SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit
10.1
SEPARATION AGREEMENT AND
GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL
RELEASE (the
“Agreement”) is dated as of December 1, 2008, by and between Merrimac Industries,
Inc., with offices at 00 Xxxxxxxxx Xxxxx, Xxxx Xxxxxxxx, Xxx
Xxxxxx 00000 (“Merrimac”), and Xxxxxx X. Xxxxxx,
residing at 000
Xxxxxxxx Xxxx,
Xxxxxx, Xxx Xxxxxx 00000
(“Xxxxxx”).
WHEREAS, Xxxxxx’x last day of active
work and employment with Merrimac was November 6, 2008. Since then,
Xxxxxx has been receiving vacation pay as set forth below; and
WHEREAS, Xxxxxx and Merrimac agree
that it is in the best interests of both parties to enter into this
Agreement.
NOW, THEREFORE, in consideration of
the premises and covenants set forth in this Agreement and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Xxxxxx and Merrimac agree as follows:
1A. In
consideration of Xxxxxx’x representations, acknowledgments, agreements and
obligations set forth in this Agreement, Merrimac agrees to make certain
payments (less applicable federal and state taxes and withholdings) and offer
certain benefits to Xxxxxx as follows:
| 1 | ) |
Vacation
pay of forty-four (44) days commencing November 7, 2008, and payable on a
weekly basis commencing November 13, 2008, until paid in
full.
|
$ | 31,313.92 | |||
| 2 | ) |
After
payment of all vacation pay in #1 above, salary continuation/severance pay
of 33.33% of weekly base salary for twenty-six (26) weeks at the rate of
$1,186.01 per week.
|
$ | 30,836.26 | |||
| 3 | ) |
After
payment of all salary continuation/severance pay in #2 above, salary
continuation/severance pay of 40% of weekly base salary for forty-three
and 0.336 (43.336) weeks at the rate of $1,423.36 per
week.
|
$ | 61,682.14 | |||
| 4 | ) |
Merrimac
to pay premiums for current healthcare benefits provided to Xxxxxx and his
spouse under its existing plans (as may be amended) for a period of
fifty-two (52) weeks.
|
$ | 12,331.08 | |||
| Value | |||||||
|
Total
|
$ | 136,163.40 |
1B. All
salary continuation/severance payments under Par. 1A hereof shall be payable in
accordance with Merrimac's normal payroll practices.
2A. Notwithstanding the schedule of
salary continuation/severance payments set forth in Par 1A(2) and (3) above, in
the event Xxxxxx files a claim with Unum for short term disability benefits and
such claim has been denied and all pre-litigation appeal periods have expired,
or in the event Xxxxxx decides not to file any claim with Unum for short term
disability benefits, and upon Xxxxxx’x written notice to Merrimac of the
foregoing, Merrimac shall provide salary continuation/severance pay of
$92,518.40, payable at the rate of $2,312.96 per week for forty (40) weeks, in
lieu of the payments set forth in Par. 1A(2) and (3) above; provided, however,
such salary continuation/severance pay as set forth in this Par. 2A shall only
commence after the payment in full of all vacation pay set forth in Par. 1A(1)
above. In the event any salary continuation/severance payments have
already been made to Xxxxxx, then the forty (40) weekly payments of salary
continuation/severance pay shall be equally and proportionately reduced to
account for such payments. All salary continuation/severance payments
under Par. 2A shall be subject to applicable federal and state tax deductions
and withholdings.
2B. Except for vacation pay, Xxxxxx
acknowledges that he is receiving the above described payments and benefits
under this Agreement that he would not otherwise be entitled to receive but for
the execution of this Agreement. Xxxxxx further acknowledges and
agrees that no other wages, compensation, benefits, salary continuation or
severance pay, incentives, bonuses, commissions, vacation pay, monies, damages
or relief, of any kind or nature whatsoever, are due him.
2C.
Xxxxxx understands and agrees that Merrimac shall not make any payments or
provide any benefits under this Agreement until seven (7) days after Merrimac
has received this document duly executed by Xxxxxx. As used in this
Agreement, the term "days" shall mean calendar days.
3. In
consideration of the payments and benefits to be provided under this Agreement,
Xxxxxx hereby releases and forever discharges Merrimac, its subsidiaries,
affiliates and related entities, and the present and former officers, directors,
employees, trustees, fiduciaries, administrators, agents, attorneys,
successors and assigns of Merrimac and its subsidiaries, affiliates and related
entities (collectively, the “Releasees”), from and against any and all claims,
demands, causes of action, suits, judgments, liabilities, damages, losses, costs
and expenses, of any kind or nature whatsoever, disputed or undisputed, known or
unknown, in law or in equity, which Xxxxxx ever had, now has, or hereafter may
have against the Releasees up to the date of execution of this Agreement,
including but not limited to: (a) any and all claims arising out of Xxxxxx’x
employment with Merrimac or the termination thereof; (b) any and all claims
under Title VII of the Civil Rights Act of 1964, as amended, Civil Rights Act of
1866, as amended, Age Discrimination in Employment Act of 1967, as amended,
Older Workers Benefit Protection Act, as amended, New Jersey Law Against
Discrimination, as amended, Employee Retirement Income Security Act of 1974, as
amended, Americans With Disabilities Act of 1990, as amended, Family and Medical
Leave Act, as amended, New Jersey Family Leave Act, as amended, and New Jersey
Conscientious Employee Protection Act, as amended; (c) any and all claims
arising out of wrongful discharge, intentional or negligent infliction of
emotional distress, personal injury, pain and suffering, injury to reputation,
defamation, misrepresentation, any other negligent or intentional torts,
harassment or retaliation; (d) any and all claims arising out of oral or written
representations, agreements, promises or assurances, or breach of any
express or implied contract; (e) any and all claims arising out of or under any
of Merrimac’s policies, plans, programs, procedures, handbooks or manuals; (f)
any and all claims arising out of or under any of Merrimac’s stock purchase,
stock option, severance, salary continuation or other incentive or compensation
policies, plans or programs; (g) any and all claims arising out of or under any
federal or state disability or handicap laws, or any and all claims against the
Releasees for short term or long term disability benefits; (h) any and all
claims arising out of or under any Merrimac sponsored life, health or other
insurance policies, plans or programs; (i) any and all claims arising out of or
under any Merrimac benefit or leave of absence policies, plans or
programs, or any employee benefit booklets; (j) any and all claims for
compensatory or punitive damages or attorneys fees or costs; or (k) any and all
claims arising out of or under any federal, state or local constitution,
statute, regulation, rule or principle of common law. Xxxxxx further
understands and acknowledges that he is not releasing any claims against the
Releasees that may arise after the date of execution of this Agreement. This
general release excludes any claim by Xxxxxx for accrued and vested rights under
the Merrimac sponsored 401(k) Plan, or any claim by Xxxxxx against Unum
insurance carrier for short term or long term disability benefits. In
no event shall the Releasees be liable to Xxxxxx for any short term or long term
disability benefits, or in connection with Xxxxxx’x filing or processing any
claims for any disability benefits, or for any decisions, determinations, or
denials of coverage by the Unum insurance carrier. Merrimac agrees to
complete any forms and provide any information reasonably required by Unum in
connection with any claim by Xxxxxx against Unum for short term or long term
disability benefits under the Unum Plan.
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4. Xxxxxx
acknowledges and agrees that neither this Agreement nor the execution thereof
nor the payment of any monies or provision of any benefits hereunder shall
constitute an admission of any liability or violation of any law, rule or
regulation by Merrimac, as to which Merrimac expressly denies any such liability
or violation.
5A.
Xxxxxx represents that as of the date of his execution of this Agreement, he has
not filed, instituted, submitted, asserted, initiated or participated in any
claim, complaint, action, suit, proceeding, charge, investigation or grievance
against any of the Releasees in any federal, state or local court, or
administrative, regulatory or investigative agency, or board, commission,
committee, legislative body or other forum.
5B.
Xxxxxx agrees that he shall fully cooperate with Merrimac in connection with any
claim, complaint, action, suit, proceeding, charge, investigation or grievance
brought by or against any of the Releasees.
5C.
Xxxxxx waives and releases any right to recover any monies, compensation,
benefits, damages, penalties or other relief of any kind or nature whatsoever in
any claim, complaint, action, suit, proceeding, charge, investigation or
grievance brought by Xxxxxx, any governmental agency, any Person or Entity (as
defined below) on Xxxxxx’x behalf, or which includes Xxxxxx in any class against
any of the Releasees.
5D.
Xxxxxx hereby resigns as an officer of Merrimac and shall promptly execute and
submit a formal resignation as may be requested by Merrimac.
6.
Notwithstanding anything contained in this Agreement to the contrary, nothing
set forth in this Agreement shall: (a) affect the rights of the Equal Employment
Opportunity Commission to enforce applicable age discrimination laws or conduct
any investigation or proceeding, or (b) interfere with the protected rights of
Xxxxxx under the Older Workers Benefit Protection Act.
7A. As
used in this Agreement, the term “Person or Entity” shall mean any person, firm,
association, partnership, company, corporation, governmental agency or any other
form of entity (collectively, “Person or Entity”), and the term “Agreement”
shall mean, collectively, this Separation Agreement and General Release, the
terms, conditions and provisions thereof, and the payments and benefits provided
thereunder.
7B.
Xxxxxx agrees to keep the Agreement, and the existence thereof, in strict
confidence, and shall not disclose, directly or indirectly, the Agreement or the
existence thereof to any Person or Entity; provided, however, Xxxxxx may
disclose the Agreement: (1) as permitted under Par. 6 hereof; (2) to Xxxxxx’x
attorney, accountant, financial advisor or spouse, provided Xxxxxx informs such
Person or Entity of the confidentiality obligations of this Par. 7 and requires
such Person or Entity to comply with such confidentiality obligations; (3) to
any governmental tax authority; or (4) as otherwise required by law or validly
issued subpoena or process. Xxxxxx represents that he has not
disclosed the Agreement, or the existence thereof, to any Person or Entity
except as permitted by this Par. 7B.
8A.
Xxxxxx represents and agrees that he has not, directly or indirectly, used,
copied or disclosed to any Person or Entity (except in connection with his
duties with Merrimac), and shall not, directly or indirectly, use, copy or
disclose to any Person or Entity, any confidential, proprietary or financial
information or trade secrets of Merrimac (the “Confidential Information” as
defined below).
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8B. As
used in this Agreement, the term “Confidential Information” shall include
without limitation any of Merrimac’s: (a) Multi-Mix® or other technology,
innovations, inventions, discoveries, improvements, ideas, developments,
technical or engineering information, data, data bases, software, computer
programs, drawings, plans, specifications, designs, processes, production
processes, sketches, photographs, techniques, know-how, knowledge, protocols,
procedures, test procedures, formulas, patterns, methods of doing business,
manuals, logs, prototypes or samples; (b) processes of making multi-layer
integrated circuits, or processes of making multi-function modules, or processes
of fusion bonding; (c) all other intellectual property; (d) client or customer
names, lists or information; (e) vendor or supplier names, lists, information or
purchasing systems; (f) costs, pricing, or pricing plans, strategies or
policies, or any financial reports, financial information or accounting systems;
(g) the terms of any past or current loans, credit facilities or bank
transactions; (h) sales or marketing plans, policies or strategies or any other
sales or marketing information; (i) quality control plans, strategies, policies,
procedures, protocols, tests, test results, test data or any other quality
information; (j) manufacturing plans, strategies, policies, operations or any
other manufacturing information; (k) human resources organization, plans or
policies or any other human resources information; (l) business plans,
strategies or policies or any other business information; (m) telephone or email
lists or information; or (n) any form of computer, software, electronic or other
information, records, documentation, files, reports, or notes relating to any of
the foregoing. This includes all written, oral, electronic, computer,
software, visual or any other form or media of Confidential Information
disclosed by or on behalf of Merrimac to Xxxxxx or which Xxxxxx has created,
developed, prepared or received during his employment with
Merrimac. All Confidential Information is and shall be the sole and
exclusive property of Merrimac. Notwithstanding the above, this
provision shall not preclude Xxxxxx from the use, copy or disclosure of
information which is in the public domain through no fault or breach of this
Agreement by Xxxxxx or from disclosure required by law or court
order.
8C. In
the event a subpoena or other process is issued by any Person or Entity to
Xxxxxx to produce or disclose any Confidential Information or the Agreement, or
provide testimony relating to Merrimac, Xxxxxx shall provide notice to Merrimac
with a copy of the subpoena or process at least ten (10) days prior to the due
date, and Xxxxxx shall not make any disclosure or provide any testimony until
Merrimac has had a reasonable opportunity to contest such subpoena or
process. Nothing contained in this Agreement shall affect
or impair any rights that Xxxxxx may have to indemnification for attorneys fees,
costs or expenses pursuant to applicable statutes, or under Merrimac’s Directors
and Officers Insurance Policy, Certificate of Incorporation or
Bylaws.
9. Xxxxxx
represents and acknowledges that he has returned all property of Merrimac, and
all property prepared, created, developed, generated or received by Xxxxxx
relating to Merrimac during Xxxxxx’x employment with Merrimac, including all
copies or duplicates thereof. Such property includes without
limitation any and all records, documentation, files, information, notes, plans,
policies, data, software, computers, computer user names and passwords,
voicemail codes, laptops, computer drives, computer disks, other intellectual
property, keys, identification cards, access cards, credit cards, Blackberry,
cell phones, supplies and equipment. Xxxxxx further represents and
acknowledges that he has no custody, possession or control of any of the
foregoing property.
10. To
induce Merrimac to enter into the Agreement and in consideration of the payments
and benefits provided by Merrimac to Xxxxxx under the Agreement, Xxxxxx agrees
that for a period of one (1) year after his execution of this
Agreement:
A. He
shall not, directly or indirectly: (1) engage in any activity, business or
service on his own behalf, or provide services to, or enter the employ of, or
become an owner, partner, principal, shareholder, investor, lender or otherwise
in any Person or Entity, that in whole or in part is competitive with or adverse
to the best interests of Merrimac; (2) recruit, solicit, entice or initiate
contact with any former, current or future employees of Merrimac for the purpose
of offering employment to such employees with any other Person or Entity; or (3)
solicit, interfere with, or endeavor to entice away from Merrimac any of its
employees, customers, suppliers, consultants, or sales or field
representatives.
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B. He
shall not, directly or indirectly: (1) seek a position on the Board of Directors
of Merrimac; (2) solicit proxies for the election of a member of the Board of
Directors of Merrimac; (3) join with any other person to form a “group” for
purposes of participating in any registration under Section 13(d) of the
Securities Exchange Act of 1934, as amended, and the rules promulgated
thereunder, with respect to shares of capital stock of Merrimac.
11A.
Except as otherwise provided in Par. 6 hereof, Xxxxxx agrees that he shall not,
directly or indirectly, file, institute, submit, assert, initiate or participate
in any claim, complaint, action, suit, proceeding, charge, investigation or
grievance against any of the Releasees in any federal, state or local court, or
administrative, regulatory or investigative agency, or board, commission,
committee, legislative body or other forum, based on any actions or omissions of
any of the Releasees arising on or prior to the date of Xxxxxx’x execution of
this Agreement.
11B.
Except as otherwise provided in Par. 6 hereof, Xxxxxx agrees that he shall not,
directly or indirectly, solicit, advise, encourage, induce, assist or support
any Person or Entity to file, institute, submit, present, assert, initiate or
participate in any claim, complaint, action, suit, proceeding, charge,
investigation or grievance against any of the Releasees in any federal, state or
local court, or administrative, regulatory or investigative agency, or board,
commission, committee, legislative body or other forum, based on any actions or
omissions of any of the Releasees arising on or prior to the date of Xxxxxx’x
execution of this Agreement.
12.
Xxxxxx agrees that he shall not, directly or indirectly, publish or otherwise
communicate in any manner whatsoever any comments, statements or other
information that could reasonably be interpreted as negative, critical,
derogatory, disparaging, harmful, injurious, discrediting, belittling or
defamatory to any of the Releasees, or to any of the Releasees’ products,
services, businesses, conduct of business, financial matters, securities,
reputations or shareholders. As used in this Agreement, the term
“publish or otherwise communicate” shall include without limitation: (a) the
making of any oral, written, visual, computer, electronic, telephonic,
telegraphic or other communication of any comments, statements or information;
(b) the use of email communications or the Internet, including without
limitation the posting, presentation, communication or other transmittal of any
message, comment, statement or information on any Internet media, sites, message
boards, platforms, blogging sites, chat rooms, websites or otherwise, or (c) any
other form of public disclosure or communication of any comments, statements or
information.
13A.
Xxxxxx acknowledges that a breach of any of his representations or agreements
under Par. 5, 7, 8, 9, 10, 11 or 12 of this Agreement will cause immediate and
irreparable injury to the Releasees for which a remedy at law or monetary
damages will be inadequate. In the event of any such actual or
threatened breach by Xxxxxx, Xxxxxx acknowledges that the Releasees shall be
entitled to temporary, preliminary and/or permanent injunctive relief: (a)
restraining such breach; (b) requiring Xxxxxx to comply with his representations
or agreements under Par. 5, 7, 8, 9, 10, 11 or 12 of this Agreement; or (c)
granting an appropriate decree of specific performance. Such
injunctive relief shall be granted without the necessity of: (d) showing actual
damages or that monetary damages would not afford an adequate remedy at law; or
(e) posting any bond or security.
13B. In
the event Xxxxxx breaches any of his representations or agreements under Par. 5,
7, 8, 9, 10, 11 or 12 of this Agreement and any of the Releasees asserts a claim
or counterclaim or files suit against Xxxxxx due to such breach, then any of the
Releasees shall also be entitled to recover from Xxxxxx damages, reasonable
attorneys fees and costs of suit if any of the Releasees prevail in such suit or
with respect to such claim or counterclaim. Further, in the event
Xxxxxx breaches any of his representations or agreements under Par. 5, 7, 8, 9,
10, 11 or 12 of this Agreement, Xxxxxx shall forfeit and Merrimac shall
immediately cease making or providing any further payments or benefits under
this Agreement, and Merrimac shall be entitled to recover all payments and
benefits that have been provided to Xxxxxx under this Agreement. All
rights and remedies of the Releasees under this Agreement and at law or equity
shall be cumulative.
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14.
Xxxxxx waives any claim for re-employment with Merrimac and shall not apply for
re-employment for any position.
15.
Xxxxxx represents and acknowledges that in executing this Agreement, he does not
rely and has not relied upon any representation, statement, promise, agreement
or assurance made by any of the Releasees, except as specifically set forth in
this Agreement.
16.
Xxxxxx acknowledges that Merrimac has entered into this Agreement in reliance on
and will, subsequent to the execution of this Agreement, reasonably rely on each
and every representation and acknowledgment made by him in this
Agreement. Xxxxxx affirms the truthfulness of each and every
representation and acknowledgment made herein.
17. This
Agreement has been negotiated and executed within the State of New Jersey and
shall be governed, construed and interpreted in all respects in accordance with
the laws of the State of New Jersey without giving effect to any conflict of law
rules. Except for injunctive relief sought by any of the Releasees,
any action to enforce, or which arises out of, or in any manner relates to, any
of the provisions of this Agreement shall be brought exclusively in the federal
or state courts of Essex County, New Jersey. The parties hereto
expressly consent to the jurisdiction of such courts, and to service of process
by certified mail in accordance with the notice provisions of Par. 20 hereof, or
by any other manner provided by the laws or Rules of Court of the federal or
state courts of New Jersey.
18A.
Xxxxxx
acknowledges that he has been given twenty-one (21) days from the date of
receipt of this Agreement to review and consider this
document. Xxxxxx may waive his right to the full twenty-one
(21) day review period and execute and return this Agreement prior to the
expiration of such twenty-one (21) day period. In the event Xxxxxx
fails to execute and return this Agreement to Merrimac within such twenty-one
(21) day review period, then this offer and Agreement shall be automatically
withdrawn without any further notice or action and become null and void in its
entirety. Xxxxxx and Merrimac also agree that any changes, whether material or
immaterial, to this Agreement shall not restart the running of such twenty-one
(21) day period.
18B. In
the event Xxxxxx fails to execute and return this Agreement within such
twenty-one (21) day review period, Xxxxxx shall not be entitled to any salary
continuation/severance payments or benefits from Merrimac.
18C.
Xxxxxx
understands and agrees that this Agreement shall not be effective or enforceable
for a period of seven (7) days following the date of Xxxxxx’x execution and
Merrimac’s receipt of this Agreement, and that Xxxxxx may revoke this Agreement
for any reason during this seven (7) day period by giving written notice of
revocation to Merrimac prior to the expiration of such seven (7) day
period. In the event of such revocation, this Agreement shall become
null and void in its entirety.
19. Xxxxxx is
advised to consult with an attorney of his choice at his own expense prior to
executing this Agreement. Xxxxxx represents and acknowledges that he
has been given sufficient time and opportunity to do so, that he has been
represented by the firm of Xxxxx X. Xxxxx, LLC in this matter, and that he has
received legal advice concerning the terms, conditions and provisions of this
Agreement prior to the execution thereof.
20. Any
notice required or permitted under this Agreement shall be in writing and
delivered personally or sent by certified mail, return receipt requested,
postage prepaid, addressed as follows:
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If to
Xxxxxx:
Xx. Xxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxx
Xxxxxx,
Xxx Xxxxxx 00000
If to
Merrimac:
Merrimac Industries, Inc.
00 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxx, Xxx
Xxxxxx 00000
Attn: Xx. Xxxxxxx
Xxxxx
21.
Xxxxxx represents and acknowledges that he has read this Agreement, fully
understands all of the provisions hereof, voluntarily and knowingly agrees to
all such provisions, and executes this Agreement of his own free will without
any duress or coercion. Xxxxxx further represents and acknowledges
that no other promise or assurance of any kind or nature whatsoever has been
made by any Person or Entity to cause him to execute this
Agreement. The enforceability of this Agreement is expressly
contingent upon Xxxxxx’x furnishing an affidavit, in a form acceptable to
Merrimac, by his physician stating that Xxxxxx is competent to execute this
Agreement.
22.
In the event any restriction or other provision of this Agreement is held by a
court of competent jurisdiction to be invalid, unenforceable or void for any
reason, but would be valid, effective and enforceable if such restriction or
provision, or part thereof, were revised or reduced in scope, then such
restriction or provision, or part thereof, shall apply with such appropriate
revision or reduction. If such restriction or other provision of this
Agreement, or part thereof, cannot be so revised or reduced in scope, then such
restriction or other provision, or part thereof, shall be deemed deleted and the
remaining provisions of this Agreement shall continue in full force and
effect.
23. This
Agreement sets forth the entire understanding between the parties hereto and
supersedes any and all prior agreements or understandings, written or oral,
between the parties hereto pertaining to the subject matter
hereof. The parties acknowledge that there are no verbal
understandings or agreements contrary to or in addition to the terms, conditions
or provisions of this Agreement. This Agreement shall not be
modified, altered or amended unless a writing is executed by both parties
hereto. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, executors, administrators,
legal representatives, successors and assigns.
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the dates set forth
below.
XXXXXX HAS READ THIS SEPARATION
AGREEMENT AND
GENERAL RELEASE, FULLY UNDERSTANDS IT,
VOLUNTARILY
AND KNOWINGLY AGREES TO ITS TERMS, AND
SIGNS IT OF
HIS OWN FREE WILL WITHOUT ANY COERCION
OR DURESS.
|
/s/ Xxxxxx X. Xxxxxx
|
Date of Execution: 12/04/2008
|
|
Xxxxxx X. Xxxxxx
|
State of
New Jersey)
County of
Xxxxxx) SS:
I certify
that on this 4th day of Dec., 2008, Xxxxxx X. Xxxxxx personally came before me
and acknowledged under oath, to my satisfaction, that he is the person who
executed the within document and thereupon did acknowledge that he signed and
delivered the same as his voluntary act and deed for the uses and purposes
expressed therein.
Signed
and sworn to before me on
this 4th
day of Dec., 2008.
/s/ Xxxxx X.
Xxxxxxx
(Notary
Public)
[Notarial
Seal]
MERRIMAC INDUSTRIES,
INC.:
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
|
|
Name:
|
Xxxxx
X. Xxxxxx
|
|
|
Title:
|
President
& CEO
|
Date of
Execution: December 5, 2008
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