AMENDMENT NO. 5 TO RIGHTS AGREEMENT
Amendment No. 5 dated as of February 28, 2002 ("Amendment No. 5") to
the Rights Agreement dated as of March 9, 1999, as amended on June 9, 1999,
April 7, 2000, October 26, 2000 and February 21, 2001 (the "Rights Agreement"),
between Merrimac Industries, Inc., a Delaware corporation (the "Company"), and
Mellon Investor Services LLC (f.k.a. ChaseMellon Shareholder Services, L.L.C.),
a New Jersey limited liability company, as Rights Agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement; and
WHEREAS, the Board of Directors of the Company, in accordance with
Section 27 of the Rights Agreement, deems it desirable and in the best interests
of the Company and its shareholders to amend the Rights Agreement as set forth
herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
(a) For purposes of this Amendment No. 5, capitalized terms used herein
and not otherwise defined shall have the meanings indicated in the Rights
Agreement. Each reference to "hereof", "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other similar
reference contained in the Rights Agreement shall refer to the Rights Agreement
as amended hereby.
(b) Section 1(i) of the Rights Agreement is hereby amended and restated
in its entirety as follows:
"(i) "Exempt Person" shall mean (i) the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or any Subsidiary of the
Company, or any entity holding Common Shares for or pursuant to the terms of any
such plan, (ii) William D. Witter, Inc., a New York corporation registered as an
investment advisor under the Investment Advisers Act of 1940 ("Witter, Inc."),
and its Affiliates and Associates (other than Charles F. Huber, II); provided,
that Witter, Inc., together with its Affiliates and Associates (other than
Charles F. Huber, II), are not the Beneficial Owners of more than 15% of the
Common Shares of the Company then outstanding, (iii) Ericsson Holding
International, B.V., a Netherlands corporation ("Ericsson"), and its Affiliates
and Associates; provided, that Ericsson, together with its Affiliates and
Associates, are the Beneficial Owners of only Common Shares purchased, or Common
Shares converted from warrants purchased, from the Company pursuant to a letter
agreement dated as of April 7, 2000, and a Subscription Agreement for Common
Stock and Warrants dated as of October 26, 2000 among Ericsson and the
Company,(iv) Adam Smith Investment Partners, L.P., a Delaware limited
partnership ("Adam Smith"), and its Affiliates and
Associates; provided that Adam Smith, together with its Affiliates and
Associates, are the Beneficial Owners of only Common Shares purchased, or Common
Shares converted from warrants purchased, from the Company pursuant to a
Subscription Agreement for Common Stock and Warrants dated as of October 26,
2000 among the Company, Adam Smith, Adam Smith Ltd. B.V., a British Virgin
Islands corporation, and other investors executing the same and (v) Dupont
Chemical and Energy Operations, Inc. ("DCEO"), a Delaware corporation and
wholly-owned subsidiary of E.I. Du Pont De Nemours and Company, a Delaware
corporation ("DuPont"), and its Affiliates and Associates; provided, that DCEO,
together with its Affiliates and Associates, including Dupont, are the
Beneficial Owners of only Common Shares purchased from the Company pursuant to a
Subscription Agreement dated as of February 28, 2002 among DCEO, DuPont and the
Company.
SECTION 2. BENEFITS OF THIS AGREEMENT. Nothing in this Amendment No. 5
shall be construed to give to any Person other than the Company, the Rights
Agent and the registered holders of the Rights any legal or equitable right,
remedy or claim under this Amendment No. 5, but this Amendment No. 5 shall be
for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights.
SECTION 3. SEVERABILITY. If any term, provision or restriction of this
Amendment No. 5 is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions and
restrictions of this Amendment No. 5 shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
SECTION 4. GOVERNING LAW. This Amendment No. 5 shall be deemed to be a
contract made under the laws of the State of New Jersey and for all purposes
shall be governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such State;
provided, however, that all provisions regarding the rights, duties and
obligations of the Rights Agent shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed entirely within such State.
SECTION 5. COUNTERPARTS. This Amendment No. 5 may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
SECTION 6. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Amendment No. 5 are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 7. RIGHTS AGREEMENT AS AMENDED. This Amendment No. 5 shall be
effective as of the date hereof and, except as set forth herein, the Rights
Agreement shall remain in full force and effect and be otherwise unaffected
hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5
to be duly executed and attested, all as of the day and year first above
written.
MERRIMAC INDUSTRIES, Inc.
By /s/ Robert V. Condon
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Name: Robert V. Condon
Title: Vice President, Finance and
Chief Financial Officer
MELLON INVESTOR SERVICES LLC,
as Rights Agent
By /s/ Yvonne D. Benn
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Name: Yvonne D. Benn
Title: Client Service Manager
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