SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 4)
FLIR Systems, Inc.
---------------
(Name of Issuer)
Common Stock, par value $.01 per share
------------------------------------------
(Title of Class of Securities)
302445 10 1
---------------
(CUSIP Number)
Seth H. Hoogasian, Esq.
General Counsel
(781) 622-1000
Thermo Electron Corporation
81 Wyman Street
Waltham, MA 02454-9046
------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
February 25, 2002
-----------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
Note. Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
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NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
1. Thermo Electron Corporation
IRS No. 04-2209186
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GOUP*
(a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS*
OO
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
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NUMBER OF SHARES 7. SOLE VOTING POWER
1,762,000
BENEFICIALLY OWNED BY
EACH REPORTING PERSON WITH
--------------------------- ------- -------------------------------------------
8. SHARED VOTING POWER
0
--------------------------- ------- -------------------------------------------
SOLE DISPOSITIVE POWER
9. 1,762,000
--------------------------- ------- -------------------------------------------
10. SHARED DISPOSITIVE POWER
0
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,762,000
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.6%
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14 TYPE OF REPORTING PERSON *
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
Thermo Electron Corporation hereby amends its statement on Schedule 13D
relating to the shares (the "Shares") of common stock, par value $0.01 per
share, of FLIR Systems, Inc. (the "Issuer"), as set forth below.
Item 2. Identity and Background
Item 2 is hereby amended and restated in its entirety as follows:
This Amendment is being filed by Thermo Electron Corporation (the
"Reporting Person"), pursuant to Rule 13d-2, to reflect changes in the
information previously reported under Items 4, 5, 6 and 7 of this Schedule 13D.
The Reporting Person develops, manufactures and markets technology-based
instruments, components and systems serving multiple markets, including, without
limitation, life sciences, telecommunications and food, drug and beverage
production. The Reporting Person also develops, manufactures and markets
diagnostic and monitoring products serving the healthcare industry.
The principal business address and principal office address of the
Reporting Person, a Delaware corporation, is 81 Wyman Street, Waltham,
Massachusetts 02454-9046.
Appendix A attached to this Schedule 13D sets forth with respect to each
executive officer and director of the Reporting Person his or her (a) name; (b)
residence or business address; (c) present principal occupation or employment
and the name, principal business and address of any corporation or other
organization in which such employment is conducted; and (d) citizenship. To the
knowledge of the Reporting Person, there is no person who may be deemed to be a
controlling person of the Reporting Person.
During the last five years, neither the Reporting Person nor (to the
knowledge of the Reporting Person) any executive officer or director of the
Reporting Person has been convicted in a criminal proceeding (excluding traffic
violations and similar misdemeanors).
During the last five years, neither the Reporting Person nor (to the
knowledge of the Reporting Person) any executive officer or director of the
Reporting Person has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction which resulted in a judgement,
decree or final order (i) enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or (ii)
finding a violation with respect to such laws.
Item 4. Purpose of Transaction
The last two paragraphs of Item 4 are hereby amended and restated in their
entirety as follows:
Since July 2001, the Reporting Person has from time to time sold Shares in
the open market as part of its overall corporate reorganization announced in
January 2000, whereby the Reporting Person has divested of noncore businesses
and assets. The Reporting Person expects to continue selling Shares in such
manner and in such amounts as it determines to be appropriate. In determining
whether to do so, the Reporting Person will consider various relevant factors,
including its evaluation of the Issuer's business, prospects and financial
condition, the market price and trading volume of the Shares, the Reporting
Person's cash requirements, tax and accounting considerations, other
opportunities available to the Reporting Person and general market and economic
conditions. On October 30, 2001, the Reporting Person entered into a "cashless
collar" agreement with Morgan Guaranty Trust Company of New York with respect to
250,000 Shares, the settlement of which is expected to occur on May 6, 2002. See
Item 6 of this Schedule 13D.
Except as set forth in this Item 4 and Item 6, neither the Reporting Person
nor, to the Reporting Person's knowledge, any of the executive officers or
directors of the Reporting Person has any current plans or proposals which
relate to or would result in any of the actions specified in clauses (a) through
(j) of Item 4 of Schedule 13D, although the Reporting Person and such other
persons do not rule out the possibility of effecting or seeking to effect any
such actions in the future.
Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended and restated in its entirety as follows:
(a) The Shares beneficially owned by the Reporting Person consist of
1,762,000 Shares, or approximately 10.6% of the outstanding Shares. As described
in Item 6 of this Schedule 13D, the Reporting Person has entered into a
"cashless collar" agreement with respect to 250,000 Shares the settlement of
which is expected to occur on May 6, 2002. To the knowledge of the Reporting
Person, the executive officers and directors of the Reporting Person
beneficially own no Shares within the meaning of Rule 13d-3 of the Securities
Exchange Act of 1934, as amended.
(b) The Reporting Person has the sole power to vote and dispose of the
Shares beneficially owned by it.
(c) Except as described below in this Item 5 and in Item 6 of this Schedule
13D, neither the Reporting Person nor, to the knowledge of the Reporting Person,
any person named in Appendix A beneficially has effected any transactions in
the Shares during the past 60 days.
The Reporting Person has effected the following open market sales with
respect to the Shares in the past 60 days:
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Date Amount Price per Share
---------------------------------------- --------------------------------------
02/25/02 205,000 $53.0670
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02/26/02 45,000 $53.9889
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02/28/02 85,000 $55.7135
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03/01/02 242,500 $54.1608
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03/04/02 172,500 $55.0310
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03/05/02 61,000 $57.4913
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03/06/02 66,500 $57.6047
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03/07/02 39,000 $57.2608
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03/08/02 83,500 $56.2172
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(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer.
Item 6 is hereby amended and restated in its entirety as follows:
On October 30, 2001, the Reporting Person entered into a "cashless collar"
agreement with Morgan Guaranty Trust Company of New York with respect to 250,000
Shares. Under the agreement, the Reporting Person wrote a covered call option
and purchased a put option with respect to the Shares. The call option has a
strike price of $47.2103 and the put option has a strike price of $38.7073. Only
one of the options can be "in-the-money" on the expiration date (May 6, 2002),
at which time the "in-the-money" option will be exercised (and settled for
cash), and the other option will expire. If neither option is "in-the-money" on
the expiration date, both options will expire. For purposes of determining
whether an option is "in-the-money," an average of the closing prices of the
Shares during the 10 trading days from April 23, 2002 to May 6, 2002 will be
used.
Item 7. Material to Be Filed as Exhibits.
The following document relating to the securities of the Issuer are filed
herewith:
Letter Agreement dated 30 October 2001 between Thermo Electron Corporation
and Morgan Guaranty Trust Company of New York
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, the
Reporting Person certifies that the information set forth in this statement is
true, complete and correct.
Date: April 3, 2002 THERMO ELECTRON CORPORATION
By: /s/ Theo Melas-Kyriazi
-----------------------------
Name: Theo Melas-Kyriazi
Title: Vice President and
Chief Financial Officer
Appendix A is hereby amended and restated in its entirety as follows:
APPENDIX A
The following individuals are executive officers or directors of Thermo
Electron Corporation ("Thermo Electron"). Unless otherwise noted, all such
individuals are citizens of the United States. Unless otherwise noted, the
business address of each executive officer and director of Thermo Electron is 81
Wyman Street, Waltham, Massachusetts 02454-9046.
Peter O. Crisp: Director, Thermo Electron
Mr. Crisp is the Vice Chairman of Rockefeller Financial Services, Inc.
Frank Jungers: Director, Thermo Electron
Mr. Jungers is a consultant on business and energy matters. His business
address is 822 NW Murray, Suite 242, Portland, Oregon 97229.
John L. LaMattina Director, Thermo Electron
Dr. LaMattina is the Executive Vice President of Pfizer Global Research and
Development. His business address is Pfizer, Inc. 50 Pequot Avenue, New London,
Connecticut 06230
Jim P. Manzi: Director, Thermo Electron
Mr. Manzi is Chairman of Stonegate Capital, a firm involved in personal
investments.
Robert A. McCabe: Director, Thermo Electron
Mr. McCabe is the Chairman of Pilot Capital Corporation, a firm
specializing in private investment and acquisition services. His business
address is Pilot Capital Corporation, 444 Madison Avenue, Suite 2103, New York,
New York 10022.
Robert W. O'Leary: Director, Thermo Electron
Mr. O'Leary is the Chairman and Chief Executive Officer of The Sagamore
Group, a firm specializing in change management situations with a focus on the
service sector.
Hutham S. Olayan: Director, Thermo Electron
Ms. Olayan is the President and a director of Olayan America Corporation, a
firm engaged in private investments, including real estate and advisory
services. Her business address is Olayan America Corporation, 505 Park Avenue,
Suite 1100, New York, New York 10022.
Michael E. Porter: Director, Thermo Electron
Dr. Porter is the Bishop William Lawrence University Professor at the
Harvard Business School, and a leading authority on competitive strategy and
international competitiveness. His business address is Harvard Business School,
Soldiers Field Road, Boston, Massachusetts 02163.
Elaine S. Ullian: Director, Thermo Electron
Ms. Ullian is President and Chief Executive Officer of Boston Medical
Center, a 550-bed academic medical center affiliated with Boston University. Her
business address is Boston Medical Center, Talbot 1, One Boston Medical Center
Place, Boston, Massachusetts 02118.
Richard F. Syron: Director, Chairman of the Board and Chief Executive Officer,
Thermo Electron
Marijn E. Dekkers: Director, President and Chief Operating Officer, Thermo
Electron
Mr. Dekkers is a citizen of The Netherlands.
Guy Broadbent: Vice President, Thermo Electron; President, Optical Technologies
Mr. Broadbent is a citizen of the United Kingdom.
Barry S. Howe: Vice President, Thermo Electron; President, Measurement
and Control
Marc N. Casper: Vice President, Thermo Electron; President, Life and
Laboratory Sciences
Seth H. Hoogasian: Vice President and General Counsel, Thermo Electron
Theo Melas-Kyriazi: Vice President and Chief Financial Officer,
Thermo Electron
Mr. Melas-Kyriazi is a citizen of Greece.
Peter E. Hornstra: Corporate Controller and Chief Accounting Officer,
Thermo Electron
JP MORGAN [Logo]
Morgan Guaranty Trust Company
of New York
P.O. Box 161
60 Victoria Embankment
London BC4Y OJP
England
30 October 2001
Thermo Electron Corporation
81 Wyman Street
Waltham, MA
02454
Attention: Mr. Melas-Kyriazi
Fax: 001 781-1181
Reference: 8016970
Re: Share Option Transaction
The purpose of this letter agreement (this "Confirmation") is to confirm
the terms and conditions of the Transaction entered into between MORGAN GUARANTY
TRUST COMPANY OF NEW YORK ("Morgan") and THERMO ELECTRON CORPORATION (the
"Counterparty") on the Trade Date specified below (the "Transaction"). This
Confirmation constitutes a "Confirmation: as referred to in the ISDA Master
Agreement specified below, and supersedes all or any prior written or oral
agreements in relation to the Transaction.
The definitions and provisions contained in the 1996 ISDA Equity
Derivatives Definitions as published by the International Swaps and Derivatives
Association, lnc., (the "Equity Definitions") (as amended and supplemented by
the 1998 ISDA Euro Definitions) are incorporated into this Confirmation. In the
event of any inconsistency between the Equity Definitions and this Confirmation,
this Confirmation shall govern.
1. This Confirmation evidences a complete and binding agreement between you and
us as to the terms of this Transaction to which this Confirmation relates. If
you and we are parties to a master agreement that governs transactions of this
type (whether in the form of the ISDA Master Agreement (Multicurrency-Cross
Border) (the "ISDA Form") or any other form (a "Master Agreement")), then this
Confirmation will supplement, form a part of and be subject to that Master
Agreement. If you are party to a master agreement that governs transactions of
this type (whether in the form of the ISDA Form or any other form) with The
Chase Manhattan Bank ("Chase", and such agreement, the "Chase Master
Agreement"), you and we agree that effective the Trade Date you and we are.
deemed to be parties to a master agreement containing all the terms (including
any Credit Support Document or other credit enhancement, pledge, security, or
similar agreement) that are contained in the Chase Master Agreement as if the
Chase Master Agreement had been entered into between you and us (such new
agreement between you and us, the "New Morgan Agreement") and this Confirmation
will supplement, form a part of, and be subject to the New Morgan Agreement.
Notwithstanding the foregoing, the parties agree that upon the effectiveness of
any merger between Chase and Morgan (i) all Transactions governed by the New
Morgan Agreement, effective as of such merger date, and at all times thereafter
be governed by the Chase Masster Agreement, (ii) each Confirmation forming a
party of, or stated to be governed by or subject to, the New Morgan Agreement
shall thereafter, constitute a Confirmation which supplements, forms a part of,
and is subject to the Chase Master Agreement and (iii) the New Morgan Agreement
shall terminate and be of no further force and effect.
If you and we are not parties to such a Master Agreement or are not deemed
hereby to be party to a New Morgan Agreement, then you and we agree to use all
reasonable efforts promptly to negotiate, execute and deliver an agreement in
the form of the ISDA Form (such agreement, the "New Master Agreement), with such
modifications as you and we will in good faith agree. Upon the execution by you
and us of a New Master Agreement, this Confirmation will supplement, form a part
of, and be subject to the New Master Agreement. All provisions contained or
incorporated by reference in that New Master Agreement, the Master Agreement, or
the New Morgan Agreement, as the case may be, upon its execution will govern
this Confirmation, except as expressly modified below. Until we execute and
deliver any New Master Agreement, this Confirmation, together with all other
documents referring to the ISDA Form (each a "Confirmation") confirming
transactions (each a "Transaction") entered into between us (notwithstanding
anything to the contrary in a Confirmation), shall supplement, form a part of,
and be subject to an agreement in the form of the ISDA Form as if we had
executed an agreement in such form (but without any Schedule) on the Trade Date
of the first such Transaction between us (such agreement or the ISDA Form,
hereinafter the ISDA Form Agreement"). In the event of any inconsistency between
the provisions of any ISDA Form Agreement, a Master Agreement, a New Morgan
Agreement or a New Master Agreement (such agreement as amended or supplemented
from time to time, the "Agreement") and this Confirmation, this Confirmation
will prevail for purposes of this Transaction.
2. The terms of the particular Transaction to which this Confirmation relates
are as follows:
General Terms
--------------------------------------------------------------------------------
Trade Date: October 23, 2001
Option Style: European.
Option Type: Cashless Collar (a combination of a Put and a Call).
Shares: The Common Stock, par value $0.01 per share, of FLIR
Systems Inc. (the "Issuer") (NASDAQ NMS identifies:
"FLIR")
Number of Options: 250,000
Option Entitlement: One Share per Option
Multiple Exercise: Inapplicable
Start Date: Trade Date
Initial Share Price: USD 42.3031
Call Strike Price: USD 47.2103 (111.60% of the initial Price) subject however to possible
adjustment in accordance with the provisions set forth under "Cash
Dividend Adjustment" in Section 6 of this Confirmation.
Put Strike Price: USD 38.7073 (91.50% of the Initial Price) subject however to possible
adjustment in accordance with the provisions set forth under "Cash
Dividend Adjustment" in Section 6 of this Confirmation
Premium: Not Applicable
Premium Payment Date: Not Applicable
Exchange(s): National Association of Securities Dealers Automated
Quotations System National Market System ("NASDAQ NMS")
Related Exchange(s): The principal exchange(s) with respect to options
contracts or future contracts, if any, on the Shares.
Procedure for Exercise
-----------------------
Expiration Time: The Valuation Time.
Expiration Date: The final Averaging Date (expected to be 6 May 02)
Automatic Exercise: Applicable.
Exercise Date: The Expiration Date
Valuation:
---------
Valuation Time: At the close of the regular trading session on the
Exchange (currently 4:00 p.m. New York City time), and
shall not refer to any extended trading hours.
Valuation Date: The Expiration Date
Averaging Dates: Ten consecutive Exchange Business Days from and including 23 Apr
02, subject to Market Disruption Event provisions.
"Market Disruption Event" means in relation to any Exchange Business
Day during the Valuation period, as determined by the
Calculation Agent, the occurrence or existence during the one half hour
period that ends at the Valuation Time of the material suspension of or
material imitation imposed on trading on (1) the Exchange trading in the
Shares or in stocks generally or (2) the Options Exchange in option
contracts related to the Shares; provided that a limitation on the hours
and number of days of trading resulting from a change in the regular
business hours of the Exchange will not constitute such an event.
Settlement Terms:
Cash Settlement: Applicable
Cash Settlement Amount: An amount, as calculated by the Calculation Agent and paid by the
Relevant Party (as defined below) to the other party on the Cash
Settlement Payment Date, equal to the Number of Options multiplied by
the Option Entitlement multiplied by the Strike Price Differential
equals zero, no amount shall be so payable by either party.
Strike Price Differential and Relevant Party mean (a) If the Settlement Price is greater than the Call Strike Price then
the Strike Price Differential is an amount equal to the excess of the
Settlement Price over the Call Strike Price, and the Relevant Party is
the Counterparty, or
(b) If the Settlement Price is less then the Put Strike Price, then
the Strike Price Differential is an amount equal to the excess of the
Put Strike Price over the Settlement Price, and the Relevant Party is
Morgan, or
(c) if the Settlement price is greater than or equal to the Put Strike
Price, and less than or equal to the Call Strike Price, then the
Strike Price Differential is zero and the Relevant Party is not
applicable.
Settlement Price: The arithmetic average of the Relevant Price for each Averaging Date
Relevant Price: The last offer price per Share reported by the Exchange
at the Valuation Time on the relevant Averaging Date.
Settlement Currency: USD.
Settlement Date: Three Currency Business Days after the Valuation Date.
Adjustments:
-----------
Method of Adjustment: Calculation Agent Adjustment.
Extraordinary Events:
Consequence of Merger Events
----------------------------
Alternative Obligation, provided that notwithstanding the foregoing, the
Calculation Agent will determine if the Merger Event affects the
theoretical value of the Transaction on the Merger Date (such
theoretical value being determined according to the value of the
Option immediately prior to and after such Merger Event on the Merger
Date) and Calculation Agent in its sole discretion may elect to adjust
the Call Strike price and the Put Strike Price to reflect the
characteristics (including volatility, dividend and policy and
liquidity) of the New Shares to be received as merger consideration.
Share-for-Other: Cancellation of Payment.
Share-for-Combined: Cancellation and Payment.
Nationalization or Insolvency: Cancellation and Payment.
-----------------------------
3. Calculation Agent:
------------------
Calculation Agent means Morgan.
4. Account Details:
----------------
Account for payments to Morgan.
Pay: MORGAN GUARANTY TRUST COMPANY OF NEW YORK
AC No: 670-07-054
Favour: MORGAN GUARANTY TRUST COMPANY OF NEW YORK
Ref: MGTCUS33XXX
Account for payments to Counterparty: Please advise.
5. Offices:
---------
(A) The Office of Morgan for the Transaction is:
Morgan Guaranty Trust Company
of New York
P.O. Box 161
60 Victoria Embankment
London EC4Y 0JP
England
(B) The Office of the Counterparty for the Transaction is:
Thermo Electron Corporation
81 Wyman Street
Waltham, MA
02454
6. Other Provisions:
-----------------
(a) Transfer: Neither party may transfer any or all of its rights or
obligations under this Transaction without the prior written consent of the
non-transferring party. All purported transfer that is not in compliance
with this provision shall be void.
(b) No Reliance, etc: Each party represents that (i) it is entering into the
Transaction evidenced hereby as principal (and not as agent or in any other
capacity): (ii) the other party is not acting as a fiduciary for it; (iii)
it is not relying upon any representations except those expressly set forth
in the Agreement or this Confirmation; (iv) it has consulted with its own
legal, regulatory, tax, business, investment, financial, and accounting
advisers to the extent it has deemed necessary, and it has made its own
investment, hedging, and trading decisions based upon it sown judgment and
upon any advice from such advisers as it has deemed necessary and not upon
any view expressed by the other party; and (v) it is entering into this
Transaction with a full understanding of the terms, conditions and risks
thereof and it is capable of and willing to assume those risks.
(c) Governing Law: This Confirmation will be governed by and construed in
accordance with the laws of the State of New York (without reference to
choice of law doctrine).
(d) Time of Dealing: The time of dealing will be confirmed by Morgan upon
written request.
(e) Definition of Buyer, Seller: For purposes of Article 2.2 of the Equity
Definitions and this Transaction, Counterparty shall be considered to be
the Buyer, and Morgan the Seller of a Put Option with a Strike Price equal
to the Put Strike Price. Morgan shall be considered to be the Buyer and the
Counterparty the Seller of a Call Option with a Strike price equal to the
Call Strike Price.
(f) Additional Representation: Counterparty represents that, as of the Trade
Date, neither it nor any of its affiliates was in possession of material
non-public information regarding the Issuer of the Shares.
(g) Early Termination Event: The occurrence of a Hedging Disruption Event will
constitute an Additional Termination Event permitting Morgan to terminate
the Transaction, with the Counterparty as the sole Affected Party and the
Transaction as the sole Affected Transaction (as such terms are used in the
ISDA Master Agreement)
"Hedging Disruption Event" means with respect to Morgan, as determined in
its sole discretion, the inability or impracticality, due to market
illiquidity, illegality, lack of hedging transaction, credit worthy market
participants or otherwise, to establish, re-establish or maintain any
transactions necessary or advisable to hedge, directly or indirectly, the
equity price risk of entering into and performing under the Transaction on
terms reasonable to Morgan or an affiliate in its discretion, including the
event that at any time Morgan concludes that it or any of its affiliates
are unable to establish, re-establish or maintain, a full hedge of its
positions in respect of the Transaction through share borrowing
arrangements on terms deemed reasonable to Morgan and otherwise at a cost
not significantly greater than that on the Trade Date.
(h) Certain Acknowledgements: Neither Morgan nor any of its affiliates under
any obligation to purchase Shares from Counterparty. If the Counterparty
elects to sell Shares during the term of this Transaction (whether at
maturity, upon early unwind or otherwise), Counterparty acknowledges that
the timing and manner of such disposition is to be determined solely be
Counterparty and that the sale price received from the sale of such Shares
may not, and in most cases, will not equal the Settlement Price.
At and around the time of settlement, Counterparty agrees not to sell any
Shares through delivery of a prospectus, without the prior consent of
Morgan.
(i) Cash Dividend Adjustment: If at any time during the period from and
excluding the Trade Date, to and including the Expiration Date, an
ex-dividend date for a cash dividend occurs with respect to the Shares (an
"Ex-Dividend Date"), and that dividend is greater than the Regular Dividend
on a per share basis, then the forward value of the difference between the
per share cash dividend corresponding to that Ex-Dividend Date and the
Regular Dividend shall be submitted from the Put Strike Price and the Call
Strike Price. The "Regular Dividend" shall mean $0.00 cents per share per
quarter.
The forward value of any such amount shall be calculated from the date on
which the dividend is paid by the Issuer (the "Dividend Payment Date")
through and including the Settlement Date. The interest rate used for the
calculation of such forward values shall be the mid-market interpolated US
Dollar zero coupon swap rate with a maturity corresponding to the
Settlement Date as determined by Morgan.
(j) Covenant of the Parties. Each of the Parties covenants to use reasonable
efforts to negotiate, conclude, execute and deliver an ISDA 1992 Master
Agreement with related Schedule and Credit Support Annex within 30 days
following the Trade Date. In the event such ISDA Master Agreement is not so
concluded, Morgan may elect to treat such failure as an Event of Early
Termination.
(k) Event of Early Termination. If Morgan wishes to exercise its right to
designate an Optional Early Termination Valuation pursuant to sub
paragraphs (g) or (j) above, it shall provide at least one Business Days'
notice to the Counterparty stating the election to do so and specifying (x)
the applicable subparagraph upon which the right to invoke such election is
based and (y) the date of Early Termination which shall be deemed to be the
Exercise Date. Such a designation shall constitute a Termination Event
applicable to this Transaction (as the sole Affected Transaction) and the
amount payable, if any, by one or the other party will be determined by the
Calculation Agent and there shall be no Affected Party in such case. For
the avoidance of doubt, if such right is exercised pursuant to the terms
hereof, (m) the Exercise Date shall be deemed the Valuation Date and (n)
the third Business Day following such deemed Valuation Date shall be the
Settlement Date. Any designation of an Optional Early Termination Valuation
Date in respect of the Transaction shall not constitute an Event of Default
or Termination Event in respect of the New Master Agreement, if in effect
at such time. The terms "Event or Early Termination", "Affected
Transaction", "Affected Party", and "Illegality" are as defined, and shall
have the meanings ascribed to them, in the either the ISDA Form Agreement
of the New Master Agreement, as applicable.
(l) Share De-listing Event: If at any time during the period from and including
the Trade Date, to and including the Valuation Date, the Shares cease to be
listed on the Exchange for any reason (other than a Merger Event) and are
not immediately re-listed as of the date of such de-listing on another
exchange in the same jurisdiction as the Exchange (the "Successor
Exchange'), then Cancellation and Payment shall apply, and the date of the
de-listing shall be deemed the date of termination for purposes of
calculating any payment due from one party to the other in connection with
the cancellation of this Transaction. If the Shares are immediately
re-listed on a Successor Exchange upon their de-listing from the Exchange,
this Transaction shall continue in full force and effect, provided that the
Successor Exchange shall be deemed to be the Exchange for all purposes
hereunder. In addition, the Calculation Agent shall make any adjustments it
deems necessary to the terms of the Transaction in accordance with
Calculation Agent Adjustment method as defined under Section 9.1(c) of the
Equity Definitions.
Each party agrees and acknowledges that (i) J.P. Morgan Securities, Inc.,
an affiliate of Morgan ("JPMSI"), has acted solely as agent and not a
principal with respect to this Transaction and (ii) JPMSI has no obligation
or liability, by way of guaranty, endorsement or otherwise, in any manner
in respect of this Transaction (including, if applicable, in respect of the
settlement thereof). Each party agrees it will look solely to the other
party (or any guarantor in respect thereof) for performance of such other
party's obligations under this Transaction.
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing this Confirmation and returning it to EDG Documentation
JP Morgan Securities Inc., 277 Park Avenue, 11th Floor, New York, NY 10172-3401,
or by fax on 212 648 5622.
Very truly yours,
J.P. Morgan Securities Inc., as agent for
Morgan Guaranty Trust Company of New York
By: /s/ Pedro Gonzalez De Cosio
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Name: Pedro Gonzalez De Cosio
Title: Vice President
Accepted and confirmed as of
the date first above written
THERMO ELECTRON CORPORATION
By: /s/ Theo Melas-Kryiazi
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Name: Theo Melas-Kyriazi
Title: Vice President and Chief Financial Officer