MODIFICATION AGREEMENT
MODIFICATION AGREEMENT dated as of September 27, 2002, between Merrimac
Industries, Inc., a Delaware corporation ("Merrimac"), and Infineon Technologies
AG, a German corporation ("Infineon").
WHEREAS, Ericsson Holding International B.V. ("Ericsson") has entered
into an agreement with Infineon whereby Ericsson and its affiliated companies
have agreed to sell the microelectronics business (excluding optosemiconductors
and power modules, but including the RF power business) of the Ericsson Group
(the "Business") to Infineon and to assign to Infineon certain agreements
between Merrimac and Ericsson;
WHEREAS, in connection with the acquisition of the Business, Merrimac,
Ericsson and Infineon entered into that certain Consent and Waiver, effective as
of September 18, 2002, pursuant to which Merrimac consented to the assignment of
the agreements listed below, waived the application of the Merrimac's rights
plan, and made certain other representations, warranties convenants for the
benefit of Infineon with respect to the acquisition of the Business; and
WHEREAS, in connection with the acquisition of the Business, Infineon
and Merrimac have agreed to modify and amend the following agreements as set
forth herein: (i) the Letter Agreement, dated as of April 7, 2000 and amended as
of February 1, 2002, among Merrimac, Ericsson and Ericsson Microelectronics,
A.B. (the "Letter Agreement"); (ii) the Registration Rights Agreement, dated as
of April 7, 2000, between Merrimac and Ericsson (the "April Registration Rights
Agreement"); (iii) the Subscription Agreement for Common Stock and Warrants,
dated as of October 26, 2000, between Merrimac and Ericsson (the "Subscription
Agreement"); (iv) the Common Stock Purchase Warrant, dated as of October 26,
2000, issued by Merrimac to Ericsson (the "Warrant"); and (v) the Registration
Rights Agreement, dated as of October 26, 2000, between Merrimac and Ericsson
(the "October Registration Rights Agreement").
WHEREAS, references to line numbers in the below amendments refer to
lines in the EDGAR versions of such documents as originally filed with the SEC.
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Amendments to the Letter Agreement:
1. The text of the 52(nd) line of Section 1(a)(v) of the Letter
Agreement is hereby amended by inserting the following words
between the words "material" and "shall":
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"and all other confidential or proprietary information, which
information is known, or reasonably should be known or
expected, to be confidential or proprietary,"
2. The text of the 52nd line of Section 1(b)(v) of the Letter
Agreement is hereby amended by inserting the following words
between the words "material" and "shall":
"and all other confidential or proprietary information, which
information is known, or reasonably should be known or
expected, to be confidential or proprietary,"
3. The following text shall be added as Section 3(e):
"Restriction on Transfer to Certain Competitor. EHI agrees not
to sell, assign or otherwise transfer (hereinafter, a
"Transfer") any Shares to Anaren Microwave, Inc. ("Anaren"),
a competitor of Merrimac with its corporate office in East
Syracuse, New York (including any successor to the competing
businesses of Anaren); provided, however, that the foregoing
shall not apply to a Transfer to Anaren (i) as part of a sale
to the public pursuant to a registration statement under an
underwriting agreement or otherwise; provided that EHI shall
not make such a Transfer knowingly to Anaren; (ii) as part of
a sale pursuant to Rule 144 under the Securities Act in
brokers' transactions or transactions with market makers (as
defined in Rule 144); or (iii) in connection with a sale of
more than 50% of the shares of Merrimac."
II. Amendments to the April Registration Rights Agreement:
1. The text of the definition of "Common Stock" in Section 1 of the
April Registration Rights Agreement is hereby amended by inserting
the following words after the word "share":
", and shall include the common stock purchase rights under
the Company's Rights Agreement, dated March 9, 1999, as
amended from time to time, attached thereto."
2. The section reference to "Section 4.5" in the twelfth line of
Section 2.1(a) of the April Registration Rights Agreement is
hereby deleted and replaced with a reference to "Section 3.5."
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3. The text of the 15th line of Section 2.1(b) of the April
Registration Rights Agreement is hereby amended by inserting the
words "usual and" between the words "in" and "customary."
4. The text of the second line of Section 2.1(d)(i) of the April
Registration Rights Agreement is hereby amended by inserting
the following words after the word "effective":
"; provided that no stop order suspending the effectiveness
thereof has been issued and such registration has not been
withdrawn or terminated (except after the period contemplated
by Section 2.3(a) hereof)"
5. The text of Section 2.1(e) of the April Registration Rights
Agreement, incorrectly lettered 2.1(c), is hereby amended and
restated to read in its entirety as follows:
"(e) Notwithstanding anything to the contrary
contained in any other provision of this Agreement, the
Company shall not be required to maintain the effectiveness
of a registration under the Act of an offering on a delayed
or continuous basis pursuant to Rule 415 (or any successor
provision then in force) under the Act (a "Shelf
Registration") at the request of the Holder pursuant to this
Section 2.1 for more than ninety (90) days or until all
Holders have completed the distribution relating thereto;
provided, however, that such ninety (90) day period shall be
extended for a period of time equal to the period the Holders
refrain from selling any securities included in such
registration at the written request of the Company in
accordance with Section 2.4 or an underwriter or in
accordance with the provisions of Section 2.13."
6. The section reference to "Section 4.5" in the ninth line of
Section 2.2(a) of the April Registration Rights Agreement is
hereby deleted and replaced with a reference to "Section 3.5."
7. The text of the 17th line of Section 2.2(b) of the April
Registration Rights Agreement is hereby amended by deleting the
first reference to the words "pro rata."
8. The text of the second line of Section 2.3(a) of the April
Registration Rights Agreement is hereby amended by inserting the
words "on a Shelf Registration, if the Company then qualifies,
or, if it does not then qualify for the use of a Shelf
Registration," between the words "Statement" and "on." The text
of the 13th line of that same section is hereby amended by
inserting the words "or in accordance with the provisions of
Section 2.13" after the word "underwriter."
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9. The text of the second line of Section 2.5 of the April
Registration Rights Agreement is hereby amended by inserting the
words "to request the effectiveness of a Registration Statement"
between the words "action" and "pursuant."
10. The text of the ninth line of Section 2.6(a) of the April
Registration Rights Agreement is hereby amended by inserting the
words "other than those useable with respect to another
registration proceeding" between the word "Statement" and the
closed parenthesis. The same line of that same section is hereby
amended by inserting the following words between the closed
parenthesis and the comma:
"other than upon or after any disclosure which had or could
have a negative impact on the Company or the Common Stock or
upon or after the occurrence or the threat of the occurrence
of any event which had or could have a negative impact on the
Company, the Common Stock or the financial markets"
11. The text of fourth line of Section 2.6(b) of the April
Registration Rights Agreement is hereby amended by inserting the
following after the word "Statement":
"; provided however, that the Holders shall have no obligation
to pay their respective pro rata share of the incremental
registration fee payable under the Act or any blue sky fees
and expenses, if applicable."
12. The section reference to "Section 2.6(b)" in the first line of
Section 2.7(a) of the April Registration Rights Agreement is
hereby deleted and replaced with the a reference to "Section
2.7(b)."
13. The text of the fourth line of Section 2.8 of the April
Registration Rights Agreement is hereby amended by adding the
words "customary and usual" in between the words "accept the" and
"terms." The word "Company" in the 20th line of that same section
is hereby deleted and replaced with the word "Holders".
14. The text of the 25th line of Section 2.10(a) of the April
Registration Rights Agreement is hereby amended by inserting the
clause "(and only to the extent)" between the words "extent" and
"that." The text of the 28th line of that same section is hereby
amended by inserting the words "for such Holder" between the
words "underwriter" and "or controlling." The text of the 28th
line of that same section is also amended by inserting the words
"of such Holder or underwriter for such Holder" between the word
"person" and the comma.
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15. The text of the third line of Section 2.10(b) of the April
Registration Rights Agreement is hereby amended by inserting the
word "and" between the comma and the word "each." The text of the
fourth through sixth lines of the same section are hereby amended
by deleting the clause ", any underwriter, any other Holder
selling securities in such registration statement and any
controlling person of any such underwriter or other Holder,". The
text of the eighth line in that same section is hereby amended by
inserting the following words between the comma and the word
"insofar":
"including as a result of claims made by any underwriter
of securities included in such Registration Statement and
any other Holder selling securities in such Registration
Statement and any controlling person of any such underwriter
or other Holder,"
16. The text of the 19th line of Section 2.10(c) of the April
Registration Rights Agreement is hereby amended by deleting the
word "this." The text of the 20th line of that same section is
hereby amended by inserting the clause "(a) or (b) to the extent
of such prejudice" after the number "2.10" and before the comma.
The text of the 22nd line of that same section is hereby amended
by deleting the word "this" before, and inserting the clause "(a)
or (b)" after, the number "2.10."
17. The text of the 16th line of Section 2.10(d) of the April
Registration Rights Agreement is hereby amended by inserting the
words "or alleged omission" between the words "omission" and "to
state."
18. The text of the third line of Section 2.13 of the April
Registration Rights Agreement is hereby amended by inserting the
words "effective date, or the" between the words "following the"
and "date" and deleting the word "final" and replacing it with
the words "filing of the Rule 424(b)". The fourth line of that
same section is hereby amended by deleting the word "a" and
replacing it with the word "such".
19. The text of the first line of Section 2.14 of the April
Registration Rights Agreement is hereby amended by inserting the
word "registration" between the words "any" and "right." The
second line of that same section is hereby amended by deleting
the word "after" and replacing it with the word "during."
III. Amendments to the Subscription Agreement:
1. The text of Section 4.1(c) of the Subscription Agreement is
hereby amended and restated to read in its entirety as follows:
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"(c) Each Investor covenants that, unless the
Purchased Shares, the Purchased Warrants, the Underlying
Shares or any other shares of capital stock of the Company
received in respect of the foregoing have been registered
pursuant to the Registration Rights Agreement being entered
into among the Company and the Investors, such Investor will
not dispose of such securities unless in accordance with an
offering registered under the Securities Act or in accordance
with an exemption from such requirements and applicable Blue
Sky Laws."
2. The text of the 16th line of Section 4.2 of the Subscription
Agreement is hereby amended by inserting the word "reasonably"
between the words "Company" and "determines."
3. The text of the seventh line of Section 4.3 of the Subscription
Agreement is hereby amended by inserting the words "as applicable"
after the word "legend" and before the colon.
4. The text of the third line of Section 5.1(a) of the Subscription
Agreement is hereby amended by deleting the words "information
reporting forms" and replacing them with the clause "information,
reports, and forms". The text of the 5th line of that same section
is hereby amended by inserting the clause "(including, without
limitation, under Rule 144 promulgated by the SEC)" after the word
"adopted" and before the comma.
5. The text of the third line of Section 5.1(b) of the Subscription
Agreement is hereby amended by inserting the words "and other
information" between the words "report" and "of the Company."
IV. Amendments to the Warrant:
1. The text of the last line in the paragraph defining the term
"Common Stock" in the Warrant, is hereby amended by inserting the
words "and shall include the common stock purchase rights under
the Company's Rights Agreement, dated March 9, 1999, as amended
from time to time, attached thereto" after the closed parenthesis
and before the period.
2. Section 2 of the Warrant is hereby amended and restated to read in
its entirety as follows:
"2. Sale or Exercise Without Registration. If, at the time of any
exercise, transfer or surrender for exchange of a Warrant or
of Underlying Securities previously issued upon the exercise
of Warrants, such Warrant or Underlying Securities shall not
be registered under the Securities Act, the Holder will not
dispose of such Warrant or the Common Stock issuable
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upon exercise unless in accordance with an offering registered
under the Securities Act or in accordance with an exemption
from such requirements and applicable state securities laws,
provided that the disposition thereof shall at all times be
within the control of such Holder or transferee, as the case
may be, and provided further that nothing contained in this
Section 2 shall relieve the Company from complying with any
request for registration pursuant to the Registration Rights
Agreement or relieve the Holder from the restrictions on
transfer set forth in Section 21 below. The first Holder of
this Warrant, by acceptance hereof, represents to the Company
that it is acquiring the Warrants for investment and not with
a view to the distribution thereof."
3. The text of the sixth and seventh lines of Section 3.1 of the
Warrant is hereby amended by deleting the words "called for on the
face of" and replacing them with the words "then issuable under."
The text of the seventh and eighth lines of that same section are
hereby amended by deleting the clause "(without giving effect to
any adjustment therein)".
4. The text of the fifth and sixth lines of Section 3.2 of the
Warrant is hereby amended by deleting the clause "(without giving
effect to any adjustment therein)". The text of the twelfth and
13th lines of that same section are hereby amended by deleting the
words "on the face or faces thereof". The text of the 13th and
14th lines of that same section are hereby amended by deleting the
clause "(without giving effect to any adjustment therein)." The
text of the 14th and 15th lines of that same section are hereby
amended by deleting the words "called for on the face of" and
replacing them with the words "then issuable under". The text of
the 14th line of that same section is hereby amended by inserting
the words "immediately prior to such partial exercise hereof"
between the words "Warrant" and "minus."
5. The text of the fifth line of Section 3.3 of the Warrant is hereby
amended by deleting the word "the" between the words "Stock," and
"Warrant" and inserting the words "all or a portion of this". The
text of the sixth line of that same section is hereby amended by
deleting the word "Certificate". The text in the eighth line of
that same section is hereby amended by inserting a comma after the
word "Warrants" appearing for the second time in that line, and by
deleting the word "or" following the word "Warrants" appearing for
the second time in that line. The text in the ninth line of that
same section is hereby amended by inserting the words "or other
securities" between the words "Stock" and "to be." The text of the
13th line is hereby amended by inserting the clause "Warrants,"
between the words "number of" and "shares."
6. The text of the eleventh line of Section 3.4 of the Warrant is
hereby amended by deleting the word "ten" and replacing it with
the word "five." The text of
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the twelfth line of that same section is hereby amended by
inserting the word "reasonably" between the words "be" and
"determined."
7. The text of the fifth and sixth line of Section 3.6 of the Warrant
is hereby amended by inserting the words "immediately prior to"
between the words "until" and "the consummation of such
transaction."
8. The text of the second line of Section 5(a)(i) of the Warrant is
hereby amended by inserting the words "or distribution" after the
word "dividend" and before the comma.
9. The text of the second line of Section 5(a)(iii) of the Warrant is
hereby amended by inserting the words "stock split," after the
clause "split-up," and before the word "reclassification." The
third line of the that same section is hereby amended by inserting
the clause ", reverse stock split" after the word "shares."
10. The text of Section 5(b) of the Warrant is hereby amended and
restated to read in its entirety as follows:
"The Purchase Price and the Dilution Price shall be
equitably adjusted from time to time at the time of the
occurrence of an adjustment pursuant to Section 5(a) above or
Section 6 below and, in addition, as the Board of Directors,
in good faith, reasonably determines to be otherwise necessary
to protect the interest of the Holder of the Warrant."
11. The text of the third line of Section 6 of the Warrant is hereby
amended by inserting the words "sell or" before the word
"transfer." The text of the fourth and fifth lines of that same
section is hereby amended by deleting the words "under any plan or
arrangement contemplating the dissolution of the Company." The
eighth line of that same section is hereby amended by deleting the
word "dissolution" and replacing it with the words "sale or
transfer". The 13th line of that same section is hereby amended by
deleting the word "dissolution" and replacing it with the word
"transaction." The 16th line of that same section is hereby
amended by inserting the clause ", transfer" in front of the word
"merger." The text of the 19th line of that same section is hereby
amended by deleting the word "purchasing" and replacing it with
the word "acquiring". The text in the 24th line of that same
section is hereby amended by deleting the words "Section 6" and
replacing them with the word "Warrant."
12. The text of the last line of Section 7.1 of the Warrant is hereby
amended by inserting the words "or increased" after the word
"reduced."
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13. The text of the third line of Section 7.2(a) of the Warrant is
hereby amended by deleting the words "date hereof" and replacing
them with the words "Original Issue Date".
14. The text of the ninth and 13th lines of Section 7.2(b) of the
Warrant are hereby amended by inserting the words "for all then
unexercised Warrants" between the words "share" and "shall." The
16th line of that same section is hereby amended by inserting the
words "those actually" between the words "were" and "issued." The
text of the last line of that same section shall be amended by
inserting the words "but in no event shall the Purchase Price be
increased above what the Purchase Price was prior to the
adjustment(s) contemplated by this Section 7.2(b)" after the word
"exchanged" and before the period.
15. The text of the third line of Section 7.3(a) of the Warrant is
hereby amended by inserting the words "or Convertible Securities"
after the word "Stock."
16. The text of the ninth and twelfth lines of Section 7.3(b) of the
Warrant are hereby amended by inserting the words "for all then
unexercised Warrants" between the words "share" and "shall." The
text of the 15th line of that same section is hereby amended by
inserting the word "actually" between the words "those" and
"issued." The text of the last line of that same section is hereby
amended by inserting the words "but in no event shall the Purchase
Price be increased above what the Purchase Price was prior to the
adjustment(s) contemplated by this Section 7.3(b)" after the word
"exercised" and before the period.
17. The text of Section 7.4 of the Warrant shall be deleted in its
entirety and be restated as follows: "7.4. Intentionally Omitted."
18. The text of the eighth line of Section 7.5 of the Warrant is
hereby amended by deleting the words "date hereof" and replacing
them with the words "Original Issue Date".
19. The text of the sixth and seventh lines of Section 7.6 of the
Warrant are hereby amended by deleting the word "reasonably" in
the seventh line and inserting the word "reasonably" in the sixth
line after the clause "good faith,". The text of the eleventh line
of that same section is hereby amended by deleting the words
"other stock" and replacing them with the words "Other Securities
or other assets." The text of the 13th line of that same section
is hereby amended by inserting the word "reasonably" between the
clause "faith," and the word "determines." The text of the 20th
line of that same section is hereby amended by inserting the words
"or other assets" between the words "Securities" and "issuable."
The text of the 23rd line of that same section is hereby amended
by inserting the clause ", decrease the Dilution Price," after the
words "per share." The text of the last line of Section 7.6 is
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hereby amended by inserting the words "or other assets" after the
word "Securities."
20. The text of the sixth line of Section 7.7 of the Warrant is hereby
amended by inserting the clause "(subject to adjustments thereto
for any of the events contemplated by Sections 5, 6 and/or 7
above)" after the words "Issue Date."
21. The text of the third line of Section 9 of the Warrant is hereby
amended by inserting the words "or other assets" after the word
"Securities."
22. The text of the seventh line of Section 10 of the Warrant is
hereby amended by deleting the word "capital." The text of the
ninth line of that same section is hereby amended by inserting the
words "or sale" after the word "transfer." The text of the
eleventh line of that same section is hereby amended by inserting
the words "or any similar transaction" after the word "Company."
23. The text of the fourth line of Section 11 of the Warrant is hereby
amended by inserting the words "and other assets" after the word
"Securities."
24. The text of the third line of Section 15 of the Warrant is hereby
amended by inserting the words "or other assets" after the word
"Securities" and before the closed parenthesis.
25. The text of the last line of Section 16 of the Warrant is hereby
amended by inserting the words "without posting a bond or other
security or proving the likelihood of success" after the word
"otherwise" and before the period.
26. The text of the 16th line of Section 21(b) of the Warrant is
hereby amended by inserting the word "reasonably" after the word
"Company."
V. Amendments to the October Registration Rights Agreement:
1. The text of the definition of "Common Stock" in Section 1 of the
October Registration Rights Agreement is hereby amended by
inserting the following words after the word "share":
", and shall include the common stock purchase rights under
the Company's Rights Agreement, dated March 9, 1999, as
amended from time to time, attached thereto."
2. The text of the 15th and 16th lines of Section 2.1(b) of the
October Registration Rights Agreement is hereby amended by
inserting the words "usual and" between the words "in" and
"customary."
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3. The text of the fifth line of Section 2.1(d)(i) of the October
Registration Rights Agreement is hereby amended by inserting the
following words after the word "effective":
"; provided that no stop order suspending the effectiveness
thereof has been issued and such registration has not been
withdrawn or terminated (except after the period contemplated
by Section 2.3(a) hereof)"
4. The text of Section 2.1(e) of the October Registration Rights
Agreement is hereby amended and restated in its entirety to read
as follows:
"(e) Notwithstanding anything to the contrary
contained in any other provision of this Agreement, the
Company shall not be required to maintain the effectiveness
of a registration under the Act of an offering on a delayed
or continuous basis pursuant to Rule 415 (or any successor
provision then in force) under the Act (a "Shelf
Registration") at the request of the Holder pursuant to this
Section 2.1 for more than ninety (90) days or until all
Holders have completed the distribution relating thereto;
provided, however, that such ninety (90) day period shall be
extended for a period of time equal to the period the Holders
refrain from selling any securities included in such
registration at the written request of the Company in
accordance with the provisions of Section 2.4 or an
underwriter or in accordance with the provisions of Section
2.13."
5. The text of the 18th line of Section 2.2(b) of the October
Registration Rights Agreement is hereby amended by deleting the
first reference to the words "pro rata."
6. The text of the second line of Section 2.3(a) of the October
Registration Rights Agreement is hereby amended by inserting the
words "on a Shelf Registration, if the Company then qualifies,
or, if it does not then qualify for the use of a Shelf
Registration," between the words "Statement" and "on." The text
of the 13th line of that same section is hereby amended by
inserting the words "or in accordance with the provisions of
Section 2.13" after the word "underwriter."
7. The text of the second and third lines of Section 2.5 of the
October Registration Rights Agreement is hereby amended by
inserting the words "to request the effectiveness of a
Registration Statement" between the words "action" and
"pursuant."
8. The text of the tenth line of Section 2.6(a) of the October
Registration Rights Agreement is hereby amended by inserting the
words "other than those useable with respect to another
registration proceeding" between the word "Statement" and the
closed parenthesis. The same line of that same section
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is hereby amended by inserting the following words between the
closed parenthesis and the comma:
"other than upon or after any disclosure which had or could
have a negative impact on the Company or the Common Stock or
upon or after the occurrence or the threat of the occurrence
of any event which had or could have a negative impact on the
Company, the Common Stock or the financial markets"
9. The text of the fifth line of Section 2.6(b) of the October
Registration Rights Agreement is hereby amended by inserting the
following after the word "Statement":
"; provided however, that the Holders shall have no obligation
to pay their respective pro rata share of the incremental
registration fee payable under the Act or any blue sky fees
and expenses, if applicable."
10. The section reference to "Section 2.6(b)" in the second line of
Section 2.7(a) of the October Registration Rights Agreement is
hereby deleted and replaced with the a reference to "Section
2.7(b)."
11. The text of the fourth line of Section 2.8 of the October
Registration Rights Agreement is hereby amended by adding the
words "customary and usual" in between the words "accept the" and
"terms."
12. The text of the 25th line of Section 2.10(a) of the October
Registration Rights Agreement is hereby amended by inserting the
clause "(and only to the extent)" between the words "extent" and
"that." The text of the 28th line of that same section is hereby
amended by inserting the words "for such Holder" between the
words "underwriter" and "or controlling." The text of the 28th
line of that same section is hereby amended by inserting the
words "of such Holder or underwriter for such Holder" between the
word "person" and the comma.
13. The text of the third line of Section 2.10(b) of the October
Registration Rights Agreement is hereby amended by inserting the
word "and" between the comma and the word "each." The text of the
fourth through sixth lines of the same section are hereby amended
by deleting the clause ", any underwriter, any other Holder
selling securities in such registration statement and any
controlling person of any such underwriter or other Holder,". The
text of the ninth line in that same section is hereby amended by
inserting the following words between the comma and the word
"insofar":
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"including as a result of claims made by any underwriter of
securities included in such Registration Statement and any other
Holder selling securities in such Registration Statement and any
controlling person of any such underwriter or other Holder,"
14. The text of the 20th line of Section 2.10(c) of the October
Registration Rights Agreement is hereby amended by deleting the
word "this." The text of the 21st line of that same section is
hereby amended by inserting the clause "(a) or (b) to the extent
of such prejudice" after the number "2.10" and before the comma.
The text of the 23rd line of that same section is hereby amended
by deleting the word "this" and inserting the words "(a) or (b)"
after the number "2.10."
15. The text of the 16th line of Section 2.10(d) of the October
Registration Rights Agreement is hereby amended by inserting the
words "or alleged omission" between the words "omission" and "to
state."
16. The text of the fourth line of Section 2.13 of the October
Registration Rights Agreement is hereby amended by inserting the
words "effective date, or the" between the words "following the"
and "date" and deleting the word "final" and replacing it with
the words "filing of the Rule 424(b)". The fifth line of that
same section is hereby amended by deleting the word "a" and
replacing it with the word "such".
17. The text of the second line of Section 2.14 of the October
Registration Rights Agreement is hereby amended by inserting the
word "registration" between the words "any" and "right." That
same line of that same section is hereby amended by deleting the
word "after" and replacing it with the word "during."
Except as expressly amended herein, each of the Letter Agreement, Warrant (as
heretofore amended), April Registration Rights Agreement, Subscription Agreement
and October Registration Rights Agreement shall remain in full force and effect.
This Modification Agreement shall be governed by, and construed and interpreted
in accordance with, the laws of the State of New York, without giving effect to
any conflict of law provisions thereof. This Modification Agreement may not be
amended, supplemented or modified nor may the obligation of the parties hereto
be waived, except by an instrument in writing signed by each of the parties
hereto. This Modification Agreement may be executed in any number of
counterparts each of which when so executed shall be deemed an original and all
of which counterparts together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Modification Agreement as of the day first above written.
MERRIMAC INDUSTRIES, INC.
By:/s/ Mason N. Carter
---------------------------------------
Name: Mason N. Carter
Title: Chairman and
Chief Executive Officer
INFINEON TECHNOLOGIES AG
By: /s/ Bogel
-------------------------------------
Name: Bogel
Title: Corporate Legal Counsel
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