Exhibit 10(b)
MERRIMAC INDUSTRIES, INC.
375,000 SHARES OF COMMON STOCK
REGISTRATION RIGHTS AGREEMENT
April 7, 2000
MERRIMAC INDUSTRIES, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of April
__, 2000, by and between Merrimac Industries, Inc., a New Jersey corporation
(the "Company"), and Ericsson Holding International, B.V., a Netherlands
corporation (the "Purchaser")
RECITALS
The Company and the Purchaser have entered into a letter agreement (the
"Purchase Agreement"), dated as of the date hereof, pursuant to which the
Company sold to the Purchaser and the Purchaser purchased from the Company
375,000 shares of the Company's Common Stock (the "Shares"). A condition to
Purchaser's obligations under the Purchase Agreement is that the Company enter
into this Agreement in order to provide the Purchaser with certain rights to
register the Shares. The Company desires to comply with its covenants in the
Purchase Agreement and to induce the Purchaser to purchase the Shares 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 Purchaser and any permitted transferees under the
Purchase Agreement that hold Shares.
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"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 or other
securities of the Company issued to Purchaser in connection with Purchaser's
ownership of the Shares; provided, that such Shares 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 Purchaser's Request for Registration.
(a) If the Company shall receive at any time after two years after the date
hereof, 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, then the Company shall, within twenty (20) days of the receipt
thereof, give written notice of such request to all Holders, 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 request to be registered within twenty (20) days of the mailing of such
notice by the Company in accordance with Section 4.5.
(b) If the 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
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reasonably acceptable to a majority in interest of the Initiating Holders. In
such event, the right of any Holder to include his Registrable Securities in
such registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All 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 shares to be underwritten, then
the Company shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each Holder; provided, however, that the number of shares
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 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 and such registrations have been declared or ordered effective;
(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.
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(c) 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 4.5,
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 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:
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(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.
(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.
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(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 shares 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 only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of the
offering by the Company. If the total amount of securities, including
Registrable Securities, requested by shareholders to be included in such
offering 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) provided,
however, that the number of shares of Registrable Securities to be included in
such underwriting shall not be reduced unless all securities offered by Persons
other than the Company are first entirely excluded from the underwriting. 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,
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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 "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.
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(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 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.
2.10 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:
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(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 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.
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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.
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 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.
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The parties have executed this Registration Rights Agreement as of the date
first written above.
MERRIMAC INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Chairman and Chief Executive Officer
ERICSSON HOLDING INTERNATIONAL, B.V.
By: /s/ Xxxxxx Moller_________
Name: Xxxxxx Xxxxxx
[Signature Page to Registration Rights Agreement]
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