Exhibit 10(u)
MERRIMAC INDUSTRIES, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of
October 26, 2000, by and between Merrimac Industries, Inc., a New Jersey
corporation (the "Company"), and the parties listed on the attached Schedule 1
(the "Purchasers").
RECITALS
The Company and the Purchasers have entered into a subscription
agreement (the "Purchase Agreement"), dated as of the date hereof, pursuant to
which the Company sold to the Purchasers and the Purchasers purchased from the
Company 100,000 shares of the Company's Common Stock (the "Shares") and warrants
to purchase 100,000 shares of the company's common Stock (the "Warrants", and
collectively with the Shares, the "Securities"). A condition to Purchasers'
obligations under the Purchase Agreement is that the Company enter into this
Agreement in order to provide the Purchasers with certain rights to register the
Shares and Underlying Shares (as defined herein). The Company desires to comply
with its covenants in the Purchase Agreement and to induce the Purchasers to
purchase the Securities pursuant to the Purchase Agreement by agreeing to the
terms and conditions set forth herein.
AGREEMENT
The parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in or pursuant to the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" or "Securities Act" means the United States Securities Act
of 1933, as amended.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Common Stock" means the Company's Common Stock, par value $0.50
per share.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended.
"Form S-3" means such form under the Act as in effect on the date
hereof or any successor form under the Act.
"Holder" means the Purchasers and any permitted transferees under
the Purchase Agreement that hold Securities.
"Investor Group Registration Agreement" means the Registration
Rights Agreement, dated October 26, 2000 between the Company and Xxxx Xxxxx
Investment Partnership L.P., Xxxx Xxxxx Investments Ltd. and certain other
investors executing the same.
"Person" shall mean an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Registrable Securities" means all or any portion of the Shares
and the shares of Common Stock issuable upon exercise of the Warrants (the
"Underlying Shares") or other securities (other than the Warrants) of the
Company issued to Purchasers in connection with Purchasers' ownership of the
Securities; provided, that such Securities and other securities will cease to be
Registrable Securities when and to the extent that (a) a Registration Statement
covering the Registrable Securities has been declared effective under the
Securities Act and the Registrable Securities have been disposed of pursuant to
such effective Registration Statement, (b) the Registrable Securities are
distributed to the public pursuant to Rule 144 (or any successor provision then
in force) under the Securities Act, (c) such Registrable Securities are no
longer held by a Holder or (d) the Registrable Securities have ceased to be
outstanding.
"Registration Statement" means a registration statement of the
Company under the Securities Act on any form (to be selected by the Company) for
which the Company then qualifies and which permits the sale thereunder of the
number and type of Registrable Securities (and any other securities of the
Company) requested by Holder pursuant to this Agreement to be included therein.
The term Registration Statement shall also include all exhibits and financial
statements and schedules and documents incorporated by reference in such
Registration Statement when it becomes effective under the Securities Act, and
in the case of the references to the Registration Statement as of a date
subsequent to the effective date, as amended or supplemented as of such date.
"SEC" means the Securities and Exchange Commission.
2. Registration Rights.
2.1. Purchasers's Request for Registration. (a) If the
Company shall receive at any time after two years after the date hereof, (a) a
written request from the Holders that the Company file a Registration Statement
covering the registration of at least the lesser of (i) fifty percent (50%) of
the Registrable Securities then outstanding or (ii) Registrable Securities
having an anticipated aggregate public offering price of at least $1.0 million,
or (b) a written request from other Persons pursuant to Section 2.1(a) of the
Investor Group Registration Agreement (an "Other Holder"), then the Company
shall, within twenty (20) days of the receipt thereof, give written notice of
such request to all Holders and all Persons who are defined as "Holders" under
the Investor
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Group Registration Agreement, and shall, subject to the limitations of
subsection 2.2(b), use its best efforts to effect as soon as practicable, and in
any event within ninety (90) days of the receipt of such request, the
registration under the Act of all Registrable Securities which the Holders and
the Persons who are defined as "Holders" under the Investor Group Registration
Agreement (collectively with the Holders and the Other Holders, the "Demand
Holders") request to be registered within twenty (20) days of the mailing of
such notice by the Company in accordance with Section 3.5.
(b) If the Demand Holders initiating the
registration request hereunder ("Initiating Holders") intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
this Section 2.1, and the Company shall include such information in the written
notice referred to in subsection 2.1(a). The underwriter will be selected by the
Company and shall be reasonably acceptable to a majority in interest of the
Initiating Holders. In such event, the right of any Demand Holder to include his
Registrable Securities in such registration shall be conditioned upon such
Demand Holder's participation in such underwriting and the inclusion of such
Demand Holder's Registrable Securities in the underwriting (unless otherwise
mutually agreed by a majority in interest of the Initiating Holders and such
Demand Holder) to the extent provided herein. All Demand Holders proposing to
distribute their securities through such underwriting shall (together with the
Company as provided in subsection 2.8) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 2.1, if the
underwriter advises the Company in writing that marketing factors require a
limitation of the number of Securities to be underwritten, then the Company
shall so advise all Demand Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of Registrable
Securities that may be included in the underwriting shall be allocated among all
Demand Holders thereof, including the Initiating Holders, in proportion (as
nearly as practicable) to the amount of Registrable Securities of the Company
owned by each Demand Holder; provided, however, that the number of Registrable
Securities to be included in such underwriting shall not be reduced unless all
other securities are first entirely excluded from the underwriting. Any
Registrable Securities excluded and withdrawn from such underwriting shall be
withdrawn from the registration.
(c) Notwithstanding the foregoing, if the Company
shall furnish to Demand Holders requesting a Registration Statement pursuant to
this Section 2.1, a certificate signed by the President of the Company stating
that in the good faith judgment of the Board of Directors of the Company, it
would be seriously detrimental to the Company and its shareholders for such
Registration Statement to be filed and it is therefore essential to defer the
filing of such Registration Statement, the Company shall have the right to defer
such filing for a period of not more than sixty (60) days after receipt of the
request of the Initiating Holders; provided, however, that the Company may not
utilize this right more than once in any twelve-month period.
(d) In addition, the Company shall not be obligated
to effect, or to take any action to effect, any registration pursuant to this
Section 2.1:
(i) After the Company has effected two (2)
registrations pursuant to this Section 2.1 (including any in which the
Holders have joined in a demand registration of any Other Holder pursuant
to Section 2.1(a)) and such registrations have been declared or ordered
effective;
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(ii) If the Company has effected a registration
within the 90-day period next preceding such request; or
(iii) During the period starting with the date sixty
(60) days prior to the Company's good faith estimate of the date of filing
of, and ending on a date one hundred eighty (180) days after the effective
date of, a registration subject to Section 2.2 hereof; provided that the
Company is actively employing in good faith all reasonable efforts to cause
such Registration Statement to become effective.
(e) Notwithstanding anything to the contrary
contained in any other provision of this Agreement, the Company shall not be
required to effect 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") or maintain the effectiveness of a
registration statement to effect a Shelf Registration at the request of the
Holder pursuant to this Section 2.1.
2.2. Company Registration. (a) If (but without any
obligation to do so) the Company proposes to register (including for this
purpose a registration effected by the Company for shareholders other than the
Holders) any of its stock under the Act in connection with the public offering
of such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company stock plan or a transaction
covered by Rule 145 under the Act), the Company shall, at such time, promptly
give each Holder written notice of such registration. Upon the written request
of each Holder given within twenty (20) days after mailing of such notice by the
Company in accordance with Section 3.5, the Company shall, subject to the
provisions of Section 2.3, cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered
(subject, however, to reduction in accordance with Section 2.2(b)). If a Holder
decides not to include all of its Registrable Securities in any registration
statement thereafter filed by the Company, such Holder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statements as may be filed by the Company with respect
to offerings of its securities, all upon the terms and conditions set forth
herein.
(b) In the event the Holder desires to participate
in an offering pursuant to Section 2.2(a), the Holder may include Registrable
Securities in any Registration Statement relating to such offering to the extent
that the inclusion of such Registrable Securities will not reduce the number of
Shares of Common Stock to be offered and sold pursuant thereto by the Company
demand registration rights with respect to such offering. If the lead managing
underwriter selected by the Company for an underwritten offering pursuant to
Section 2.2(a) determines that marketing factors require a limitation on the
number of Shares of Common Stock to be offered and sold by the shareholders of
the Company in such offering, there will be included in the offering only that
number of Shares of Common Stock, if any, that such lead managing underwriter
determines will not jeopardize the success of the offering of all Shares of
Common Stock that the Company desires to sell for its own account. In such event
and provided the managing underwriter has so notified the Company in writing,
the number of Shares of Common Stock to be offered and sold by the shareholders
of the Company, including the Holder, desiring to participate in such offering
will be allocated among such holders of Shares of
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Common Stock first, pro rata pro rata among the Holders and second, among
securities to be registered pursuant to demand registration rights held by
Persons other than the Holders.
2.3. Obligations of the Company. Whenever required under
this Section 2 to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably practicable:
(a) Subject to Sections 2.1(c) and 2.1(d), prepare
and file with the SEC a Registration Statement on any form for which the Company
then qualifies or which counsel for the Company deems appropriate, which form is
subject to the reasonable approval of the Holders participating in the offering
and which form is available for the sale of the Registrable Securities in
accordance with the intended methods of distribution thereof, and use its best
efforts to cause such Registration Statement to become effective; and, upon the
request of any Holder, keep such Registration Statement effective for up to
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.
(b) Prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such Registration Statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of
a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement.
(f) Notify each Holder of Registrable Securities
covered by such Registration Statement at any time when a prospectus relating
thereto is required to be delivered under the Act of the happening of any event
as a result of which the prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
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(g) Cause all such Registrable Securities registered
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder and a CUSIP number for all
such Registrable Securities, in each case not later than the effective date of
such registration.
2.4. Delay of Effective Registration Statement. Upon
receipt of written notice from the Company as provided herein of the happening
of any event of the kind described in Section 2.3(f), the Holders will forthwith
discontinue disposition of Registrable Securities pursuant to the prospectus or
Registration Statement covering such Registrable Securities until the Holders'
receipt of copies of the supplemented or amended prospectus (at the Company's
expense), and, if so directed by the Company, the Holders will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in the Holders' possession of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.
2.5. Furnish Information. It shall be a condition precedent
to the obligations of the Company to take any action
pursuant to this Section 2 with respect to the Registrable Securities of any
selling Holder that such Holder shall furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the intended method
of disposition of such securities as shall be required to effect the
registration of such Holder's Registrable Securities.
2.6. Expenses of Demand Registration. (a) Except as
provided in Section 2.6(b), all expenses, including all registration, filing and
qualification fees, printers' and accounting fees and fees and disbursements of
counsel for the Company, shall be borne by the Company in connection with the
registration of Registrable Securities pursuant to Section 2.1; provided,
however, that the Company shall not be required to pay for any expenses of any
registration proceeding begun pursuant to Section 2.1 if the registration
request is subsequently withdrawn at the request of the Holders (in which case
the Holders shall bear such out-of-pocket expenses incurred in the preparation,
filing and processing of the Registration Statement), unless the Holders agree
to forfeit their right to one demand registration pursuant to Section 2.1.
(b) The Holders will pay any fees or disbursements
of counsel to the Holders and all underwriting discounts and commissions and
transfer taxes, if any, and other fees, costs and expenses of the Holders
relating to the sale or disposition of the Registrable Securities pursuant to a
Registration Statement.
2.7. Expenses of Company Registration. (a) Except as
provided in Section 2.6(b), the Company shall bear and pay all expenses incurred
in connection with any registration, filing or qualification of Registrable
Securities with respect to the registrations pursuant to Section 2.2 for the
Holders, including (without limitation) all registration, filing, and
qualification fees, printers' and accounting fees relating or apportionable
thereto, but excluding underwriting discounts and commissions relating to the
Registrable Securities and the reasonable fees and disbursements of counsel for
the selling Holders.
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(b) The Holders will pay any fees or disbursements
of counsel to the Holders and all underwriting discounts and commissions and
transfer taxes, if any, and other fees, costs and expenses of the Holder
relating to the sale or disposition of the Registrable Securities pursuant to a
Registration 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.
2.8. Underwriting Requirements. In connection with any
offering involving an underwriting of Securities of the Company's capital stock,
the Company shall not be required under Section 2.1 or Section 2.2 to include
any of the Holders' securities in such underwriting unless they accept the terms
of the underwriting as agreed upon between the Company and the underwriters
selected by it (or by other persons entitled to select the underwriters), and
then, in the case of an offering pursuant to Section 2.2(a) only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of an offering of all Shares of Common Stock that the
Company desires to sell for its own account. If the total amount of securities,
including Registrable Securities, requested by shareholders to be included in
such offering pursuant to Section 2.2(a) exceeds the amount of securities sold
other than by the Company that the underwriters determine in their sole
discretion is compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters determine
in their sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling shareholders
according to the total amount of securities entitled to be included therein
owned by each selling shareholder). For purposes of the preceding parenthetical
concerning apportionment, for any selling shareholder which is a holder of
Registrable Securities and which is a partnership or corporation, the partners,
retired partners, shareholders and affiliated partnerships of such holder, or
the estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "selling shareholder," and any pro-rata reduction with respect to such
"selling shareholders" shall be based upon the aggregate amount of Shares
carrying registration rights owned by all entities and individuals included in
such "selling shareholder," as defined in this sentence.
2.9. Delay of Registration. No Holder shall have any right
to obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 2.
2.10. Indemnification. In the event any Registrable
Securities are included in a Registration Statement under this Section 2:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, any underwriter (as defined in the Act)
for such Holder and each person, if any, who controls such Holder or underwriter
within the meaning of the Act or the Exchange Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a
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"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such Registration Statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Act, the Exchange Act or any state securities
law; and the Company will pay to each such Holder, underwriter or controlling
person, as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 2.10(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability, or action to the extent that it arises out of or is
based upon a Violation which occurs (x) in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person, (y) results
from such Holder's failure to deliver a copy of the prospectus or any
supplements thereto after the Company has furnished such Holder with a
sufficient number of copies of same, or (z) results from such Holder's delivery
of prospectuses after the Company has notified such Holder in writing to
discontinue delivery of prospectuses.
(b) To the extent permitted by law, each selling
Holder will indemnify and hold harmless the Company, each of its directors, each
of its officers who has signed the Registration Statement, each person, if any,
who controls the Company within the meaning of the Act, any underwriter, any
other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder, against any losses,
claims, damages, or liabilities (joint or several) to which any of the foregoing
persons may become subject, under the Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by such Holder
expressly for use in connection with such registration; and each such Holder
will pay, as incurred, any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection 2.10(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 2.10(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this subsection
2.10(b) exceed the net proceeds from the offering received by such Holder,
except in the case of willful misconduct by such Holder.
(c) Promptly after receipt by an indemnified party
under this Section 2.10 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 2.10,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly
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noticed, to assume the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party (together with all other
indemnified parties which may be represented without conflict by one counsel)
shall have the right to retain one separate counsel, with the reasonable fees
and expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
2.10, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 2.10.
(d) If the indemnification provided for in this
Section 2.10 is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, liability, claim, damage, or
expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the statements or omissions that resulted
in such loss, liability, claim, damage, or expense as well as any other relevant
equitable considerations; provided, that, in no event shall any contribution by
a Holder under this Subsection 2.10(d) exceed the net proceeds from the offering
received by such Holder, except in the case of willful misconduct by such
Holder. The relative fault of the indemnifying party and of the indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) The obligations of the Company and Holders under
this Section 2.10 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 2, and otherwise.
2.11. Reports Under Securities Exchange Act of 1934. With a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as
those terms are understood and defined in SEC Rule 144, at all times after
ninety (90) days after the effective
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date of the first registration statement filed by the Company for the offering
of its securities to the general public so long as the Company remains subject
to the periodic reporting requirements under Sections 13 or 15(d) of the
Exchange Act;
(b) use its best efforts to file with the SEC in a
timely manner all reports and other documents required of the Company under the
Act and the Exchange Act (at any time after it has become subject to such
reporting requirements); and
(c) furnish to any Holder, so long as the Holder
owns any Registrable Securities, forthwith upon request (i) a written statement
by the Company that it has complied with the reporting requirements of SEC Rule
144 (at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Act and the Exchange Act (at
any time after it has become subject to such reporting requirements), (ii) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other information
as may be reasonably requested in availing any Holder of any rule or regulation
of the SEC which permits the selling of any such securities without registration
or pursuant to such form.
2.12. Assignment of Registration Rights. The rights to
cause the Company to register Registrable Securities pursuant to this Section 2
may be assigned (but only with all related obligations) to permitted
transferees.
2.13. Market Stand-Off Agreement. Each Holder hereby agrees
that, during the period of duration (up to, but not exceeding, 180 days)
specified by the Company and an underwriter of Common Stock or other securities
of the Company, following the date of the final prospectus distributed in
connection with a Registration Statement of the Company filed under the Act, it
shall not, to the extent requested by the Company and such underwriter, directly
or indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise transfer
or dispose of (other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such period except
Common Stock purchased in the public offering and Common Stock purchased in an
open market transaction; provided, however, that all officers and directors of
the Company enter into similar agreements.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the Shares or securities of every other person subject to the
foregoing restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in the form
provided by the underwriter containing terms which are essentially consistent
with the provisions of this Section 2.13.
Notwithstanding the foregoing, the obligations described in
this Section 2.13 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to an SEC Rule 145 transaction
on Form S-4 or similar forms which may be promulgated in the future.
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2.14. Termination of Registration Rights. No Holder shall
be entitled to exercise any right provided for in this Section 2 after such time
as Rule 144 or another similar exemption under the Act is available for the sale
of all of such Holder's Registrable Securities during a three (3)-month period.
2.15. Limitation of Subsequent Registration Rights. From
and after the date of this Agreement, the Company shall not, without the written
consent of the Holders of a majority of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of any securities
of the Company (except for the Investor Group Registration Agreement) which
would allow such holder or prospective holder to include such securities in any
registration filed by the Company, unless under the terms of such agreement,
such holder or prospective holder may include such securities in an such
registration only to the extent that the inclusion of its securities will not
reduce the amount of Registrable Securities of the Holders which is included.
3. Miscellaneous.
3.1. Successors and Assigns. Except as otherwise provided
herein or in the Purchase Agreement, the terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties provided, however, that none of the rights,
interests or obligations hereunder shall be assigned (by operation of law or
otherwise) by any of the parties without the prior written consent of the other
party. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and
permitted assigns any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided in this Agreement.
3.2. Governing Law. This Agreement and all acts and
transactions pursuant hereto shall be governed, construed and interpreted in
accordance with the laws of the State of New York, without giving effect to
principles of conflicts of laws.
3.3. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4. Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5. Notices. Unless otherwise provided, any notice
required or permitted by this Agreement shall be in writing and shall be deemed
sufficient upon delivery, when delivered personally or by overnight courier or
sent by telegram or fax, or forty-eight (48) hours after being deposited in the
U.S. mail, as certified or registered mail, with postage prepaid, and addressed
to the party to be notified at such party's address as set forth in the Purchase
Agreement or as subsequently modified by written notice.
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3.6. Amendments and Waivers. Any term of this Agreement may
be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities then outstanding, each future holder of all
such Registrable Securities, and the Company.
3.7. Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, the parties agree
to renegotiate such provision in good faith. In the event that the parties
cannot reach a mutually agreeable and enforceable replacement for such
provision, then (x) such provision shall be excluded from this Agreement, (y)
the balance of the Agreement shall be interpreted as if such provision were so
excluded and (z) the balance of the Agreement shall be enforceable in accordance
with its terms.
3.8. Consent to Jurisdiction; Service of Process. To the
fullest extent permitted by applicable law, each party hereto hereby irrevocably
and unconditionally waives all rights to a trial by jury in any suit, action or
proceeding.
The parties have executed this Registration Rights Agreement
as of the date first written above.
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Signature Pages
to
Merrimac Industries, Inc. Registration Rights Agreement
Dated as of October 26, 2000
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement, or have caused this Agreement to be executed and delivered by their
respective duly authorized officers, on the date first above written.
The Company: MERRIMAC INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx - Vice President, Finance and
Chief Financial Officer
The Investors: ERICSSON HOLDING INTERNATIONAL, B.V.
By: /s/ L.L. de Hoon
----------------------------------------------
Print Name: L.L. de Hoon, President
--------------------------------------
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Schedule 1
1. Ericsson Holding International, B.V.
c/o Ericsson Inc.
000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
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