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.
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(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.
(a) Stockholder
hereby agrees to validly tender or cause to be tendered to Merger Sub pursuant
to and in accordance with the terms of 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 under the Exchange Act, the number of outstanding
shares of Common Stock Beneficially Owned by Stockholder as set forth on Schedule I hereto
(the “Existing Shares”),
and not to withdraw the Existing Shares, or cause the Existing Shares to be
withdrawn, from the Offer at any time following such tender (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).
(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”).
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(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:
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(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.
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(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.
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(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.
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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.
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(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.
000 Xxxxx
Xxxxxxxx Xxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Attention: Xxxxxxxx
X. XxXxxx
Fax: (000)
000-0000
with a
copy to:
K&L
Gates LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxx
Xxxxxxxx
Fax: (000)
000-0000
If to
Company:
Merrimac
Industries, Inc.
00
Xxxxxxxxx Xxxxx
Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention:
Xxxxx X. Xxxxxx
Fax: (000)
000-0000
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with a
copy to:
Xxxxxx
Xxxxxx Rosenman LLP
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxxxx
Fax: (000)
000-0000
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.
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(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.]
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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:
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SCHEDULE
I
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