Exhibit 10.17
AMENDMENT
TO
INFRAMETRICS, INC. SHAREHOLDERS AGREEMENT
This Amendment to Shareholders Agreement (the "Amendment") is made and
entered into as of October 27, 1999, by and among FLIR Systems, Inc., an Oregon
corporation ("Acquiror"), Inframetrics, Inc., a Delaware corporation ("Target")
and each of the former shareholders of Target identified on the signature page
hereto (each a "Shareholder" and collectively, the "Shareholders").
WHEREAS, Acquiror, Target and the Shareholders (together, the "Parties"
entered into the Inframetrics, Inc. Shareholders Agreement dated as of March 19,
1999 (the "Agreement") in connection with that certain Agreement and Plan of
Merger dated as of March 19, 1999 (the "Merger Agreement") by and among
Acquiror, Irabu Acquisition Corporation, Target and the Shareholders.
WHEREAS, the Parties 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. Capitalized terms used herein but not defined herein shall have their
defined meanings as set forth in the Merger Agreement.
2. The last sentence of Section 4(b) of the Agreement is hereby deleted in
its entirety.
3. Section 7 of the Agreement is hereby amended and restated in its
entirety as follows:
7. Registration of Shares Issued in the Merger.
(a) Registrable Shares. For purposes of this Agreement
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"Registrable Shares" shall mean the shares of Acquiror Common Stock issued
in the Merger, including any and all Escrow Shares, but excluding shares of
Acquiror Common Stock issued in the Merger that have been sold or otherwise
transferred by the shareholders of Target who initially received such
shares in the Merger prior to the effective date of the Registration
Statement (as defined below) (collectively, the "Holders") and excluding
shares of Acquiror Common Stock issuable upon exercise of Target Options
(the issuance of which has been registered on Form S-8); provided, however,
that a distribution of shares of Acquiror Common Stock issued in the Merger
without additional consideration, to underlying beneficial owners (such as
the general and limited partners, shareholders or trust beneficiaries of a
Holder) shall not be deemed such a sale or transfer for purposes of this
Section 7 and such underlying beneficial owners shall be entitled to the
same rights under this Section
Page 1- AMENDMENT TO SHAREHOLDERS AGREEMENT
7 as the initial Holder from which the Registrable Shares were received and
shall be deemed a Holder for the purposes of this Section 7; and provided
further that, in the case of Elbit Limited, the sale or transfer of the
Acquiror Common Stock issued in the Merger by operation of law in a
transaction in which all of the outstanding equity interests of Elbit are
acquired by another party shall not be deemed such a sale or transfer and
such party shall be entitled to the same rights under this Section 7 as
Elbit Limited and shall be deemed a Holder for the purposes of this Section
7.
(b) Immediate Shelf Registration. On or before November 10,
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1999, Acquiror shall file with the SEC a shelf registration statement on
Form S-1 under the Securities Act with respect to the Registrable Shares
(the "Initial Shelf Registration Statement") and effect all such
registrations, qualifications and compliances (including, without
limitation, obtaining appropriate qualifications under applicable state
securities or "blue sky" laws and compliance with any other applicable
governmental requirements or regulations) as any Selling Stockholder may
reasonably request (it being understood that each Holder hereby requests
qualification or other clearance for the sale of Registrable Shares in the
states of the United States) and that would permit or facilitate the sale
of Registrable Shares. Acquiror shall maintain the effectiveness of the
Initial Shelf Registration Statement and other applicable registrations,
qualifications and compliances for up to eighteen (18) months (the
"Registration Effective Period") from the date that the Initial Shelf
Registration Statement first becomes effective (the "Initial Shelf
Effective Date"); provided, however, that Acquiror shall not be required to
maintain the effectiveness of the Initial Shelf Registration Statement
after the effective date of a registration statement on Form S-3 covering
the Registrable Shares. Following the Initial Shelf Effective Date, the
Selling Stockholders shall be permitted (subject in all cases to the
provisions of paragraph (e) of this Section 7) to offer and sell
Registrable Shares in the manner described in the Initial Shelf
Registration Statement. In the event that the Registrable Shares of any
Selling Stockholder are withdrawn from the Initial Shelf Registration
Statement in connection with a registration pursuant to paragraph (c) below
and all Registrable Shares held by such Selling Stockholder are not sold
thereunder, Acquiror shall, upon request, take such action as may be
required to cause such Registrable Shares to be covered by a shelf
registration statement and maintain the effectiveness of such registration
statement for up to twelve months from the effective date of such shelf
registration statement.
(c) Request for Registration
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(1) If Acquiror shall receive at any time after October 27,
1999, a written request from the Holders of Registrable Shares that
Acquiror file a registration statement under the Securities Act covering at
least thirty-five (35) percent of the Registrable Shares (or, in the case
of a request for registration pursuant to subparagraph (6), the percentage
specified therein), then
Page 2- AMENDMENT TO SHAREHOLDERS AGREEMENT
Acquiror shall, within ten (10) days after 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
Shares that the Holders request to be registered within 20 days of the
mailing of such notice by Acquiror. Acquiror shall use its best efforts to
maintain the effectiveness of such registration statement until the earlier
of (i) the completion of the sale of all Registrable Shares included in the
registration, or (ii) the first anniversary of the effective date of such
registration statement.
(2) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Shares covered
by their request by means of an underwriting, they shall so advise Acquiror
as a part of their request made pursuant to this Agreement and Acquiror
shall include such information in the written notice referred to in this
section. In such event, the right of any Holder to include his or her
Registrable Shares in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Shares in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall (together with Acquiror) 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 Acquiror.
(3) Notwithstanding any other provision of this Agreement, if
the underwriter advises Acquiror in writing that marketing factors require
a limitation of the number of shares to be underwritten, then Acquiror
shall so advise all Holders of Registrable Shares that would otherwise be
underwritten pursuant hereto, and the number of shares of Registrable
Shares that may be included in the underwriting shall be allocated among
all Holders who have requested the inclusion of Registrable Shares in the
registration in proportion (as nearly as practicable) to the number of
shares of Acquiror Common Stock owned by each such requesting shareholder;
provided, however, that the rights of the Holders to include Registrable
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Shares in the registration shall be subject to the rights and obligations
of the parties to the Registration Rights Agreement dated as of December 1,
1997 by and among FLIR, Spectra-Physics AB, Spectra-Physics Holdings PLC
and Pharos Holdings, Inc. Any Registrable Shares excluded or withdrawn from
such underwriting shall be withdrawn from the registration.
(4) Notwithstanding the foregoing, if Acquiror shall furnish to
Holders requesting registration pursuant to this Agreement, a certificate
signed by the Chairman of the Board of Directors of Acquiror stating that
in the good faith judgment of the Board of Directors of Acquiror, the
filing of such registration
Page 3- AMENDMENT TO SHAREHOLDERS AGREEMENT
statement would have a material adverse effect on Acquiror and it is
therefore essential to defer the filing of such registration statement,
Acquiror shall have the right to defer the filing of such registration
statement for a period of not more than 90 days after receipt of the
request of the Initiating Holders (the "Deferral Right"); provided,
however, that the Deferral Right shall not be exercised more than once in
any twelve (12) month period, except in the event that one or more requests
for registration are withdrawn pursuant to the following proviso; and
provided, further, that in the event that the Deferral Right is exercised,
the Initiating Holders shall be entitled to withdraw such request for
registration and, if the request is withdrawn, such requests for
registration will not count as one of the permitted requests for
registration hereunder.
(5) Except as otherwise provided in subsection (6) of this
paragraph (c), the Holders shall be limited to one (1) request for
registration pursuant to this paragraph (c).
(6) If any Registrable Shares are excluded from a registration
pursuant to subparagraph (3) of this paragraph (c) (the "Excluded Shares")
the Holders of the Excluded Shares shall be entitled to such additional
requests for registration pursuant to this paragraph (c) as may be required
to permit the registration of the Excluded Shares; provided, however, that
(i) only those Registrable Shares that were Excluded Shares in the
immediately preceding registration pursuant to this paragraph (c) shall be
entitled to participate in any additional request for registration pursuant
to this subparagraph (6), (ii) each request for registration of Excluded
Shares must cover at least thirty-five (35) percent of the Registrable
Shares that constitute Excluded Shares at the time of such request, and,
(iii) in no event shall Acquiror be obligated to effect more than two (2)
registrations pursuant to this paragraph (c) in any twelve month period.
(d) Form S-3 Registration Acquiror shall use its best efforts to
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become eligible to use Form S-3 for the resale of shares of Acquiror Common
Stock by Acquiror's shareholders under the Securities Act and to continue
thereafter to qualify at all times for registration of its capital stock
for resale by Acquiror's shareholders on Form S-3 or a successor form.
After April 1, 2000, any Holder or Holders may deliver to Acquiror a
written request that Acquiror effect a registration on Form S-3 and any
related qualification or compliance with respect to all or a part of the
Registrable Shares owned by such Holder or Holders. Upon receipt of such a
request, Acquiror will:
(1) within ten (10) days after receipt of such request, give
written notice of the proposed registration, and any related qualification
or compliance, to all other Holders; and
Page 4- AMENDMENT TO SHAREHOLDERS AGREEMENT
(2) as soon as practicable, using its best efforts, effect such
registration and all such qualifications and compliances as may be so
requested and as would permit or facilitate the sale and distribution of
all or such portion of such Holder's or Holders' Registrable Shares as are
specified in such request, together with all or such portion of the
Registrable Shares of any other Holder or Holders joining in such request
as are specified in a written request given within 30 days after receipt of
such written notice from Acquiror; provided, however, that Acquiror shall
not be obligated to effect any such registration, qualification or
compliance, pursuant to this section: (i) if Form S-3 is not available for
such offering by the Holders, (ii) if the aggregate offering price of the
Registrable Shares to be registered does not exceed $500,000, (iii) in any
particular jurisdiction in which Acquiror would be required to qualify to
do business or to execute a general consent to service of process in
effecting such registration, qualification or compliance and in which
Acquiror was not already qualified to do business or had not yet executed a
general consent to service of process, as the case may be, or (iv) if
Acquiror shall furnish to the Holders a certificate signed by the Chairman
of the Board of Directors of Acquiror stating that in the good faith
judgment of the Board of Directors of Acquiror and based on the advice of
counsel, it would be materially detrimental to Acquiror and its
shareholders for such Form S-3 Registration to be effected at such time
because it would require the disclosure of a material transaction or other
material information, in which event Acquiror shall have the right to defer
the filing of the Form S-3 registration statement for a period of not more
than 90 days after receipt of the request of the Holder or Holders under
this section; provided, however, that Acquiror shall not utilize this right
to delay the requested registration more than once in any 12 month period;
and
(3) subject to the foregoing, Acquiror shall file a Form S-3
registration statement covering the Registrable Shares and other securities
so requested to be registered as soon as practicable after receipt of the
requests of the Holders received in response to the notice given under
subparagraph (1) of this paragraph (d), and use its best efforts to
maintain the effectiveness of such registration statement until the earlier
of (i) the completion of the sale of all Registrable Shares included in the
registration, or (ii) eighteen (18) months after the effective date of such
registration statement.
(e) Suspension Right. Notwithstanding any other provision of
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this Section 7, Acquiror shall have the right at any time to require that
all Holders suspend further open market offers and sales of Registrable
Shares whenever, and for so long as, in the reasonable judgment of Acquiror
after consultation with counsel, the use of a registration statement and
the prospectus related thereto must be suspended due to the happening of
any event as a result of which the prospectus included in the 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
Page 5- AMENDMENT TO SHAREHOLDERS AGREEMENT
necessary to make the statements therein not misleading in the light of the
circumstances then existing (the "Suspension Right"). In the event
Acquiror exercises the Suspension Right, such suspension will continue for
the period of time reasonably necessary for disclosure to occur at a time
that is not detrimental to Acquiror and its shareholders or, if earlier,
until such time as the information or event is no longer material, each as
determined in good faith by Acquiror after consultation with counsel.
Notwithstanding the foregoing, Acquiror shall not impose the Suspension
Right at any time for more than thirty (30) consecutive days or more than a
total of ninety (90) days during any twelve (12) month period. Acquiror
will promptly give the Holders written notice of any such suspension and
will use its best efforts to minimize the length of the suspension. The
Registration Effective Period shall be extended by a period of time equal
to the duration of any period during which the Suspension Right is imposed.
(f) Obligations of Acquiror Whenever required under this
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Agreement to effect the registration of any Registrable Shares, Acquiror
shall use its best efforts to:
(1) Prepare and file with the SEC a registration statement with
respect to such Registrable Shares and use its best efforts to cause such
registration statement to become effective within the time period specified
in paragraphs (b), (c) or (d), as applicable, and, use its best efforts to
maintain the effectiveness of such registration statement during the time
period specified in paragraphs (b), (c) or (d), as applicable.
(2) As promptly as reasonably practicable, 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 respond to comments or requests for additional information
from the SEC or comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement.
(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
Shares owned by them.
(4) 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 Acquiror 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.
Page 6- AMENDMENT TO SHAREHOLDERS AGREEMENT
(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.
(6) As promptly as reasonably practicable, notify each Holder of
Registrable Shares 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.
(7) As promptly as reasonably practicable, notify each Holder
(i) when a prospectus or any prospectus supplement or post-effective
amendment has been filed, and with respect to the registration statement or
post-effective amendment, when the same has become effective, (ii) of any
request by the SEC or any other federal or state governmental authority for
amendments or supplements to the registration statement or prospectus or
for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of the registration statement or the initiation of any
proceeding for that purpose, and (iv) of the receipt by Acquiror of any
notification with respect to the suspension of the qualification of any of
the Registrable Shares for sale in any jurisdiction or the initiation of
any proceeding for that purpose.
(8) Use its best efforts to prevent the issuance of any stop
order suspending the effectiveness of the registration statement, and if
one is issued, use its best efforts to obtain the withdrawal of any stop
order suspending the effectiveness of the registration statement, or the
lifting of any suspension of the qualification (or exemption from
qualification) of any Registrable Shares for sale in any jurisdiction at
the earliest possible time.
(g) Obligations of Holders. Whenever a registration of
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Registrable Shares is required to be effected under this Agreement.
(1) Each Holder covenants and agrees that it shall promptly
furnish to Acquiror such information regarding themselves or the
Registrable Shares held by them, and the intended method of disposition of
such securities, and shall execute such documents in connection with such
registration, in each case, as shall be reasonably requested by Acquiror in
order to effect the registration of its Registrable Shares. Each Holder
agrees that it will not effect any disposition of its Registrable Shares
that would constitute a sale within the meaning
Page 7- AMENDMENT TO SHAREHOLDERS AGREEMENT
of the Securities Act (including a disposition which qualifies for an
exemption from registration thereunder) except in compliance with the
Securities Act and the regulations thereunder, including all applicable
prospectus delivery requirements.
(2) Each Holder covenants and agrees that it will promptly
advise the Company of any changes in the information concerning such Holder
contained in any registration statement required by this Agreement and that
such Holder will not make any sale of Registrable Shares pursuant to any
registration statement without complying with the prospectus delivery
requirements of the Securities Act.
(3) Each Holder acknowledges that occasionally there may be
times (as described in paragraph (e) of this Section 7 when Acquiror must
temporarily suspend the use of the prospectus forming a part of a
registration statement until such time as an amendment to the registration
statement has been filed by Acquiror and declared effective by the SEC, the
relevant prospectus supplemented by Acquiror or until such time as Acquiror
has filed an appropriate report with the SEC pursuant to the Exchange Act.
During any period in which sales are suspended, each Holder covenants and
agrees that it will not offer or sell any such Registrable Shares pursuant
to the registration statement or any such prospectus.
(h) Expenses. Acquiror agrees to bear the costs and expenses for any
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registration pursuant to this Section 7. The costs and expenses to be borne
by Acquiror for purposes of this Section 7 shall include, without
limitation, printing expenses (including a reasonable number of
prospectuses for circulation by the selling Holders), legal fees and
disbursements of counsel for Acquiror, legal fees and disbursements of one
counsel for the Holders in an amount not to exceed $25,000, "blue sky"
expenses, accounting fees and registration, filing and qualification fees,
but shall not include underwriting commissions or similar charges.
(i) Underwriting Requirements. In connection with any offering
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involving an underwriting of shares of capital stock of Acquiror, Acquiror
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 Acquiror and the underwriters.
(j) Delay of Registration. No Holder shall have any right to obtain
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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.
(k) Reports Under Securities Exchange Act of 1934. With a view to
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making available to the Holders the benefits of Rule 144 promulgated under
the
Page 8- AMENDMENT TO SHAREHOLDERS AGREEMENT
Securities Act ("Rule 144") and any other rule or regulation of the SEC
that may at any time permit a Holder to sell securities of Acquiror to the
public without registration, Acquiror agrees to: file with the SEC in a
timely manner all reports and other documents required of Acquiror under
the Securities Act and the Exchange Act; take all action required as a
condition to the availability of Rule 144 (or any successor rule
hereinafter in effect) and furnish to any Holder promptly upon written
request, so long as the Holder owns any Registrable Shares, (i) a written
statement by Acquiror that it has complied with the reporting requirements
of Rule 144, the Securities Act and the Exchange Act, (ii) a copy of the
most recent annual or quarterly report of Acquiror and such other reports
and documents so filed with the SEC by Acquiror, 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.
(l) Indemnification. In the event any Registrable Shares are
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included in a registration statement under this Agreement:
(1) To the extent not prohibited by law, Acquiror will
indemnify and hold harmless each Holder, the partners, shareholders,
officers, directors, employees and agents (individually, an "Affiliate" and
collectively, the "Affiliates") of each holder, any underwriter (as defined
in the Securities Act) for such Holder and each person, if any, who
controls such Holder, Affiliate or underwriter within the meaning of the
Securities Act or the Exchange Act or is under common control with, or is
controlled by such Holder, Affiliate or underwriter together with the
Affiliates of such controlling person (individually, a "Controlling Person"
and collectively, the "Controlling Persons"), against any losses, claims,
damages, liabilities (joint or several) or expenses 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, liabilities or
expenses (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 Acquiror 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 Acquiror
will pay to each such Holder, Affiliate, underwriter or Controlling Person,
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 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, expense or action if such
Page 9- AMENDMENT TO SHAREHOLDERS AGREEMENT
settlement is effected without the consent of Acquiror (which consent shall
not be unreasonably withheld), nor shall Acquiror be liable in any such
case for any such loss, claim, damage, liability, expense 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,
Affiliate, underwriter or Controlling Person.
(2) To the extent not prohibited by law, each selling
Holder will indemnify and hold harmless Acquiror, each of its directors,
each of its officers who has signed the registration statement, each
person, if any, who controls Acquiror 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, liabilities (joint or several) or expenses 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, liabilities or expenses (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, in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this section 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 exceed the gross
proceeds from the offering received by such Holder.
(3) Promptly after an indemnified party under this Agreement
has actual knowledge of any claim as to which indemnity may be sought
(including the commencement of any governmental or other 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 such claim 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
indemnified party and the indemnifying party, and the indemnified party may
participate in such defense at such party's expense; 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 retained by the
indemnifying party would
Page 10- AMENDMENT TO SHAREHOLDERS AGREEMENT
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 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. No indemnifying
party, in the defense of any such claim or litigation, shall (except with
the consent of the indemnified party) consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or litigation.
(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, liabilities
or expenses 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, liability
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 Violation(s) that resulted in
such loss, claim, damage, liability or expense, 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.
(5) The foregoing indemnity agreements of Acquiror 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.
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(6) The obligations of Acquiror and Holders under this
Agreement shall survive the completion of any offering of Registrable
Shares in a registration statement under this Agreement, and otherwise.
(m) Remedies. If, at any time after October 27, 1999, Acquiror
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is in material breach of any material covenant or obligation of Acquiror
set forth in this Section 7 then, at the sole discretion of the Holders,
the Holders, acting together, shall be entitled to either (i) seek damages
and other remedies for such breach, including any and all claims, causes of
action, obligations, liabilities, attorneys' fees and costs related
thereto, or (ii) receive a payment of late fees from Acquiror in the amount
of $10,000 for each day, if any, from the tenth business day after the date
Acquiror receives written notice of such breach from the Holders to the
date that such breach is cured.
4. Except as set forth and amended and restated herein, the Agreement
shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be duly
executed on the date and year first written above.
FLIR SYSTEMS, INC.,
an Oregon corporation
By /s/ J. Xxxxxxx Xxxxxxxx III
----------------------------------------
J. Xxxxxxx Xxxxxxxx III
President and Chief Executive Officer
INFRAMETRICS, INC.,
a Delaware corporation
By: /s/ Xxx X. Xxxxx
----------------------------------------
Name: Xxx X. Xxxxx
--------------------------------------
Title: President
-------------------------------------
Page 12- AMENDMENT TO SHAREHOLDERS AGREEMENT
SHAREHOLDERS: Advent Direct Investment Program Limited
Partnership
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Senior Vice President
--------------------------------
Advent Israel Limited Partnership
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Senior Vice President
--------------------------------
Advent Israel (Bermuda) Limited Partnership
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Senior Vice President
--------------------------------
Page 13- AMENDMENT TO SHAREHOLDERS AGREEMENT
EnviroTech Investment Fund I Limited
Partnership
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Senior Vice President
--------------------------------
Global Private Equity II Limited Partnership
By: Advent International Limited
Partnership, General Partner
By: Advent International Corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Senior Vice President
--------------------------------
Commonwealth Capital Ventures Limited
Partnership
By: Commonwealth Venture Partners, L.P.,
its General Partner
By: /s/ X. Xxxxx
-----------------------------------
Name: X. Xxxxx
---------------------------------
Title: General Partner
--------------------------------
Page 14- AMENDMENT TO SHAREHOLDERS AGREEMENT
Orion Capital Holdings, Limited Partnership
By: Orion Capital Partners, L.P., General
Partner
By: Eagle Capital Management Limited
Partnership, General Partner
By: Eagle Capital Holdings, Inc., General
Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Managing Director
--------------------------------
M-K I Partnership, Limited Partnership
By: Orion Capital Partners, L.P., General
Partner
By: Eagle Capital Management Limited
Partnership, General Partner
By: Eagle Capital Holdings, Inc., General
Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
---------------------------------
Title: Managing Director
--------------------------------
The Parthenon Group, Inc.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Title: Managing Director
--------------------------------
Inframetrics Investment Limited Partnership
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X. Xxxxx
---------------------------------
Title: President
--------------------------------
Page 15- AMENDMENT TO SHAREHOLDERS AGREEMENT
Elbit Limited
By: /s/ X. Xxxxxxx
-----------------------------------
Name: X. Xxxxxxx
---------------------------------
Title: V.P. and General Counsel
--------------------------------
/s/ Xxxxxx Xxxxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxxxx
/s/ Xxx Xxxxxxxxx
--------------------------------------
Xxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxx Xxxxx
--------------------------------------
Xxx Xxxxx
/s/ Xxxx Xxxxx
--------------------------------------
Xxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxxx
Page 16- AMENDMENT TO SHAREHOLDERS AGREEMENT
