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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 12 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): December 2, 1997
FLIR SYSTEMS, INC.
(exact name of registrant as specified in its charter)
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<CAPTION>
<S> <C> <C>
Oregon 0-21918 93-0708501
(State or other jurisdiction of (Commission (IRS Employer
incorporation or organization) File Number) Identification No.)
16505 S.W. 72nd Avenue, Portland, Oregon 97224
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code: (503)684-3731
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Item 1. Changes in Control of Registrant
--------------------------------
The information set forth under Item 2 of this Current Report is
incorporated herein by reference.
Item 2. Acquisition or Disposition of Assets
------------------------------------
On December 2, 1997, FLIR Systems, Inc. ("FLIR") acquired all of the
outstanding shares of capital stock of AGEMA Infrared Systems AB, a corporation
organized under the laws of Sweden ("AGEMA Sweden"), AGEMA Infrared Systems
Limited, a corporation organized under the laws of the United Kingdom ("AGEMA
UK"), AGEMA Infrared Systems Ltd., a corporation organized under the laws of
Canada ("AGEMA Canada") and AGEMA Infrared Systems, Inc., a Delaware corporation
("AGEMA USA") in exchange for a total of 4,162,000 shares of common stock
("Common Stock") of FLIR (the "Acquisition"). The Acquisition was effected
pursuant to the terms of a Combination Agreement dated as of October 6, 1997
(the "Combination Agreement") by and among FLIR, Spectra-Physics AB, a
corporation organized under the laws of Sweden ("Spectra"), Spectra-Physics
Holdings S.A., a corporation organized under the laws of France, Spectra-Physics
Holdings GmbH, a corporation organized under the laws of Germany, Spectra-
Physics Holdings PLC, a public limited company organized under the laws of the
United Kingdom ("Spectra UK") and Pharos Holdings, Inc., a corporation organized
under the laws of the state of Delaware ("Spectra USA").
In the Acquisition, FLIR acquired all of the outstanding shares of
capital stock of: (i) AGEMA Sweden from Spectra in exchange for 3,912,280 shares
of Common Stock and $100.00 in cash; (ii) AGEMA Canada from Spectra in exchange
for 41,620 shares of Common Stock and $30.00 in cash; (iii) AGEMA UK from
Spectra UK in exchange for 183,128 shares of Common Stock and $20.00 in cash and
(iv) AGEMA USA from Spectra USA in exchange for 24,972 shares of Common Stock.
The amount of the consideration paid in the Acquisition was determined through
arms-length negotiations between FLIR and Spectra.
As a result of the Acquisition, AGEMA Sweden, AGEMA UK, AGEMA Canada and
AGEMA USA have each become a wholly owned subsidiary of FLIR. AGEMA Sweden
designs, manufactures and markets thermal imaging systems worldwide for a wide
variety of applications in commercial and industrial markets. AGEMA Canada,
AGEMA UK and AGEMA USA own and operate sales and service offices for AGEMA
Sweden in Canada, the United Kingdom and the United States, respectively. FLIR
intends to continue operating the existing businesses of each of the acquired
companies.
It is expected that the acquisition of AGEMA USA will constitute a tax-
free reorganization for federal income tax purposes. The acquisitions of AGEMA
Sweden, AGEMA UK and AGEMA Canada will be taxable transactions to FLIR for
federal income tax purposes to the extent of the cash consideration paid by FLIR
in such acquisitions. The
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transaction is expected to be accounted for as a purchase. FLIR anticipates
recording a one-time charge in the quarter ended December 31, 1997 related to
the write-off of in process research and development recorded as part of the
transaction and other transaction costs. Such charge off is expected to
aggregate approximately $36.0 million, net of taxes.
Spectra, Spectra UK, Spectra USA (together, the "Spectra Companies")
and FLIR have entered into a Registration Rights Agreement that grants the
Spectra Companies certain registration rights with respect to the Common Stock
acquired by the Spectra Companies in the Acquisition. The Registration Rights
Agreement provides that if FLIR proposes to register any of its securities under
the Securities Act of 1933, whether for its own account or otherwise, the
Spectra Companies will be entitled to notice of the registration and inclusion
of such shares therein, subject to certain limitations. In addition, at any
time after twelve months from the date of the Acquisition, such holders may
require FLIR to file a registration statement covering such shares, and FLIR
will be obligated to use its best efforts to effect such registration, subject
to certain conditions and limitations.
Pursuant to the terms of the Combination Agreement, four people
designated by Spectra have been appointed to serve on FLIR's nine person Board
of Directors. In addition, FLIR has agreed to use its reasonable best efforts
to cause the number of designees of Spectra who are serving on the FLIR Board to
be maintained at the number described below: (i) three designees if on the date
of mailing of the notice for the annual shareholder meeting where such directors
shall be up for election and on the date the election is held, the Spectra
Companies hold of record and beneficially thirty percent (30%) or more of the
then issued and outstanding shares of Common Stock, (ii) two designees if on the
date of mailing of the notice for the annual shareholder meeting where such
directors shall be up for election and on the date the election is held, the
Spectra Companies hold of record and beneficially less than thirty percent (30%)
but more than or equal to twenty percent (20%) of the then issued and
outstanding shares of Common Stock, and (iii) one designee if on the date of
mailing of the notice for the annual shareholder meeting where such directors
shall be up for election and on the date the election is held, the Spectra
Companies hold of record and beneficially less than twenty percent (20%) but
more than or equal to ten percent (10%) of the then issued and outstanding
shares of Common Stock. If at some point in the future the Spectra Companies
hold of record and beneficially less than ten percent (10%) of the then issued
and outstanding shares of Common Stock, the Spectra Companies shall no longer be
entitled to the rights described above.
As a result of the Acquisition, Spectra and its affiliates now own
approximately 43 percent of the shares of Common Stock issued and outstanding
after the Acquisition. By virtue of their stock ownership position and Board
representation, Spectra and its affiliates will be able to significantly
influence the direction and policies of FLIR, the election of the FLIR Board of
Directors and the outcome of any other matter requiring shareholder approval,
including any merger, consolidation, sale of substantially all of the assets of
FLIR or other change of control transaction.
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Item 7. Financial Statements and Exhibits
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(a) Financial Statements of Business Acquired.
The financial statements required by this Item were included in FLIR's
Proxy Statement dated November 10, 1997 as filed with the Securities and
Exchange Commission on November 12, 1997 and, pursuant to General Instruction
B.3. to Form 8-K, are not also included herein.
(b) Pro Forma Financial Information.
The pro forma financial information required by this Item were included
in FLIR's Proxy Statement dated November 10, 1997 as filed with the Securities
and Exchange Commission on November 12, 1997 and, pursuant to General
Instruction B.3. to Form 8-K, are not also included herein.
(c) Exhibits
Number Description
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2.1 Combination Agreement dated as of October 6, 1997 by and among
FLIR Systems, Inc., Spectra-Physics AB, a corporation organized
under the laws of Sweden, Spectra-Physics Holdings S.A., a
corporation organized under the laws of France, Spectra-Physics
Holdings GmbH, a corporation organized under the laws of
Germany, Spectra-Physics Holdings Plc, a public limited company
organized under the laws of the United Kingdom and Pharos
Holdings, Inc., a corporation organized under the laws of the
state of Delaware (Incorporated by reference to FLIR's Current
Report on Form 8-K filed with the Securities and Exchange
Commission on October 24, 1997)
10.1 Form of Agreement Amending Executive Employment Agreement dated
as of December 1, 1997 for Robert P. Daltry, J. Kenneth Stringer
III, James A. Fitzhenry, J. Mark Samper, William N. Martin and
Steven R. Palmquist
10.2 Registration Rights Agreement dated as of December 1, 1997 by
and among FLIR Systems, Inc., Spectra-Physics AB, Spectra-
Physics Holdings PLC and Pharos Holdings
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10.3 Amendment to Registration Rights Agreement dated as of December
1, 1997 by and among FLIR Systems, Inc. and HE Holdings, Inc.,
formerly known as Hughes Aircraft Company
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FLIR SYSTEMS, INC.
(Registrant)
DATE: December 16, 1997 /s/ J. Mark Samper
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J. Mark Samper
Vice President and
Chief Financial Officer
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EXHIBIT 10.1
AGREEMENT AMENDING EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement Amending Executive Employment Agreement ("Amendment") is
entered into this 1st day of December, 1997 by and between ___________
("Executive") and FLIR SYSTEMS INC. ("FSI").
a) Each of Executive and FSI are parties to a certain Executive
Employment Agreement dated May 5, 1997 ("Employment Agreement").
b) FSI is a party to a Combination Agreement dated as of October 6, 1997,
with Spectra-Physics AB, a corporation organized under the laws of Sweden
("Spectra"), Spectra-Physics Holdings S.A., a corporation organized under the
laws of France ("Spectra France"), Spectra-Physics Holdings GmbH, a corporation
organized under the laws of Germany ("Spectra Germany"), Spectra-Physics
Holdings Plc, a public limited company organized under the laws of the United
Kingdom ("Spectra UK"), Pharos Holdings, Inc., a corporation organized under the
laws of the state of Delaware ("Pharos") (collectively, Spectra, Spectra France,
Spectra Germany, Spectra UK and Pharos are referred to individually as a
"Spectra Company" and collectively as "the Spectra Companies").
c) The consummation of the transactions contemplated by the Combination
Agreement (i) constitute a "Change of Control" as that term is defined in the
Employment Agreement, and (ii) indirectly benefit Executive as an FSI employee
and member of FSI management.
d) Under the terms of the Employment Agreement, the occurrence of a
"Change of Control", gives rise to certain rights and entitlements of the
Executive.
e) The parties to this Amendment intend and desire to amend the terms of
the Employment Agreement to provide that the consummation of the transaction
contemplated by the Combination Agreement does not constitute a Change of
Control under the terms of the Employment Agreement, provided, however, that the
effectiveness of which amendment shall be subject to certain limitations related
to the ownership of FSI stock as more fully set forth below.
NOW THEREFORE, for valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
a) AMENDMENT TO ARTICLE VI. Article VI of the Employment Agreement
-----------------------
shall be amended to add the following Section 6.6:
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6.6 SPECTRA TRANSACTION. Notwithstanding anything to the contrary
-------------------
contained in this Article VI, the consummation of the transactions
(collectively, "Spectra Transaction") contemplated by that certain
Combination Agreement entered into among FSI, Spectra-Physics AB, a
corporation organized under the laws of Sweden ("Spectra"), Spectra-Physics
Holdings S.A., a corporation organized under the laws of France ("Spectra
France"), Spectra-Physics Holdings GmbH, a corporation organized under the
laws of Germany ("Spectra Germany"), Spectra-Physics Holdings Plc, a public
limited company organized under the laws of the United Kingdom ("Spectra
UK"), Pharos Holdings, Inc., a corporation organized under the laws of the
state of Delaware ("Pharos") (collectively, Spectra, Spectra France,
Spectra Germany, Spectra UK and Pharos are referred to individually as a
"Spectra Company" and collectively as "the Spectra Companies") shall not
constitute a "Change of Control" for purposes of this Article VI.
b) EFFECTIVENESS OF AMENDMENT. Notwithstanding anything to the contrary
--------------------------
contained herein, the amendment to the Employment Agreement set out in Section 1
of this Amendment shall be null and void and of no effect at such time following
the consummation of the Spectra Transaction, that the Spectra Companies and
their Affiliates (as such term is defined in the Combination Agreement) acquire
more than forty-five percent (45%) of the total issued and outstanding shares of
FLIR Stock (as such term is defined in the Combination Agreement) as a result of
purchases of FLIR Stock by the Spectra Companies and their Affiliates (other
than the FLIR Stock issued under Section 2.5 of the Combination Agreement).
c) OTHER TERMS OF AGREEMENT UNMODIFIED. Except as expressly modified
-----------------------------------
herein, all terms and provisions of the Employment Agreement shall remain
unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
EXECUTIVE FLIR SYSTEMS, INC.
- ----------------------- By:
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Title:
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EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of
December, 1, 1997, by and among FLIR SYSTEMS, INC., an Oregon corporation (the
"Company"), SPECTRA-PHYSICS AB, a corporation organized under the laws of Sweden
("Spectra"), SPECTRA-PHYSICS HOLDINGS PLC, a public limited company organized
under the laws of the United Kingdom ("Spectra UK"), and PHAROS HOLDINGS, INC.,
a corporation organized under the laws of the state of Delaware ("Pharos").
RECITALS
A. Spectra desires to sell to the Company, and the Company desires to
purchase from Spectra, in accordance with the terms of that certain Combination
Agreement, dated as of October 6, 1997 (the "Combination Agreement"), one
hundred percent (100%) of the issued and outstanding shares of capital stock of
AGEMA Infrared Systems AB, a corporation organized under the laws of Sweden, for
an aggregate number of three million nine hundred twelve thousand two hundred
eighty (3,912,280) shares of the voting Common Stock of the Company, par value
$.01, and One Hundred and No/100 Dollars ($100.00).
B. Spectra desires to sell to the Company, and the Company desires to
purchase from Spectra, in accordance with the terms of the Combination
Agreement, one hundred percent (100%) of the issued and outstanding shares of
capital stock of AGEMA Infrared Systems, Ltd., a corporation organized under the
federal laws of Canada, for an aggregate number of forty one thousand six
hundred twenty (41,620) shares of the voting Common Stock of the Company, par
value $.01, and Thirty and No/100 Dollars ($30.00).
C. Spectra UK desires to sell to the Company, and the Company desires to
purchase from Spectra UK, in accordance with the terms of the Combination
Agreement, one hundred percent (100%) of the issued and outstanding shares of
capital stock of AGEMA Infrared Systems Limited, a company organized under the
laws of the United Kingdom, for an aggregate number of one hundred eighty three
thousand one hundred twenty eight (183,128) shares of the voting Common Stock of
the Company, par value $.01, and Twenty and No/100 Dollars ($20.00).
D. Pharos desires to exchange, in accordance with the terms and
conditions of the Combination Agreement, one hundred percent (100%) of the
issued and outstanding shares of capital stock of AGEMA Infrared Systems, Inc.,
a Delaware corporation, solely for an aggregate number of twenty four thousand
nine hundred seventy two (24,972) shares of the voting Common Stock of the
Company, par value $.01, and the Company desires to acquire that stock from
Pharos, solely in exchange for such shares of the voting Common Stock of the
Company.
E. The execution of this Agreement by the Company is a condition to the
obligations of Spectra, Spectra UK and Pharos to close the transactions
contemplated by the Combination Agreement.
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AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. DEFINITIONS
1.1 The term "Securities Act" means the Securities Act of 1933, as
amended.
1.2 The term "Exchange Act" means the Securities Exchange Act of
1934, as amended.
1.3 The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
1.4 The term "Registrable Securities" means (i) the Common Stock of
the Company acquired by Spectra, Spectra UK and Pharos upon the closing of the
transactions contemplated in the Combination Agreement and (ii) any Common Stock
of the Company issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for, or in replacement of, such
Common Stock; provided, however, that shares of Common Stock shall no longer be
treated as Registrable Securities at such time as the Holder thereof is able to
dispose of all Registrable Securities held by such Holder in one three-month
period pursuant to Rule 144 or Rule 144(k) or after they have been sold (x) to
or through a broker, dealer or underwriter in a public distribution or a public
securities transaction, whether in a registered offering, pursuant to Rule 144
or otherwise, or (y) by a person in a transaction in which its rights under this
Agreement are not assigned.
1.5 The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock outstanding that
are, and the number of shares of Common Stock issuable pursuant to then
exercisable or convertible securities that upon issuance would be, Registrable
Securities.
1.6 The term "Holder" means any person signatory to this Agreement
who owns or has the right to acquire Registrable Securities, or any assignee of
such signatory's rights who holds Registrable Securities.
2. REQUEST FOR REGISTRATION
2.1 If the Company shall receive at any time after twelve (12) months
from the date of this Agreement, a written request from the Holders of
Registrable Securities that the Company file a registration statement under the
Securities Act covering a number of shares of
<PAGE>
the Registrable Securities equal to not less than five percent of the number of
shares of Common Stock issued and outstanding on the date of such request, then
the Company shall, within ten (10) days of the receipt thereof, give written
notice of such request to all Holders and shall, subject to the provisions
hereof, effect as soon as practicable, and in any event shall use its best
efforts to effect within 120 days of the receipt of such request, the
registration under the Securities Act of all Registrable Securities that the
Holders request to be registered within 20 days of the mailing of such notice by
the Company, subject to Section 9.
2.2 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 Agreement and the Company shall
include such information in the written notice referred to in Section 2.1. In
such event, the right of any Holder to include his or her 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 to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the Initiating
Holders. Such underwriter or underwriters shall be reasonably acceptable to the
Company.
Notwithstanding any other provision of this Agreement, 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 that 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, including, without limitation, any shares offered by the
Company, are first entirely excluded from the underwriting. Any Registrable
Securities excluded or withdrawn from such underwriting shall be withdrawn from
the Registration.
2.3 Notwithstanding the foregoing, (i) the Company shall not be
obligated to effect a registration pursuant to this Agreement during the period
starting with the date forty-five (45) days prior to the Company's good faith
estimated date of filing of, and ending on the date ninety (90) days following
the effective date of, a registration statement pertaining to an underwritten
public offering of securities for the account of the Company, provided the
Company is at all times during such period diligently pursuing such registration
and (ii) if the Company shall furnish to Holders requesting a registration
statement pursuant to this Agreement, a certificate signed by the Chairman of
the Board of Directors 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 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 taking action with respect to such filing for a period
of not more than 90 days after receipt of the request of
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the Initiating Holders; provided, however, that this right to delay any
requested registration shall not be utilized more than once in any twelve (12)
month period.
2.4 In addition, the Company shall not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 2:
(A) If the Company has effected two registrations pursuant to this
Section 2 within the preceding twelve (12) months; or
(B) If the Company commits to initiate on its own the registration of
Common Stock to be issued by the Company under Section 3 below within
fifteen (15) days after receiving Holder's written request under Section
2.1 above, and holds within sixty (60) days of such notice an organization
meeting for such registration and effects such registration of all such
Registrable Securities covered by such notice within one hundred twenty
(120) days of the notice.
3. COMPANY REGISTRATION
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 or other securities under
the Securities 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 in a business combination
transaction, or a registration on any Form that does not include substantially
the same information as would be required to be included in a registration
statement covering the sale of the Registrable Securities), the Company shall,
at such time and at least thirty (30) days prior to the filing of a registration
statement covering the Company's securities, promptly give each Holder written
notice of such registration. Upon the written request of each Holder given
within twenty (20) days after the mailing of such notice by the Company, the
Company shall, subject to the provisions of this Agreement, use its best efforts
to cause to be registered under the Securities Act all of the Registrable
Securities that each such Holder has requested to be registered. The Holders'
rights under this Section 3 may be exercised an unlimited number of times.
4. OBLIGATIONS OF THE COMPANY
Whenever required under this Agreement to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
4.1 Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to one hundred twenty (120) days.
<PAGE>
4.2 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
Securities Act with respect to the disposition of all securities covered by such
registration statement.
4.3 Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
4.4 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.
4.5 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.
4.6 Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto covered by
such registration statement is required to be delivered under the Securities 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.
4.7 Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
<PAGE>
5. FURNISH INFORMATION
It shall be a condition precedent to the obligations of the Company to take
any action pursuant to this Agreement with respect to the Registrable Securities
of any selling Holder, that such Holder shall furnish to the Company such
information regarding it, 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 and to execute such
documents in connection with such registration as the Company may reasonably
request.
6. EXPENSES OF FIRST DEMAND REGISTRATION
All expenses, other than underwriting discounts and commissions relating to
Registrable Securities, incurred in connection with registrations, filings or
qualifications pursuant to this Agreement initially requested by the Holders
pursuant to Section 2.1 hereof and representing the first such request during
any twelve month period, including (without limitation) all registration, filing
and qualification fees, printers and accounting fees, fees and disbursements of
one counsel for the Holders (not to exceed a total of Twenty Five Thousand
Dollars ($25,000) in any one registration) and fees and disbursements of counsel
for the Company shall be borne by the Company; provided, however, that the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to this Agreement, if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case such expenses shall be
borne by the holders of Registrable Securities requesting such registration, in
proportion to the number of shares for which registration was requested), unless
the Holders of a majority of the Registrable Securities agree to forfeit their
right to one demand registration pursuant to Section 2; provided further,
however, that if at the time of such withdrawal, the Holders have learned of a
material adverse change in the condition, business, or prospects of the Company
from that known to the Holders at the time of their request and have withdrawn
the request with reasonable promptness following disclosure by the Company of
such material adverse change, then the Holders shall not be required to pay any
of such expenses and shall retain their rights pursuant to this Agreement.
7. EXPENSES OF SECOND DEMAND REGISTRATION
All expenses incurred in connection with registrations, filings or
qualifications pursuant to this Agreement initially requested by the Holders
pursuant to Section 2.1 hereof and representing the second such request during
any twelve month period, including (without limitation) all registration, filing
and qualification fees, printers and accounting fees, fees and disbursements of
counsel for the Company shall be borne by the Holders.
8. EXPENSES OF COMPANY REGISTRATION
All expenses, other than underwriting discounts and commissions relating to
Registrable Securities, incurred in connection with registrations, filings or
qualifications pursuant to this Agreement, including (without limitation) all
registration, filing, and qualification fees, printers
<PAGE>
and accounting fees, fees and disbursements of one counsel for the Holders (not
to exceed a total of Twenty Five Thousand Dollars ($25,000) in any one
registration), and fees and disbursements of counsel for the Company shall be
borne by the Company.
9. UNDERWRITING REQUIREMENTS
In connection with any offering (other than an offering made pursuant to
Section 2 of this Agreement) involving an underwriting of shares of capital
stock of the Company, the Company shall not be required under this Agreement to
include any of the Holders' securities in such underwriting unless such Holders
accept the terms of the underwriting as agreed upon between the Company and the
underwriters selected by it. If the total amount of securities, including
Registrable Securities, requested by shareholders to be included in such
offering exceeds the amount of securities that the underwriters reasonably
believe is compatible with the success of the offering, then all of the shares,
if any, requested to be included in the offering by Hughes Aircraft Company
("Hughes") pursuant to its Registration Rights Agreement with the Company dated
May 12, 1993 shall be included in the offering before any Registrable Securities
are included, and the underwriters may exclude up to a maximum of one hundred
percent (100%) of the Registrable Securities so requested to be included in such
registration, provided such registration does not include shares of any other
selling shareholders, except Hughes. (The securities so included to be
apportioned pro rata among the selling Holders according to the total amount of
securities entitled to be included therein owned by each selling Holder or in
such other proportion as shall mutually be agreed to by such selling Holders.)
10. 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
Agreement.
11. INDEMNIFICATION
In the event any Registrable Securities are included in a registration
statement under this Agreement:
11.1 To the extent not prohibited by law, the Company will indemnify
and hold harmless each Holder, the partners, officers, directors and agents of
each holder, and each person, if any, who controls such Holder within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Securities 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 "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
<PAGE>
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 Securities Act, the Exchange Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
state securities law; and the Company will pay to each such Holder, partner,
officer, director or agent, 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 Section 11.1 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 that occurs in reliance upon and
in conformity with written information furnished expressly for use in connection
with such registration by any such Holder or controlling person.
11.2 To the extent not prohibited 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 Securities Act, any underwriter
and any other Holder selling securities in such registration statement and any
partner, officer, director, or 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
Securities 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 under an instrument duly executed
by such Holder and stated to be specifically 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 Section 11.2, in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this Section 11.2 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 Section 11.2 exceed the gross proceeds from the offering received by
such Holder.
11.3 Promptly after receipt by an indemnified party under this
Agreement 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 Agreement, 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 shall
have the right to retain its own counsel, with reasonable fees and expenses to
be paid by the indemnifying party, if representation of such indemnified party
by the counsel
<PAGE>
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 prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Agreement, 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 Agreement.
11.4 If the indemnification provided for in this Agreement is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any losses, claims, damages or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall to the extent permitted by applicable law contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability 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 Violation(s) that resulted in such loss, claim,
damage or liability, as well as any other relevant equitable considerations.
The relative fault of the indemnifying party and of the indemnified party shall
be determined by a court of law by reference to, among other things, whether the
untrue or allegedly 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.
11.5 The foregoing indemnity agreements of the Company and Holders are
subject to the condition that, insofar as they relate to any Violation made in a
preliminary prospectus but eliminated or remedied in the amended prospectus on
file with the SEC at the time the registration statement in question becomes
effective or the amended prospectus filed with the SEC pursuant to SEC Rule
424(b) (the "Final Prospectus"), such indemnity agreement shall not inure to the
benefit of an indemnified party if a copy of the Final Prospectus was timely
furnished to that indemnified party, that indemnified party had an obligation to
furnish the Final Prospectus to the person asserting the loss, liability, claim
or damage, and the indemnified party failed to so furnish the Final Prospectus
at or prior to the time such action is required by the Securities Act.
11.6 The obligations of the Company and Holders under this Agreement
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
12. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934
With a view to making available to the Holders the benefits of Rule 144
promulgated under the Securities Act and any other rule or regulation of the SEC
that may at any time permit
<PAGE>
a Holder to sell securities of the Company to the public without registration,
the Company agrees to:
12.1 file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
12.2 furnish to any Holder forthwith upon request, so long as the
Holder owns any Registrable Securities, (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 Securities Act and the Exchange Act, (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 that permits the selling of any such securities without registration
or pursuant to such form.
13. ASSIGNMENT OF REGISTRATION RIGHTS
The rights to cause the Company to register Registrable Securities pursuant
to this Agreement may be assigned by a Holder to a transferee or assignee of
such securities who acquires at least five hundred thousand (500,000)
outstanding shares of Registrable Securities, appropriately adjusted for any
stock dividend, stock split, or combination applicable to the Registrable
Securities, or, if less, all of the transferor's Registrable Securities, and who
assumes the transferor's or assignee's obligations hereunder; provided the
Company is furnished with written notice of the name and address of the proposed
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that any transfer
by a Holder to any partner or affiliate of the Holder shall not be subject to
the limitation on the minimum number of shares to be transferred.
14. TERMINATION OF REGISTRATION RIGHTS
No Holder shall be entitled to exercise any right provided for in this
Agreement after December 1, 2007 (10) years.
15. SURVIVAL OF WARRANTIES
The warranties, representations and covenants contained in or made pursuant
to this Agreement shall survive the execution and delivery of this Agreement and
the Closing.
16. SUCCESSORS AND ASSIGNS
The terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective
<PAGE>
successors and assigns any rights, remedies, obligations or liabilities under or
by reason of this Agreement, except as expressly provided in this Agreement.
17. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the state of Oregon.
18. 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.
19. 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.
20. NOTICES
All notices, requests, demands or other communications required by or
otherwise with respect to this Agreement shall be in writing and shall be deemed
to have been duly given to any party when delivered personally (by courier
service or otherwise), when delivered by facsimile and confirmed by return
facsimile, or seven days after being mailed by first-class mail, postage prepaid
and return receipt requested. Unless a party changes its address by giving
notice to the other party as provided herein, notices shall be delivered to the
parties at the addresses set forth on the signature pages hereof.
21. ATTORNEYS' FEES
If a suit or action is filed by any party to enforce this Agreement or
otherwise with respect to the subject matter of this Agreement, the prevailing
party or parties shall be entitled to recover reasonable attorneys' fees
incurred in connection with such suit or action as fixed by the trial court, and
if any appeal is taken from the decision of the trial court, reasonable
attorneys' fees as fixed by the appellate court.
22. AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended and the observance of any term
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.
<PAGE>
23. SEVERABILITY
If one or more provisions of this Agreement is held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement, and
the balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
24. ENTIRE AGREEMENT
This Agreement constitutes the full and entire understanding and agreement
between the parties with respect to the subject matter hereof and supersede all
prior agreements with respect to the subject matter hereof.
[Signatures on following page]
<PAGE>
IN WITNESS WHEREOF, the parties have duly executed this REGISTRATION RIGHTS
AGREEMENT as of the date first above written.
COMPANY: FLIR SYSTEMS, INC., AN OREGON CORPORATION
By:/s/ J. Kenneth Stringer III
---------------------------
Name: J. Kenneth Stringer III
Title: President
Address: 16505 S.W. 72nd Avenue
Portland, OR 97224
Facsimile: 503-684-4188
SPECTRA: SPECTRA-PHYSICS AB, A CORPORATION ORGANIZED
UNDER THE LAWS OF SWEDEN
By:/s/ Lars Spongberg
------------------
Name: Lars Spongberg
Title: President and CEO
By:/s/ Lennart Rappe
-----------------
Name: Lennart Rappe
Title: Sr. Vice President and CFO
Address: P.O. Box 5226
S-10245 Stockholm, Sweden
Facsimile: +46 8 660 9226
<PAGE>
SPECTRA UK: SPECTRA-PHYSICS HOLDINGS PLC, A PUBLIC
LIMITED COMPANY ORGANIZED UNDER THE
LAWS OF THE UNITED KINGDOM
By:/s/ Lennart Rappe
-----------------
Name: Lennart Rappe
Title: President and CEO
Address: 77 Hugh Street, Brentford
Middlesex TW8 0AB, England
Facsimile: +44 181 847 0452
PHAROS: PHAROS HOLDINGS, INC., A
CORPORATION ORGANIZED UNDER THE LAWS OF
THE STATE OF DELAWARE
By:/s/ John J. Carney
------------------
Name: John J. Carney
Title: President
Address: 3411 Silverside Rd., Suite 108
Wilmington, DE 19810
Facsimile: 302-478-8962
<PAGE>
EXHIBIT 10.3
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
This Amendment to Registration Rights Agreement is entered into as of
December 1, 1997, by and among FLIR SYSTEMS, INC., an Oregon corporation (the
"Company") and HE HOLDINGS, INC., FORMERLY KNOWN AS HUGHES AIRCRAFT COMPANY
("Hughes").
WHEREAS, the Company, Hughes and Louisiana-Pacific Venture Corp. ("LP
Venture Corp.") entered into a Registration Rights Agreement dated as of May 12,
1993 (the "Agreement");
WHEREAS, LP Venture Corp. has disposed of the Shares subject to the
provisions of the Agreement;
WHEREAS, the Company and Hughes desire to amend and restate certain
provisions of the Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. Section 4.1 of the Agreement is hereby amended and restated as
follows:
4.1 If the representative of the underwriters participating in the sale
and distribution of the Company's securities covered by such registration
statement agrees that a number of Shares in excess of the shares to be sold on
behalf of the Company (the "Permissible Secondary Shares") may be included in
the offering covered by the registration statement, the Company's notice shall
afford the Holders of Shares an opportunity to elect to include in such
registration Shares owned by them. Each Holder shall have twenty (20) days
after receipt of the Company's notice to notify the Company in writing of the
number of Shares (the "Elected Shares") which such Holder elects to include in
the offering and the Elected Shares shall be included in the offering. If the
aggregate number of Elected Shares that the Holders thereof desire to include in
such offering exceeds the number of Permissible Secondary Shares, then each such
Holder shall be entitled to include that number of Permissible Secondary Shares,
then each such Holder shall be entitled to include that number of Shares that
bears the same ratio to the number of Permissible Secondary Shares as the number
of Elected Shares such Holder desires to include bears to the number of Elected
Shares all such Holders desire to include. Such representative may increase or
decrease the number of Permissible Secondary Shares at any time until all Shares
included in such registration shall have been sold by such underwriters.
Notwithstanding anything in this Section 4.1 to the contrary, if the Company
proposes to register any offering of shares of its capital stock under the
Securities Act in response to a demand for registration made pursuant to Section
2 of the Registration Rights Agreement dated as of December 1, 1997 by and among
the Company, Spectra-Physics AB, Spectra-Physics Holdings PLC and Pharos
Holdings, Inc. (the "Spectra Registration Rights Agreement"), all shares of the
Company's capital stock requested to be
<PAGE>
included in the offering pursuant to the Spectra Registration Rights Agreement
shall be included in the offering before any Shares owned by the Holders are
included in the offering.
2. Section 6 of the Agreement is hereby amended and restated as follows:
SECTION 6
OPINION OF COUNSEL
------------------
The Company shall have no obligation under Sections 3 and 4 to register any
----------------
Shares if the Company shall deliver to the Holder or Holders requesting such
registration an opinion of counsel reasonably satisfactory to such Holder or
Holders and their counsel to the effect that the proposed sale or disposition of
all of the Shares of such Holder or Holders for which registration was requested
does not require registration under the Securities Act for a sale or disposition
in a single public transaction. The Company hereby agrees to indemnify the
Holders of Shares, and each of them, against, and to hold them harmless from,
all damages, losses, liabilities (including liability for rescission), costs and
expenses that they may incur under the Securities Act or otherwise by reason of
their proceeding in accordance with such opinion of counsel. Notwithstanding
anything to the contrary contained herein, the foregoing provisions of this
Section 6 shall not apply in situations where any Holder requesting such
registration owns five percent (5%) or more of the outstanding Common Stock.
3. Pursuant to Section 4.2 of the Agreement, Hughes hereby consents to,
and only to, the Company's grant of the registration rights specified in the
Spectra Registration Rights Agreement in the form attached hereto as Exhibit A.
4. Except as set forth and modified herein, the Agreement shall remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, this Amendment has been executed and delivered by the
parties set forth below.
THE COMPANY: FLIR SYSTEMS, INC.
By:/s/ J. Kenneth Stringer III, President
--------------------------------------
HUGHES: HE HOLDINGS, INC., FORMERLY KNOWN AS
HUGHES AIRCRAFT COMPANY
By:/s/ Robert M. Hall, Secretary
-----------------------------
