-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HGQdsOJt7MHFy6YlkgmGBkFXJlKWM3mRPGjHQh7i3CCz3aMSL2e5wSSJSrZSNvix 4Ep1CQmZnjTx8VNQehZpww== 0000899140-05-000008.txt : 20050106 0000899140-05-000008.hdr.sgml : 20050106 20050106172323 ACCESSION NUMBER: 0000899140-05-000008 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050106 DATE AS OF CHANGE: 20050106 GROUP MEMBERS: HAMPSHIRE INVESTMENTS, LIMITED GROUP MEMBERS: K HOLDINGS, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MERRIMAC INDUSTRIES INC CENTRAL INDEX KEY: 0000706864 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 221642321 STATE OF INCORPORATION: DE FISCAL YEAR END: 0102 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-34358 FILM NUMBER: 05516500 BUSINESS ADDRESS: STREET 1: 41 FAIRFIELD PL CITY: W CALDWELL STATE: NJ ZIP: 07006-0986 BUSINESS PHONE: 9735751300 MAIL ADDRESS: STREET 1: 41 FAIRFIELD PLACE CITY: WEST CALDWELL STATE: NJ ZIP: 07007-0986 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KUTTNER LUDWIG CENTRAL INDEX KEY: 0001135426 IRS NUMBER: 226315630 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: PO BOX 2667 CITY: ANDERSON STATE: SC ZIP: 29622 BUSINESS PHONE: 8642256232 MAIL ADDRESS: STREET 1: ------------- STREET 2: PO BOX 2667 CITY: ANDERSON STATE: SC ZIP: 29622 SC 13D 1 k2739582a.txt INITIAL FILING ON SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 Merrimac Industries, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 590262 10 1 - -------------------------------------------------------------------------------- (CUSIP Number) Ludwig G. Kuttner 627 Plank Road Keene, VA 22946 (434) 293-4277 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: Steven J. Gartner, Esq. Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019 (212) 728-8000 December 13, 2004 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D - ----------------------- ----------------- CUSIP No. 590262 10 1 Page 1 of 8 Pages - ----------------------- ----------------- - ----------- -------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Ludwig G. Kuttner - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS PF - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 --------- ------------------------------------------------ NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 300,000 OWNED BY --------- ------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 300,000 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 300,000 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.6% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) IN - ----------- -------------------------------------------------------------------- SCHEDULE 13D - ----------------------- ----------------- CUSIP No. 590262 10 1 Page 2 of 8 Pages - ----------------------- ----------------- - ----------- -------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Hampshire Investments, Limited I.R.S. No. 58-2332317 - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF --------- ------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY 50,000 EACH --------- ------------------------------------------------ REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 50,000 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 50,000 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.6% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) CO - ----------- -------------------------------------------------------------------- SCHEDULE 13D - ----------------------- ----------------- CUSIP No. 590262 10 1 Page 3 of 8 Pages - ----------------------- ----------------- - ----------- -------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON K Holdings, LLC I.R.S. No. 54-1767326 - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS OO - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF --------- ------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY 250,000 EACH --------- ------------------------------------------------ REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 250,000 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 250,000 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 8.0% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) OO - ----------- -------------------------------------------------------------------- Item 1. Security and the Issuer. This statement on Schedule 13D (the "Statement") relates to the common stock, par value $0.01 per share (the "Common Stock"), of Merrimac Industries, Inc. (the "Issuer"). The principal executive offices of the Issuer are located at 41 Fairfield Place, West Caldwell, NJ 07006. Item 2. Identity and Background. The Statement is being filed on behalf of Ludwig G. Kuttner, a United States Citizen ("Mr. Kuttner"), Hampshire Investments, Limited, a Delaware corporation ("HIL"), and K Holdings, LLC, a Delaware limited liability company ("K Holdings," and together with Mr. Kuttner and HIL, the "Reporting Persons"). Of the 300,000 shares of Common Stock deemed to be beneficially held by Mr. Kuttner, 250,000 are held directly by K Holdings and 50,000 are held directly by HIL. Mr. Kuttner is the principal member of K Holdings and owns 80% of the outstanding interests in HIL. Mr. Kuttner, K Holdings and HIL have acted in concert together from time to time with respect to the voting of the shares of Common Stock beneficially held by each of them and may act together with respect to the voting of such shares in the future; consequently, the Reporting Persons may be deemed to constitute a "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended. Mr. Kuttner is the Chairman and Chief Executive Officer of Hampshire Group, Limited, a Delaware corporation ("HGL"), which has principal executive offices located at 215 Commerce Boulevard, Anderson, SC 29625. HGL is an apparel company that engages in the design, manufacture and marketing of sweaters and related items through several of its subsidiaries. Mr. Kuttner's business address is 627 Plank Road, Keene, VA 22946. K Holdings has principal executive offices located at 627 Plank Road, Keene, VA 22946. The principal business of K Holdings is investment in real estates and other long term investment opportunities. HIL has principal executive offices located at 627 Plank Road, Keene, VA 22946. The principal business of HIL is to invest, both domestically and internationally, principally in real property. None of the Reporting Persons has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). None of the Reporting Persons has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. The total amount of funds used by the Reporting Persons to purchase the shares of Common Stock described herein was $2,100,000 and was furnished from the personal funds of Mr. Kuttner. Item 4. Purpose of Transaction. The purchase by the Reporting Persons of beneficial ownership of the shares of Common Stock as described herein was effected because of the Reporting Persons' belief that the Issuer represents an attractive investment based on the Issuer's business prospects and strategy. Depending on prevailing market, economic and other conditions, the Reporting Persons may from time to time acquire additional securities of the Issuer, engage in discussions with the Issuer concerning further acquisitions of securities of the Issuer or otherwise invest in the Issuer or one or more of its subsidiaries. The Reporting Persons intend to review their investment in the Issuer on a continuing basis and, depending upon the price and availability of the Issuer's securities, subsequent developments concerning the Issuer, the Issuer's business and prospects, other investment and business opportunities available to the Reporting Persons, general stock market and economic conditions, tax considerations and other factors considered relevant, may decide at any time to increase or decrease the size of their investment in the Issuer or to sell any or all of the securities of the Issuer that they hold. The Reporting Persons may in the future seek to engage in discussions with management of the Issuer concerning the possibility of a representative of the Reporting Persons becoming a member of the board of directors of the Issuer and/or concerning potential investments by the Reporting Persons in securities of the Issuer and/or its subsidiaries. Such discussions may relate to one or more the transactions specified in clauses (a) through (j) of Item 4 of Schedule 13D. Other than as set forth above, none of the Reporting Persons has any present plans or proposals which relate to or would result in any transaction, change or event specified in clauses (a) through (j) of Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer. (a) As of January 5, 2005, Mr. Kuttner may be deemed to beneficially own an aggregate of 300,000 shares of Common Stock by virtue of the ownership of 250,000 shares of Common Stock by K Holdings and 50,000 shares of Common Stock by HIL. The 300,000 shares of Common Stock deemed to be beneficially owned by Mr. Kuttner represent approximately 9.6% of the 3,132,518 shares of Common Stock outstanding as of November 12, 2004 (based on the number of shares of Common Stock reported to be outstanding by the Issuer in its Quarterly Report of Form 10-Q for the quarter ended October 2, 2004). As of January 5, 2005, K Holdings may be deemed to beneficially own 250,000 shares of Common Stock, representing approximately 8.0% of the 3,132,518 shares of Common Stock outstanding as of November 12, 2004. As of January 5, 2005, HIL may be deemed to beneficially own 50,000 shares of Common Stock, representing approximately 1.6% of the 3,132,518 shares of Common Stock outstanding as of November 12, 2004. (b) K Holdings shares the power to direct the voting and disposition of the 250,000 shares of Common Stock that it may be deemed to beneficially own. HIL shares the power to direct the voting and disposition of the 50,000 shares of Common Stock that it may be deemed to beneficially own. Mr. Kuttner, by virtue of his ownership of 80% of the outstanding interests in HIL and his status as the principal member of K Holdings, shares the power to direct the voting and disposition of the 300,000 shares of Common Stock held collectively by HIL and K Holdings. (c) On December 13, 2004, K Holdings and HIL entered into a Stock Purchase Agreement with Infineon Technologies AG ("Infineon") pursuant to which K Holdings purchased 250,000 shares of Common Stock from Infineon at $7 per share for an aggregate price of $1,750,000 and HIL purchased 50,000 shares of Common Stock from Infineon at $7 per share for an aggregate price of $350,000. The funds were wire transferred to Infineon on December 29, 2004. (d) The members of K Holdings, Mr. Kuttner and his wife Beatrice Ost-Kuttner, are entitled to receive, or have the power to direct, the receipt of dividends from or the proceeds of sales of the shares of Common Stock held by of K Holdings in accordance with their ownership interests. The shareholders of HIL, including Mr. Kuttner, are entitled to receive, or have the power to direct, the receipt of dividends from or the proceeds of sales of the shares of Common Stock held by of HIL in accordance with their ownership interests. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. K Holdings and HIL have entered into the Stock Purchase Agreement, dated December 13, 2004, to acquire the shares of Common Stock beneficially owned by each Reporting Person from Infineon. The Reporting Persons have also entered into an agreement, attached hereto as Exhibit 2, with respect to the joint filing of this Statement and any amendment or amendments hereto. Item 7. Material to be filed as Exhibits. Exhibit 1 Stock Purchase Agreement, dated December 13, 2004. Exhibit 2 Joint Filing Agreement among the Reporting Persons. SIGNATURES After reasonable inquiry and to the best of each of the undersigned's knowledge and belief, each of the undersigned, severally and not jointly, certifies that the information set forth in this statement is true, complete and correct. Dated: January 6, 2005 /s/ Ludwig G. Kuttner ----------------------------- Ludwig G. Kuttner Dated: January 6, 2005 K HOLDINGS, LLC By: /s/ Ludwig G. Kuttner ------------------------------ Name: Ludwig G. Kuttner Title: Managing Member Dated: January 6, 2005 HAMPSHIRE INVESTMENTS, LIMITED By: /s/ Ludwig G. Kuttner ------------------------------ Name: Ludwig G. Kuttner Title: Chief Executive Officer EX-1 2 k2739248.txt STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT ------------------------ 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 Botho Heirich (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 ------------------------------- 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 Botho Heirich 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 Wilmer Cutler Pickering Hale and Dorr, Maximilianstrasse 31, Munich, Germany 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: 10822612 SWIFT CODE CITIGB2L IBAN NO: GB91 CITI 1850 0810 8226 12 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 -------------------------------------------- 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. 2 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 ----------------------------------------------- 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 3 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 --------------- 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 ------------------------------- 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 ------------------ 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. 4 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] 5 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 Xavier Gerard ------------------------------ Name: Francois Xavier Gerard Title: Senior Vice President By: /s/ Dr. Horst Meyer ------------------------------ Name: Dr. Horst Meyer Title: Corporate Legal Counsel St.-Martin-Strasse 53, D-81669 Munich, Germany THE PURCHASERS: K HOLDINGS LLC By: /s/ Ludwig G. Kuttner ------------------------------ Name: Ludwig G. Kuttner Title: Address: Phillippe Corti /s/ Phillippe Corti ------------------------------ Address: HAMPSHIRE INVESTMENTS, LIMITED By: /s/ Ludwig G. Kuttner ------------------------------ Name: Ludwig G. Kuttner Title: Address: 6 BOTHO HEIRICH By: /s/ Botho Heirich ------------------------------ Address: 7 EXHIBIT A Consent, Termination and Waiver ------------------------------- 8 Exhibit B --------- Assignment and Assumption of Registration Rights and Obligations ---------------------------------------------------------------- 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 Botho Heirich ("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] 9 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 Xavier Gerard ------------------------------ Name: Francois Xavier Gerard Title: Senior Vice President By: /s/ Dr. Horst Meyer ------------------------------ Name: Dr. Horst Meyer Title: Corporate Legal Counsel St.-Martin-Strasse 53, D-81669 Munich, Germany THE PURCHASERS: K HOLDINGS LLC By: /s/ Ludwig G. Kuttner ------------------------------ Name: Ludwig G. Kuttner Title: Address: Phillippe Corti /s/ Phillippe Corti ------------------------------ Address: HAMPSHIRE INVESTMENTS, LIMITED By: /s/ Ludwig G. Kuttner ------------------------------ Name: Ludwig G. Kuttner Title: Address: 10 BOTHO HEIRICH By: /s/ Botho Heirich ------------------------------ Address: 11 EX-2 3 k2739582b.txt JOINT FILING AGREEMENT Exhibit 2 --------- Joint Filing Agreement The undersigned hereby agree that the statement on Schedule 13D filed by the undersigned with respect to the Common Stock of Merrimac Industries, Inc. is, and any amendment thereto signed by each of the undersigned shall be, filed on behalf of each undersigned pursuant to and in accordance with the provisions of Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended. Dated: January 6, 2005 /s/ Ludwig G. Kuttner ----------------------------- Ludwig G. Kuttner Dated: January 6, 2005 K HOLDINGS, LLC By: /s/ Ludwig G. Kuttner ------------------------------ Name: Ludwig G. Kuttner Title: Managing Member Dated: January 6, 2005 HAMPSHIRE INVESTMENTS, LIMITED By: /s/ Ludwig G. Kuttner ------------------------------ Name: Ludwig G. Kuttner Title: Chief Executive Officer -----END PRIVACY-ENHANCED MESSAGE-----