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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
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FORM
8-K
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CURRENT
REPORT
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Pursuant
to Section 13 OR 15(d) of the Securities Exchange Act of
1934
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of Report (Date of earliest event reported) December 23,
2009 |
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Merrimac
Industries, Inc.
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(Exact
name of registrant as specified in its
charter)
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Delaware
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0-11201
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22-1642321
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer
Identification
No.)
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41
Fairfield Place, West Caldwell, New Jersey
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07006
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code (973) 575-1300
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(Former
name or former address, if changed since last
report.)
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Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01 Entry into a Material
Definitive Agreement.
Merger
Agreement
On December 23, 2009, Merrimac
Industries, Inc., a Delaware corporation (“Merrimac” or the “Company”), entered
into an Agreement and Plan of Merger (the “Merger Agreement”) with Crane Co., a
Delaware corporation (“Parent”), and Crane Merger Co., a Delaware corporation
and a wholly-owned subsidiary of Parent (“Purchaser”).
Pursuant to the Merger Agreement, upon
the terms and subject to the conditions thereof:
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Purchaser
will commence a tender offer (the “Offer”) by no later than January 8,
2010, to acquire all of the outstanding shares of common stock, par value
$.01, of the Company, including the associated common stock purchase
rights (collectively, the “Shares”), at a purchase price of $16.00 per
share, net to the holder in cash (the “Offer Price”), subject to any
required withholding of taxes; and
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as
soon as practicable after the consummation of the Offer and subject to the
satisfaction or waiver of certain conditions set forth in the Merger
Agreement, Purchaser will merge with and into the Company (the “Merger”)
and the Company will become a wholly-owned subsidiary of Parent. In the
Merger, the Shares remaining outstanding following the consummation of the
Offer, other than Shares held by Parent or its subsidiaries or by
stockholders who have validly exercised their appraisal rights under
Delaware law, will be converted into the right to receive the Offer
Price.
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The obligation of Purchaser to accept
for payment and pay for the Shares tendered in the Offer is subject to the
satisfaction or waiver of a number of conditions set forth in the Merger
Agreement, including that the number of the outstanding Shares that have been
validly tendered and not properly withdrawn, together with any Shares owned by
Parent or its subsidiaries, equals at least a majority of the Shares on a
fully-diluted basis.
Pursuant to the Merger Agreement and
subject to applicable law, the Company has granted to Purchaser an option (the
“Top-Up Option”) to purchase a number of Shares (up to 19.9% of the Company’s
then outstanding common stock), that, when added to the number of Shares owned
by Purchaser immediately prior to such exercise, shall constitute at least one
Share more than 90% of the number of Shares outstanding after such exercise. The
per share exercise price of the Top-Up Option is equal to the Offer Price. The
Top-Up Option is intended to expedite the timing of the completion of the Merger
by effecting the Merger pursuant to Delaware’s “short form” merger
statute. Following the Offer and, if necessary, the exercise of the
Top-Up Option, if the Purchaser does not own at least 90% of the Shares, a vote
of the stockholders of Merrimac will be required to consummate the
Merger. In such case, the approval of the Merger at a meeting of the
stockholders of Merrimac would be assured because of the Purchaser’s ownership
of at least a majority of the Shares following completion of the
Offer.
The Merger Agreement contains customary
representations and warranties of the Company, Parent and Purchaser made to each
other as of specific dates. The assertions embodied in those representations and
warranties were made solely for purposes of the contract among the Company,
Parent and Purchaser and may be subject to important qualifications and
limitations agreed to by the Company, Parent and Purchaser in connection with
the negotiated terms. Moreover, some of those representations and warranties may
not be accurate or complete as of any specified date, may be subject to a
contractual standard of materiality different from those generally applicable to
stockholders or may have been used for purposes allocating risk among the
Company, Parent and Purchaser rather than establishing matters as
facts.
The closing of the Merger is subject to
customary closing conditions. The Merger Agreement includes customary
covenants of the Company, Parent and Purchaser. The Company has agreed to
operate its business in the ordinary course until the Merger is consummated. The
Company has agreed not to solicit or initiate discussions with third parties
regarding other proposals to acquire the Company and to certain restrictions on
its ability to respond to any such proposal. The Merger Agreement also includes
customary termination provisions for both the Company and Parent and provides
that, in connection with the termination of the Merger Agreement under specified
circumstances, the Company will be required to pay Parent a termination fee of
$2 million and expenses of $1 million.
Upon completion of the Offer, each
unvested option to purchase Merrimac common stock granted by Merrimac and each
restricted stock award with respect to Merrimac common stock will vest and, in
the case of options, become exercisable. Upon consummation of the Merger, each
option to purchase Merrimac common stock that remains outstanding following the
consummation of the Offer will be cancelled, and the holder of each such option
will be entitled to receive an amount in cash equal to the product of the excess
of the Offer Price over the exercise price per share of such option, if any,
multiplied by the total number of Shares subject to such option. In addition,
each share of Merrimac common stock issued in settlement of restricted stock
awards will be converted into the right to receive a cash payment equal to the
Offer Price at the effective time of the Merger.
A copy of
the Merger Agreement is attached as Exhibit 2.1 to
this report and is incorporated herein by reference. The foregoing description
of the Merger Agreement does not purport to be complete and is qualified in its
entirety by reference to the Merger Agreement.
Tender
and Voting Agreements
In
connection with the Merger Agreement, certain officers, directors and principal
stockholders of the Company (as listed below in Exhibit 10.1 of Item 9.01) (the
“Signing Stockholders”) that own, in the aggregate, approximately 38% of the
Company’s outstanding common stock, entered into tender and voting agreements
(the “Tender Agreements”) with Parent, Purchaser and the Company, concurrently
with the execution and delivery of the Merger Agreement, whereby each Signing
Stockholder has agreed, among other things, (i) to tender or cause to be
tendered in the Offer all Shares beneficially owned or subsequently acquired,
(ii) not to withdraw the Shares tendered by it, him or her in the Offer prior to
the termination of the Offer, the termination of the Merger Agreement or an
Adverse Amendment (as defined in the Tender Agreements) and (iii) to vote
in favor of adoption and approval of the Merger Agreement and the transactions
contemplated by the Merger Agreement, and against any proposal opposing to or in
competition with the consummation of the Merger or the transactions contemplated
by the Merger Agreement.
The
Tender Agreements will terminate upon the earlier of (i) the effective time of
the Merger, (ii) the termination or expiration of the Offer without Purchaser
purchasing all of the Shares tendered pursuant to the Offer in accordance with
its terms, (iii) the termination of the Merger Agreement in accordance with its
terms, and (iv) an Adverse Amendment.
The
foregoing description of the Tender Agreements does not purport to be complete
and is qualified in its entirety by reference to the Tender Agreements, the form
of which is filed as Exhibit 10.1 hereto and is incorporated herein by
reference.
Amendment
of Rights Agreement
The
disclosure in Item 3.03 is incorporated in this Item 1.01 by
reference.
Notice
to Investors
The
tender offer for the outstanding Shares referred to in this report has not yet
commenced. This report is neither an offer to purchase nor a solicitation of an
offer to sell any securities. The solicitation and the offer to buy shares of
the Company’s common stock will be made pursuant to an offer to purchase and
related materials that Purchaser intends to file with the U.S. Securities and
Exchange Commission. At the time the Offer is commenced, Purchaser will
file a Tender Offer Statement on Schedule TO with the U.S. Securities
and Exchange Commission, and thereafter the Company will file a
Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the
Offer. The Tender Offer Statement (including an Offer to Purchase, a related
Letter of Transmittal and other offer documents) and the
Solicitation/Recommendation Statement will contain important information that
should be read carefully and considered before any decision is made with respect
to the Offer. These materials will be sent free of charge to all stockholders of
the Company. In addition, all of these materials (and all other materials filed
by the Company with the U.S. Securities and Exchange Commission) will be
available at no charge from the U.S. Securities and Exchange Commission through
its website at www.sec.gov. Investors and security holders may also obtain free
copies of the documents filed with the U.S. Securities and Exchange Commission
by the Company at www.merrimacind.com.
Forward-Looking
Statements
This
report contains “forward-looking statements” that involve significant risks and
uncertainties. All statements other than statements of historical fact are
statements that could be deemed forward-looking statements, including:
statements regarding the anticipated timing of filings and approvals relating to
the transaction; statements regarding the expected timing of the completion of
the transaction; statements regarding the ability to complete the transaction
considering the various closing conditions; any statements of expectation or
belief; and any statements of assumptions underlying any of the foregoing.
Investors and security holders are cautioned not to place undue reliance on
these forward-looking statements. Actual results could differ materially from
those currently anticipated due to a number of risks and uncertainties. Risks
and uncertainties that could cause results to differ from expectations include: uncertainties as
to the timing of the Offer and Merger; uncertainties as to how many of the
Company’s stockholders will tender their stock in the offer; the risk that
competing offers will be made; the possibility that various closing conditions
for the transaction may not be satisfied or waived, including that a
governmental entity may prohibit, delay or refuse to grant approval for the
consummation of the transaction; the effects of disruption from the transaction
making it more difficult to maintain relationships with employees, licensees,
other business partners or governmental entities; other business effects,
including the effects of industry, economic or political conditions outside of
the Company’s control; transaction costs; actual or contingent liabilities; and
other risks and uncertainties discussed in documents filed with the U.S.
Securities and Exchange Commission by the Company, as well as the tender offer
documents to be filed by Purchaser and the Solicitation/Recommendation Statement
to be filed by the Company. All of the materials related to the offer (and all
other offer documents filed with the U.S. Securities and Exchange Commission)
will be available at no charge from the U.S. Securities and Exchange Commission
through its website at www.sec.gov. Investors and security holders may also
obtain free copies of the documents filed with the U.S. Securities and Exchange
Commission by the Company at www.merrimacind.com. The Company does not undertake
any obligation to update any forward-looking statements as a result of new
information, future developments or otherwise, except as expressly required by
law.
On
December 23, 2009, concurrent with the execution of the Merger Agreement, the
Company and American Stock Transfer & Trust Company, LLC, as Rights Agent
(the "Rights
Agent"), executed the tenth amendment (the “Amendment”) to the
Company’s Rights Agreement (the "Rights Agreement"),
dated as of March 9, 1999, as amended as of June 9, 1999, April 7, 2000, October
26, 2000, February 21, 2001, February 28, 2002, September 18, 2002, December 13,
2004, March 14, 2007 and March 19, 2009, which provides that none of
(i) approval, execution, delivery and/or adoption of the Merger Agreement,
(ii) the acceptance for payment or purchase by Purchaser of Shares pursuant
to the Offer, (iii) the exercise of the Top-Up Option, (iv) the
consummation of any other transactions contemplated by the Merger Agreement,
including, but not limited to, the Offer and the Merger or (v) the
announcement of any of the Merger Agreement, the Offer, the Merger or any other
transactions contemplated by the Merger Agreement, will result in the rights
becoming exercisable or in Parent or its affiliates and associates being deemed
an “Acquiring Person” or any of the foregoing events resulting in a “Shares
Acquisition Date” or “Distribution Date” under the Rights
Agreement.
A copy of
the Amendment is attached as Exhibit 4.1 to
this report and is incorporated herein by reference. The foregoing description
of the Amendment does not purport to be complete and is qualified in its
entirety by reference to the Amendment.
On
December 23, 2009, a press release was issued announcing the execution of the
Merger Agreement, a copy of which is filed as Exhibit 99.1 to
this report and incorporated herein by reference.
Item
9.01 Financial Statements
and Exhibits.
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2.1
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Agreement
and Plan of Merger, dated as of December 23, 2009, by and among Crane
Co.,Crane Merger Co. and Merrimac Industries, Inc.
(1)
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4.1
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Amendment
No. 10 to the Company’s Rights Agreement, dated as of December 23, 2009,
between the Company and American Stock Transfer & Trust Company,
LLC.
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10.1
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Form
of Tender and Voting Agreement, by and among Crane Co., Crane Merger Co.,
Merrimac Industries, Inc. and each of the following: E.I.
DuPont de Nemours and Company, Mason Carter, Edward Cohen, Ludwig Kuttner,
Fernando Fernandez, Harold Raveche, Arthur Oliner and Joel
Goldberg.
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99.1
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Press
Release, dated December 23, 2009
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(1)
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The
schedules to the Merger Agreement have been omitted from this filing
pursuant to Item 601(b)(2) of Regulation S-K. The Company will
furnish copies of any of such schedules to the U.S. Securities and
Exchange Commission upon request.
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Signature
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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MERRIMAC
INDUSTRIES, INC. |
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By:
/s/ J. Robert
Patterson
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Name:
J. Robert Patterson |
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Title:
Vice President – Finance and Chief Financial Officer |
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