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) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Inc., a New York
corporation registered as an investment advisor under the Investment Advisers
Act of 1940 ("▇▇▇▇▇▇, Inc."), and its Affiliates and Associates (other than
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇); provided, that ▇▇▇▇▇▇, Inc., together with its Affiliates
and Associates (other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇), 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) ▇▇▇▇ ▇▇▇▇▇ Investment Partners, L.P., a Delaware
limited partnership ("▇▇▇▇ ▇▇▇▇▇"), and its Affiliates and
Associates; provided that ▇▇▇▇ ▇▇▇▇▇, 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, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Finance and
Chief Financial Officer
MELLON INVESTOR SERVICES LLC,
as Rights Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Client Service Manager
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