including pursuant to any agreement, arrangement or understanding, whether or not in writing. Without duplicative counting of the same securities by the same holder, securities Beneficially Owned by a Person shall include securities Beneficially Owned by all other Persons with whom such Person would constitute a “group” within the meaning of Section 13(d)(3) of the Exchange Act and Rule 13d-5(b)(1) under the Exchange Act.
(b) “Encumbrance” means, any mortgage, deed of trust, lien, pledge, charge, security interest, title retention device, conditional sale or other security arrangement, collateral assignment, claim, adverse claim of title, ownership or right to use restriction or other encumbrance of any kind in respect of such asset (including any restriction on (a) the voting of any security or the transfer of any security or other asset, (b) the receipt of any income derived from any asset, (c) the use of any asset and (d) the possession, exercise or transfer of any other attribute of ownership of any asset), in each case except for such restrictions of general application under the Securities Act of 1933, as amended, and applicable “blue sky” Laws.
(c) Capitalized terms used and not defined herein and defined in the Merger Agreement have the respective meanings ascribed to such terms in the Merger Agreement notwithstanding any termination of the Merger Agreement.
2. Tender of Shares.
(b) If Stockholder acquires Beneficial Ownership of any outstanding shares of Common Stock after the date hereof and prior to the termination of this Agreement, whether upon the exercise of options, warrants or rights, the conversion or exchange of convertible or exchangeable securities, or by means of purchase, dividend, distribution or otherwise (together with the Existing Shares, the “Shares”), Stockholder shall validly tender or cause to be tendered to Merger Sub pursuant to and in accordance with the Offer, not later than the 15th Business Day after commencement of the Offer pursuant to Section 1 of the Merger Agreement and Rule 14d-2 of the Exchange Act or, if acquired later than such time, prior to the Expiration Date, and not withdraw such Shares, or cause such Shares to be withdrawn, from the Offer at any time (except following (i) the termination or expiration of the Offer without Merger Sub purchasing all shares of Common Stock tendered pursuant to the Offer in accordance with its terms, (ii) termination of the Merger Agreement in accordance with its terms, or (iii) an Adverse Amendment, as defined herein). Notwithstanding anything in this Agreement to the contrary, nothing herein shall require Stockholder to exercise any option to purchase shares of Common Stock or to tender or vote either (A) any securities not outstanding at the relevant time or (B) any Company Restricted Stock Unit that is not vested prior to the Acceptance Date.
(c) Stockholder acknowledges that his, her or its obligations to tender or cause to be tendered, and not to withdraw or cause to be withdrawn, the Shares to Merger Sub as provided herein require Stockholder to tender the Shares to Merger Sub in the event that Parent or Merger Sub adjust the terms and conditions of the Merger Agreement in response to a Superior Proposal pursuant to Parent’s and Merger Sub’s “match” rights under Section 5.3 of the Merger Agreement; provided, that following any such adjustment to the Merger Agreement (1) the terms and conditions of the Offer shall be no less favorable to Stockholder than as described in the Merger Agreement on the date hereof and (2) the consideration paid to the Stockholder for Shares tendered in the Offer is the highest consideration paid to any other holder of Common Stock for shares of Common Stock tendered in the Offer; provided further, that the Stockholder’s obligations to tender or cause to be tendered, and not to withdraw or cause to be withdrawn, the Shares shall cease to be binding on the Stockholder in the event that Parent or Merger Sub adjusts the terms and conditions of the Merger Agreement in any way other than as provided in items (1) and (2) of the foregoing proviso (such adjustment, an “Adverse Amendment”).
(d) Stockholder hereby acknowledges and agrees that the obligation of Merger Sub to accept for payment and pay for any Shares in the Offer, including the Shares Beneficially Owned by Stockholder, shall be subject to the terms and conditions of the Offer.
(e) Parent and Merger Sub shall return to Stockholder all materials tendered by Stockholder to Merger Sub, promptly after (i) the termination or expiration of the Offer without Merger Sub purchasing all Shares of Common Stock tendered pursuant to the Offer in accordance with its terms, (ii) termination of the Merger Agreement in accordance with its terms, or (iii) an Adverse Amendment.
(f) Stockholder hereby agrees to permit Parent and Merger Sub to publish and disclose in the Offer Documents, and, if Company Stockholder Approval is required under applicable Law, the Proxy Statement (including all documents and schedules filed with the SEC), his, her or its identity and ownership of Common Stock and the nature of his, her or its obligations, commitments, arrangements and understandings under this Agreement, in each case subject to Stockholder’s prior approval (not to be unreasonably withheld).
3. Provisions Concerning Company Common Stock.
(a) Except as otherwise agreed to in writing by Parent in advance, during the term of this Agreement, Stockholder irrevocably agrees to vote (or cause to be voted) the Shares, whether issued, heretofore owned or hereafter acquired, at any meeting of the holders of Common Stock, however called, or in connection with any written consent of the holders of Common Stock:
(i) in favor of the adoption of the Merger Agreement and the approval of the terms thereof, the approval of the Merger and each of the other actions contemplated by the Merger Agreement and this Agreement and any actions required in furtherance thereof and hereof; and
(ii) against any transaction that constitutes an Acquisition Proposal (other than the Merger, and the transactions contemplated by the Merger Agreement).
(b) Stockholder shall not enter into any written or oral contract, understanding, agreement or other legally binding instrument or arrangement (a “Contract”) with any Person, the effect of which would be inconsistent with or violative of the provisions and agreements contained in this Section 3.
(c) Nothing contained in this Agreement shall in any way restrict or limit the Stockholder from taking (or omitting to take) any action in his or her capacity as a director or officer of the Company or otherwise fulfilling his or her fiduciary obligations as a director or officer of the Company.
4. Other Covenants, Representations and Warranties. As of the date of this Agreement, Stockholder hereby represents, warrants, covenants and agrees as follows:
(a) Ownership of Shares.
(i) Stockholder is either (i) the record holder and Beneficial Owner, or (ii) the Beneficial Owner but not the record holder, of the number of Existing Shares set forth on Schedule I hereto. As of the date hereof, the Existing Shares set forth on Schedule I hereto constitute all of the outstanding shares of Common Stock owned of record or Beneficially Owned by Stockholder.
(ii) Stockholder has good, valid and marketable title to the Existing Shares and, immediately prior to the transfer of Shares to Merger Sub in the Offer, will have good, valid and marketable title to the Shares, in each case, free and clear of all Encumbrances (other than Encumbrances created by the Merger Agreement or this Agreement and other than restrictions on transfer under applicable securities laws).
(iii) Without limiting the foregoing, Stockholder has sole voting power and sole power to issue instructions with respect to the matters set forth in Sections 2 and 3 hereof, sole power of disposition, sole power of conversion, sole power to demand appraisal rights and sole power to enter into and perform all of his, her or its obligations under this Agreement, in each case, with respect to all of the Existing Shares set forth on Schedule I hereto, with no limitations, qualifications or restrictions on such rights.
(iv) If Stockholder acquires Beneficial Ownership but not record ownership, of any outstanding shares of Common Stock after the date hereof and prior to the termination of this Agreement, whether upon the exercise of options, warrants or rights, the conversion or exchange of convertible or exchangeable securities, or by means of purchase, dividend or distribution or otherwise, Stockholder shall:
(1) on or prior to the acquisition of Beneficial Ownership of such shares or, if later, as soon as practicable after Stockholder has actual knowledge that Stockholder has acquired Beneficial Ownership thereof, direct and use commercially reasonable efforts to cause the record owner of such shares to agree in writing to be bound by the terms hereof, in form and substance reasonably satisfactory to Parent; and
(2) direct and use commercially reasonable efforts to cause the record owner of such shares to (A) validly tender such shares to Merger Sub pursuant to and in accordance with the terms of the Offer, and not to withdraw such shares from the Offer, at the time or times and in the same manner as provided for the Shares in Section 2, and (B) vote such shares in the same manner as provided for the Shares in Section 3.
(b) Power; Binding Agreement.
(i) Stockholder has the full legal capacity, power and authority to enter into and perform all of Stockholder’s obligations under this Agreement. The execution, delivery and performance of this Agreement by Stockholder will not violate any other agreement to which Stockholder is a party, including any voting agreement, stockholders agreement or voting trust.
(ii) This Agreement has been duly and validly executed and delivered by Stockholder and constitutes a valid and binding agreement of Stockholder, enforceable against Stockholder in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws relating to creditors’ rights and to general principles of equity. There is no beneficiary or holder of a voting trust certificate or other interest of any trust of which Stockholder is Trustee whose consent is required for the execution and delivery of this Agreement or the consummation by Stockholder of the transactions contemplated hereby. If Stockholder is married and Stockholder’s Shares constitute community property, this Agreement has been duly authorized, executed and delivered by, and constitutes a valid and binding agreement of, Stockholder’s spouse, enforceable against such person in accordance with its terms.
(c) No Conflicts. Except for filings under the HSR Act, any other Antitrust Laws or the Exchange Act, if applicable, (i) no filing with, and no permit, authorization, consent or approval of, any state or federal public body or authority is necessary for the execution of this Agreement by Stockholder and the consummation by Stockholder of the transactions contemplated hereby and (ii) none of the execution and delivery of this Agreement by Stockholder, the consummation by Stockholder of the transactions contemplated hereby or compliance by Stockholder with any of the provisions hereof shall (A) conflict with or result in any breach of any applicable organizational documents of Stockholder, if any, (B) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any material Contract or other material instrument or obligation of any kind to which Stockholder is a party or by which Stockholder or any of Stockholder’s properties or assets may be bound, or (C) violate in any material respect any Law or Order applicable to Stockholder or any of Stockholder’s properties or assets.
(d) No Finder’s Fees. No broker, investment banker, financial adviser or other Person is entitled to any broker’s, finder’s, financial adviser’s or other similar fee or commission from Stockholder in connection with the transactions contemplated hereby based upon arrangements made by Stockholder.
(e) No Solicitation. Stockholder shall not, in his, her or its capacity as such, directly or indirectly, solicit, initiate, endorse or knowingly take any actions to encourage or facilitate (including by way of furnishing non-public information) any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal or any inquiry, proposal or offer that is reasonably likely to result in an Acquisition Proposal, except as permitted by Section 5.3 of the Merger Agreement. If Stockholder receives any such inquiry or proposal, then Stockholder shall promptly advise the Company of the existence thereof. Stockholder will immediately cease and cause to be terminated all existing discussions or negotiations with any Person (other than Parent and its affiliates) conducted by Stockholder heretofore with respect to any Acquisition Proposal.
(f) Restrictions on Transfer, Proxies and Non-interference. Except as applicable in connection with the transactions contemplated by Section 2 hereof, Stockholder shall not, directly or indirectly: (i) except as contemplated by this Agreement, offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter into any Contract or other arrangement or understanding with respect to, or consent to the offer for sale, sale, transfer, trade, pledge, encumbrance, assignment or other disposition of, any or all of the Shares or any interest therein; (ii) except as contemplated by this Agreement, grant any proxies or powers of attorney, deposit any Shares into a voting trust or enter into a voting agreement with respect to any Shares; or (iii) take any action that would make any representation or warranty of Stockholder contained herein untrue or incorrect or have the effect of preventing or disabling Stockholder from performing Stockholder’s obligations under this Agreement.
(g) Waiver of Appraisal Rights. Stockholder hereby waives any rights of appraisal or rights to dissent from the Merger that Stockholder may have.
(h) Reliance on Agreement. Stockholder understands and acknowledges that Parent is entering into, and causing Merger Sub to enter into, the Merger Agreement in reliance upon Stockholder’s execution and delivery of this Agreement and acknowledges that this Agreement is granted in consideration for the execution and delivery of the Merger Agreement by Parent and Merger Sub.
5. Parent and Merger Sub Representations and Warranties. As of the date of this Agreement, Parent and Merger Sub each hereby represent and warrant as follows:
(a) Power; Binding Agreement.
(i) Each of Parent and Merger Sub has the full legal capacity, power and authority to enter into and perform all of their respective obligations under this Agreement. The execution, delivery and performance of this Agreement by Parent and Merger Sub will not violate any other agreement to which Parent or Merger Sub is a party.
(ii) This Agreement has been duly and validly executed and delivered by each of Parent and Merger Sub and constitutes a valid and binding agreement of Parent and Merger Sub, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization and other laws relating to creditors’ rights and to general principles of equity.
(b) No Conflicts. Except for filings under the HSR Act, any other Antitrust Laws or the Exchange Act, if applicable, (i) no filing with, and no permit, authorization, consent or approval of, any state or federal public body or authority is necessary for the execution of this Agreement by Parent and Merger Sub and the consummation by Parent or Merger Sub of the transactions contemplated hereby and (ii) none of the execution and delivery of this Agreement by Parent and Merger Sub, the consummation by Parent and Merger Sub of the transactions contemplated hereby or compliance by Parent and Merger Sub with any of the provisions hereof shall (A) conflict with or result in a breach of any applicable organizational documents of Parent or Merger Sub, if any, (B) result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any material Contract or other material instrument or obligation of any kind to which Parent or Merger Sub is a party or by which Parent or Merger Sub or any of their respective material properties or assets may be bound, or (C) violate in any material respect any Law or Order applicable to Parent or Merger Sub or any of Parent’s or Merger Sub’s respective material properties or assets.
6. No Transfer Requests. Stockholder covenants and agrees that Stockholder shall not request that the Company, and Company shall not, register the transfer (book-entry or otherwise) of any certificate or uncertificated interest representing any of Stockholder’s Shares, unless such transfer is made in compliance with this Agreement (including the provisions of Sections 2 and 4(f) hereof). While this Agreement is in effect, Stockholder will notify Parent promptly (and in any event within two Business Days after the acquisition thereof) if Stockholder acquires legal or Beneficial Ownership of any Shares after the date of this Agreement.
7. Termination. The covenants, agreements, representations and warranties contained herein shall terminate upon the earliest of (i) the Effective Time (except for Section 4(g), which shall continue in effect after the Effective Time), (ii) the termination or expiration of the Offer without Merger Sub purchasing all shares of Common Stock tendered pursuant to the Offer in accordance with its terms, (iii) termination of the Merger Agreement in accordance with its terms, or (iv) an Adverse Amendment; provided, however, that (i) nothing herein shall relieve any party from liability for any breach of this Agreement, and (ii) this Section 7, Section 9 and Section 10 shall survive any termination of this Agreement.
8. Stockholder Capacity. No Person executing this Agreement who is or becomes during the term hereof a director of the Company makes any agreement or understanding herein in his or her capacity as such director. Stockholder is signing this Agreement solely in his or her capacity as the record and beneficial owner of, or the trustee of a trust whose beneficiaries are the beneficial owners of, Shares.
9. Miscellaneous.
(a) Entire Agreement. This Agreement, together with the Merger Agreement and the other documents referred to herein, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and the obligations hereunder shall attach to Stockholder’s Shares and shall be binding upon any Person to which legal or Beneficial Ownership of such Shares shall pass, whether by operation of law or otherwise, including Stockholder’s heirs, guardians, administrators or successors. Notwithstanding any transfer of Shares, the transferor shall remain liable for the performance of all obligations of the transferor under this Agreement.
(c) Assignment. This Agreement may not be assigned by any of the parties, by operation of law or otherwise, without the prior written consent of all of the other parties to this Agreement; provided, that Parent may assign, its rights and obligations hereunder to any direct or indirect wholly owned subsidiary of Parent, but no such assignment shall relieve Parent of its obligations hereunder if such assignee does not perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated, except upon the execution and delivery of a written agreement executed by Parent, Merger Sub, Stockholder and, if creating or changing obligations of the Company, the Company.
(e) Further Assurances. From time to time prior to the termination of this Agreement, at any party’s reasonable request and without further consideration, each party hereto shall execute and deliver such additional documents and take all such further lawful action as may be necessary or desirable to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.
(f) Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be delivered personally, facsimile with confirmation of receipt, or by next day courier service, providing proof of delivery. Any such notice shall be effective upon receipt, if delivered personally or by facsimile, or one day after delivery to a courier service for next-day delivery. All communications hereunder shall be delivered to the respective parties at the following addresses:
If to Stockholder:
[Address]
Attention: [_______]
Facsimile:
with a copy to:
[Address]
Attention: [_______]
Facsimile:
If to Parent or Merger Sub:
Crane Co.
100 First Stamford Place
Stamford, Connecticut 06902
Attention: Augustus I. DuPont
Fax: (203) 363-7350
with a copy to:
K&L Gates LLP
599 Lexington Avenue
New York, New York 10022
Attention: Eric Simonson
Fax: (212) 536-3901
If to Company:
Merrimac Industries, Inc.
41 Fairfield Place
West Caldwell, New Jersey 07006
Attention: Mason N. Carter
Fax: (973) 882-5989
with a copy to:
Katten Muchin Rosenman LLP
575 Madison Avenue
New York, New York 10022
Attention: David H. Landau
Fax: (212) 940-8776
or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above.
(g) Severability. Whenever possible, each provision or portion of any provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable Law but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or portion of any provision in such jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.
(h) Specific Performance. Stockholder agrees that irreparable damage would occur and that Parent and Merger Sub would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed in accordance with the terms hereof or were otherwise breached. It is accordingly agreed that Parent and Merger Sub shall be entitled to an injunction or injunctions to prevent breaches by Stockholder of this Agreement and to enforce specifically the terms and provisions of this Agreement in addition to any other remedy at law or equity.
(i) Remedies Cumulative. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any thereof by any party shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.
(j) No Waiver. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance.
(k) No Third Party Beneficiaries. This Agreement is not intended to be for the benefit of, and shall not be enforceable by, any Person who or which is not a party hereto.
(l) Governing Law; Jurisdiction.
(i) This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
(ii) Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware).
(iii) Each of the parties hereby irrevocably and unconditionally submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts. Each of the parties hereby irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with this Section 9(l), (b) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by the applicable Law, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(m) Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(n) Headings. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
(o) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same Agreement.
[Signature pages follow.]
IN WITNESS WHEREOF, Parent, Merger Sub, Stockholder and the Company have caused this Agreement to be duly executed as of the day and year first above written.
CRANE CO.
By: ________________
Name:
Title:
CRANE MERGER CO.
By: ________________
Name:
Title:
[STOCKHOLDER]
By: ________________
Name:
Title:
MERRIMAC INDUSTRIES, INC.
By: ________________
Name:
Title:
SCHEDULE I
