STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of December 13,
2004, is made by and between K Holdings LLC, Hampshire Investments, Limited,
Phillippe Corti and Xxxxx Xxxxxxx (jointly the "Purchasers"), and Infineon
Technologies AG, a German stock corporation (the "Seller").
WHEREAS the Seller is the record and beneficial owner of Four Hundred
Seventy-Five Thousand (475,000) shares (the "Shares") of common stock, par value
$0.01 per share, (the "Common Stock"), of Merrimac Industries, Inc., a Delaware
corporation (the "Company") and Four Hundred Seventy-Five Thousand (475,000)
related Common Stock purchase rights (the "Rights", and together with the
Shares, the "Securities") issued under the Company's Rights Agreement, dated
March 9, 1999, as amended through the date hereof (the "Rights Agreement"); and
WHEREAS the Seller desires to sell, and the Purchasers desire to purchase,
the Securities upon the terms set forth in this Agreement; and
WHEREAS, Seller and the Company are parties to a Registration Rights
Agreement dated as of April 7, 2000, and a Registration Rights Agreement dated
as of October 26, 2000, each as modified by a Modification Agreement dated as of
September 27, 2002 (together, as so modified, the "Registration Rights
Agreements");
NOW, THEREFORE, in consideration of the respective premises, mutual
covenants and agreements set forth in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
I. PURCHASE AND SALE OF SECURITIES
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1.1. Purchase and Sale. Upon the terms and subject to the conditions of
this Agreement, the Purchasers will purchase from the Seller, and the Seller
will sell, transfer, assign and deliver to the Purchasers, all of the Securities
as follows:
250,000 Shares to K Holdings LLC,
125,000 Shares to Phillippe Corti
50,000 Shares to Hampshire Investments, Limited
50,000 Shares to Xxxxx Xxxxxxx
The Purchasers agree to such transfers and assignments of the Securities.
1.2. Registration Rights. Concurrently with the foregoing transfers, the
Seller and Purchasers will enter into the Assignment and Assumption of
Registration Rights and Obligations attached hereto as Exhibit B.
1.3. Consideration. The purchase price hereunder shall be $7.00 per Share
(including the Right attached thereto) (the "Purchase Price").
1.4. Closing. The closing (the "Closing") of the purchase and sale of the
Securities provided in this Agreement shall take place at the offices of Xxxxxx
Xxxxxx Xxxxxxxxx Xxxx and Xxxx, Xxxxxxxxxxxxxxxxx 00, Xxxxxx, Xxxxxxx on
December 13, 2004 or such other place or date as may be mutually agreed by the
parties. At the Closing the Seller shall deliver to the Purchasers, jointly,
certificates for all the Shares, duly endorsed for transfer or accompanied by a
duly executed stock power, sufficient to convey to the Purchasers good title to
such Shares, and the Purchasers shall deliver to the Seller, by wire transfer of
immediately available funds to the following account:
CITIBANK LONDON
BANK ACCOUNT NO: 00000000
SWIFT CODE XXXXXX0X
IBAN NO: XX00 XXXX 0000 0000 0000 00
or such other account as may be designated by the Seller (such designation to
occur at least two business days prior to the Closing), an amount in U.S.
dollars equal to the aggregate Purchase Price for the Shares.
1.5. Adjustments to Consideration. In the event of any change, after the
date hereof and prior to the Closing, in the number of issued and outstanding
shares of Common Stock by reason of any stock dividends, split-up, reverse stock
split, combination, recapitalization, or other similar change in the corporate
or capital structure of the Company, or any other dividend on the Common Stock,
the Purchasers shall receive and the Seller shall deliver, at the same aggregate
purchase price as described herein, the stock or other securities, cash or
property to which the Purchasers would have been entitled, including as a result
of such event or events, had it been the holder of the Shares immediately prior
to the record date for such event or events.
II. REPRESENTATIONS AND WARRANTIES OF THE SELLER
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The Seller represents and warrants to the Purchasers, as of the date of
this Agreement and as of the Closing, as follows:
2.1. Ownership of Shares. The Seller is the lawful owner of, and has good
title to, the Shares, and the Shares are subject to no liens, charges,
encumbrances, adverse claims or restrictions on transfer (other than pursuant to
applicable securities laws). Upon transfer of the Shares to the Purchaser
hereunder, the Purchaser will obtain good and marketable title to the Shares
free and clear of all liens, claims, charges and encumbrances.
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2.2. Power and Authority. The Seller has full corporate power and authority
to execute and deliver this Agreement and to sell, assign, transfer and convey
the Shares in accordance with the terms of this Agreement.
2.3. Due Execution. The execution and delivery of this Agreement by the
Seller and the transfer of the Shares have been duly authorized by all necessary
corporate action. This Agreement has been duly executed and delivered by the
Seller and is the legal, valid and binding obligation of the Seller, enforceable
against it in accordance with its terms.
2.4. No Conflict; Consents. Neither the execution and delivery of this
Agreement, nor the transfer of the Shares hereunder, by the Seller will (i)
conflict with or violate any provision of law, regulation, or court or
administrative order applicable to the Seller, (ii) with or without the giving
of notice or the passage of time or both, conflict with or violate, or result in
a breach or termination of, or constitute a default or permit the acceleration
of any material obligation under, any provision of any contract or agreement to
which the Seller is a party or by which any of the Seller's properties may be
bound, (iii) conflict with or violate any provision of the organizational
documents of the Seller, or (iv) require the consent, waiver, approval or
authorization of, or filing with, any individual, partnership, joint venture,
corporation, trust, entity or government or department or agency thereof (other
than the filing of any required change in beneficial ownership statement with
the U.S. Securities Exchange Commission).
2.5. No Litigation. There is no claim, action, suit or proceeding pending
or, to the knowledge of the Seller, threatened against or relating to the Seller
that would reasonably be expected to have a material adverse effect on the
ability of the Seller to consummate the transactions contemplated by this
Agreement.
III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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The Purchasers represent and warrant to the Seller, jointly and severally,
as of the date of this Agreement and as of the Closing, as follows:
3.1. Power and Authority. The Purchasers have full corporate power and
authority to execute and deliver this Agreement and to purchase the Shares under
this Agreement in accordance with the terms of this Agreement.
3.2. Due Execution. The execution and delivery of this Agreement by the
Purchasers and the purchase of the Shares under this Agreement have been duly
authorized by all necessary corporate action. This Agreement has been duly
executed and delivered by the Purchasers and is the legal, valid and binding
obligation of the Purchasers, enforceable against it in accordance with its
terms.
3.3. No Conflict; Consents. Neither the execution and delivery of this
Agreement, nor the purchase of the Shares hereunder, by the Purchasers will (i)
conflict with or violate any provision of law, regulation, or court or
administrative order applicable to the Purchasers, (ii) with or without the
giving of notice or the passage of time or both, conflict with or violate, or
result in a breach or termination of, or constitute a default or permit the
acceleration of any material obligation under, any provision of any contract or
agreement to which a Purchaser is a party or by which any of the Purchasers'
properties may be bound, (iii) conflict with or violate
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any provision of the organizational documents of a Purchaser, or (iv) require
the consent, waiver, approval or authorization of, or filing with, any
individual, partnership, joint venture, corporation, trust, entity or government
or department or agency thereof (other than the filing of any required change in
beneficial ownership statement with the U.S. Securities Exchange Commission).
3.4. No Litigation. There is no claim, action, suit or proceeding pending
or, to the knowledge of a Purchaser, threatened against or relating to a
Purchaser that would reasonably be expected to have a material adverse effect on
the ability of a Purchaser to consummate the transactions contemplated by this
Agreement.
IV. CONFIDENTIALITY
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Except as required by law or any applicable rule or regulation of any stock
exchange or other self-regulatory organization, neither the Purchasers nor the
Seller will make any disclosure regarding the execution of this Agreement or the
terms hereof (including, without limitation, the Purchase Price), other than to
(i) its employees, officers, attorneys, accountants, agents and representatives
(who shall be instructed to keep such information confidential), or (ii) with
the prior consent of the other parties, which consent shall not be unreasonably
withheld.
V. CONDITIONS TO PURCHASE AND SALE
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5.1. The respective obligations of the Purchasers to purchase, and Seller
to sell, the Shares, shall be subject to the following conditions:
(a) No preliminary or permanent injunction or other order against the
delivery of the Shares or prohibiting the consummation of any of the
transactions contemplated hereby issued by any court of competent jurisdiction
shall be in effect.
(b) The Consent, Termination and Waiver, substantially in the form attached
hereto as Exhibit A, shall have been executed and delivered by the Company and
all resolutions referenced therein shall have been duly adopted by the Board of
Directors of the Company and shall be in full force and effect.
VI. GENERAL PROVISIONS
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6.1. Survival of Representations. Each representation, warranty, covenant
or agreement in this Agreement shall be deemed to have been relied upon and
shall survive the Closing.
6.2. Termination. This Agreement may be terminated by the mutual consent of
the parties hereto, and, if the Closing shall not have occurred, may be
terminated by either the Purchasers or the Seller at any time after December 15,
2004.
6.3. Effect of Termination. In the event of the termination of this
Agreement, this Agreement shall be void and of no further effect and there shall
be no further liability on the part of either the Purchasers or the Seller.
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6.4. Amendment; Assignment. This Agreement may be amended, modified or
supplemented and portions of it waived by, but only by, a written agreement
signed by the Purchasers and the Seller. Neither this Agreement nor any rights
or obligations under this Agreement may be assigned by any party, except that
the Purchasers may assign the right to purchase any or all of the Shares to one
or more affiliates of the Purchasers.
6.5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS,
INCLUDING VALIDITY, CONSTRUCTION, INTERPRETATION AND EFFECT, BY THE LAWS OF THE
FEDERAL REPUBLIC OF GERMANY, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
6.6. Specific Performance. The Seller acknowledges that the Purchasers will
have no adequate remedy at law if the Seller fails to perform its obligations
under this Agreement and that, in the event of any such failure, the Purchasers
shall have the right, in addition to any other right it may have, to specific
enforcement and injunctive relief to enforce this Agreement.
6.7. Indemnification. Each party shall indemnify, defend and hold harmless
the other party from and against any damages, penalties, fines, costs, amounts
paid in settlement, losses and expenses incurred by such indemnified party as a
result of any inaccuracy in any representation or warranty of such indemnifying
party contained in this Agreement; provided, however, that the amount of such
indemnification obligation shall in no event exceed the aggregate Purchase Price
hereunder.
6.8. Fees and Expenses. Each of the Purchasers and the Seller shall bear
its own fees and expenses, including, without limitation, the fees and expenses
of its legal advisors, incurred in connection with the execution of this
Agreement. 6.9. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersedes any and all prior agreements and understandings,
whether written or oral, relating to such subject matter.
6.10. Counterparts. This Agreement may be executed in a number of
counterparts and by the parties on separate counterparts, and all counterparts
shall together constitute one and the same instrument.
[Signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed on the date first written above.
THE SELLER: INFINEON TECHNOLOGIES AG
By: /s/ Francois Xxxxxx Xxxxxx
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Name: Francois Xxxxxx Xxxxxx
Title: Senior Vice President
By: /s/ Xx. Xxxxx Xxxxx
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Name: Xx. Xxxxx Xxxxx
Title: Corporate Legal Counsel
Xx.-Xxxxxx-Xxxxxxx 00, X-00000 Xxxxxx,
Xxxxxxx
THE PURCHASERS: K HOLDINGS LLC
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title:
Address:
Phillippe Corti
/s/ Phillippe Corti
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Address:
HAMPSHIRE INVESTMENTS, LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title:
Address:
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XXXXX XXXXXXX
By: /s/ Xxxxx Xxxxxxx
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Address:
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EXHIBIT A
Consent, Termination and Waiver
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Exhibit B
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Assignment and Assumption of Registration Rights and Obligations
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Reference is made to the Registration Rights Agreements with respect to the
shares of common stock of Merrimac Industries, Inc. ("Merrimac"), between
Merrimac and Infineon Technologies AG ("Infineon"), dated as of April 7, 2000
(the "April Registration Agreement") and October 26, 2000 (the "October
Registration Agreement"), each as modified by the Modification Agreement dated
as of September 27, 2002.
Infineon hereby assigns to (a) K Holdings LLC ("K Holdings") all of Infineon's
rights and obligations under the October Registration Agreement and (b) to K
Holdings, with respect to 150,000 Shares, Hampshire Investments, Limited
("Hampshire"), with respect to 50,000 Shares, Phillippe Corti ("Corti"), with
respect to 125,000 Shares, and Xxxxx Xxxxxxx ("Heirich" and collectively with K
Holdings, Hampshire, Corti and Heirich, the "Purchasers"), with respect to
50,000 Shares, Seller's rights and obligations under the April Registration
Agreement.
Each of the Purchasers hereby assumes all obligations of Infineon under such
Registration Agreements arising after the effective date hereof with respect to
the shares purchased from Infineon by such Purchaser.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Assignment and
Assumption of Registration Rights and Obligations to be duly executed on the
____ of December, 2004.
THE SELLER: INFINEON TECHNOLOGIES AG
By: /s/ Francois Xxxxxx Xxxxxx
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Name: Francois Xxxxxx Xxxxxx
Title: Senior Vice President
By: /s/ Xx. Xxxxx Xxxxx
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Name: Xx. Xxxxx Xxxxx
Title: Corporate Legal Counsel
Xx.-Xxxxxx-Xxxxxxx 00, X-00000 Xxxxxx,
Xxxxxxx
THE PURCHASERS: K HOLDINGS LLC
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title:
Address:
Phillippe Corti
/s/ Phillippe Corti
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Address:
HAMPSHIRE INVESTMENTS, LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title:
Address:
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XXXXX XXXXXXX
By: /s/ Xxxxx Xxxxxxx
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Address:
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