FLORIDA 65-0341002
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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THOMAS S. IRWIN
EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
3000 TAFT STREET 3000 TAFT STREET
HOLLYWOOD, FLORIDA 33021 HOLLYWOOD, FLORIDA 33021
(954) 987-6101 (954) 987-6101
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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As soon as practicable after this Registration Statement becomes effective.
PROPOSED MAXIMUM
AGGREGATE PROPOSED MAXIMUM
TITLE OF SHARES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) REGISTRATION FEE
Common Stock, $.01 par value per share .. 218,590 $ 41.25 $9,016,838 $2,733
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218,590 SHARES
[GRAPHIC OMITTED]
COMMON STOCK
The Selling Shareholders have indicated to the Company that they presently intend to retain ownership of a substantial portion of the Shares. However, the Selling Shareholders may sell all or any portion of the Shares in one or more transactions (which may include "block" transactions) on the American Stock Exchange, in the over-the-counter market, in negotiated transactions or in a combination of such methods of sales, at fixed prices which may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. The Selling Shareholders may effect such transactions by selling the Shares directly to purchasers, or may sell to or through agents, dealers or underwriters designated from time to time and such agents, dealers or underwriters may receive compensation in the form of discounts, concessions or commissions from the Selling Shareholders and/or the purchaser(s) of Shares for whom they may act as agent or to whom they may sell as principals, or both. See "Plan of Distribution" and "Selling Shareholders."
March 23, 1998
TABLE OF CONTENTS
PAGE
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Available Information .................................... 2
Incorporation of Certain Documents by Reference .......... 2
The Company .............................................. 3
Risk Factors ............................................. 5
Selling Shareholders ..................................... 10
Plan of Distribution ..................................... 10
Legal Matters ............................................ 11
Experts .................................................. 11
Additional Information ................................... 11
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AVAILABLE INFORMATION
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant to the Exchange Act are hereby incorporated by reference in this Prospectus:
(1) The Company's Registration Statement on Form S-3 dated November 7, 1997;
(2) The Company's Annual Report on Form 10-K, as amended by Form 10-K/A, for the year ended October 31, 1997;
(3) The Company's Quarterly Report on Form 10-Q for the three months ended January 31, 1998;
(4) The Company's definitive Proxy Statement, dated February 16, 1998, filed in connection with the Company's 1998 Annual Meeting of Shareholders; and
(5) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Exchange Act, including any amendments or reports
filed for the purpose of updating such description.
All documents filed by the Company pursuant to sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of the Shares shall be deemed to be incorporated by reference in this Prospectus. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a Prospectus is delivered, upon written or oral request of such person, a copy of any and all of the information that has been incorporated by reference in this Prospectus (excluding exhibits unless such exhibits are specifically incorporated by reference into such documents). Please direct such requests to the Chief Financial Officer, HEICO Corporation, 3000 Taft Street, Hollywood, Florida, 33021, telephone number (954) 987-4000.
THE COMPANY
The following summary is qualified in its entirety by the more detailed information contained in this Prospectus and all other information, including the financial information and statements and notes thereto, incorporated herein by reference.
GENERAL
The Company is one of the world's largest non-OEM manufacturers of FAA-approved jet engine replacement parts and a market leader in the sale of certain ground support equipment ("GSE") to the airline and defense industries. The Company's Flight Support Group, which currently accounts for approximately 65% of the Company's revenues, operates in the jet engine service market through (i) the research and development, design, manufacture and sale of FAA-approved jet engine replacement parts in direct competition with original equipment manufacturers ("OEMs"), (ii) the repair, maintenance and overhaul of jet engine and airframe components, and (iii) the manufacture of specialty aviation and defense component parts as a subcontractor for OEMs and the U.S. government. The Company's Ground Support Group, which currently accounts for approximately 35% of the Company's revenues, manufactures various types of GSE, including ground power, air start and air conditioning units, as well as certain electronic equipment for commercial airlines and military agencies.
In September 1997, the Company purchased Northwings, an FAA-authorized repair and overhaul facility that services aircraft engine parts and airframe accessories, including fuel, hydraulic and pneumatic components. The purchase price for Northwings was $10.5 million, consisting of approximately $7.0 million in cash and 232,360 shares of the Company's Common Stock. In the nine months ended June 30, 1997, Northwings had revenues of approximately $6.4 million and operating income of approximately $1.9 million.
In October 1997, the Company entered into a strategic alliance with Lufthansa Technik AG ("Lufthansa"), the technical subsidiary of Lufthansa German Airlines, whereby Lufthansa invested approximately $26 million in the Company's Flight Support Group, including approximately $16 million to be paid to the Flight Support Group over three years pursuant to a research and development cooperation agreement which will partially fund accelerated development of additional FAA-approved replacement parts for jet engines. In addition, Lufthansa and the Flight Support Group agreed to cooperate regarding technical services and marketing support for jet engine parts on a worldwide basis.
Through a combination of internal growth and acquisitions, the Company increased revenues 84% from $34.6 million for the year ended October 31, 1996 to $63.7 million for the year ended October 31, 1997, and earnings per share from continuing operations increased 78% from $0.41 per share for the year ended October 31, 1996 to $.73 for the year ended October 31, 1997.
The Company's core strategy is to provide domestic and foreign commercial air carriers (passenger and cargo) and aircraft repair (airmotive) companies with an FAA-approved alternative source for certain jet engine parts at substantial savings to the prices charged for functionally identical parts by the respective jet engine OEMs which have historically been the sole source for such replacement parts. The Company estimates the annual market for jet engine repair, refurbishment and overhaul to be approximately $6.5 billion, of which approximately $4.0 billion reflects annual sales of jet engine replacement parts. The Company estimates that the annual worldwide commercial GSE market is approximately $1.5 billion and believes that the GSE market is highly fragmented, with a significant number of participants supplying only one or two types of equipment.
RECENT DEVELOPMENTS
At the Company's 1998 Annual Meeting of Shareholders held on March 17, 1998, the shareholders re-elected the current Board of Directors and approved the following proposals:
1. An amendment to the Company's 1993 Stock Option Plan (the "Plan") to increase the number of shares of Common Stock issuable thereunder from 1,282,500 shares to 1,682,500 shares.
2. An amendment to Article III of the Company's Articles of Incorporation (the "Articles") to increase the number of authorized shares of Common Stock from 20,000,000 shares to 30,000,000 shares.
3. An amendment to Article III of the Company's Articles (the "Dual Class Amendment") to add to the Company's authorized capital stock 30,000,000 shares of Class A Common Stock, $.01 par value per share (the "Class A Common Stock"), having 1/10th vote per share.
On March 19, 1998 the Company caused to be filed with the Secretary of State of the State of Florida Articles of Amendment providing for the amendments to Article III set forth above, whereupon such amendments became immediately effective. On March 19, 1998, the Board of Directors declared a dividend, payable on April 23, 1998 to Common Stock holders of record on April 9, 1998, of one share of Class A Common Stock for each two outstanding shares of Common Stock.
Unless the context otherwise requires, the terms "Company" and "HEICO" as used in this Prospectus refer to HEICO Corporation, its predecessors and subsidiaries. The Company's principal executive offices are located at 3000 Taft Street, Hollywood, Florida 33021, and its telephone number is (954) 987-4000.
STATEMENT OF FINANCIAL ACCOUNTING STANDARDS NO. 128
In February 1997, the Financial Accounting Standards Board issued Statement of Financial Accounting Standards No. 128, "Earnings per Share" ("SFAS 128"). SFAS 128 replaced the previously reported primary and fully diluted earnings per share with basic and diluted earnings per share. Basic earnings per share excludes dilution and is computed by dividing net income by weighted average common shares outstanding for the period. Diluted earnings per share reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock.
The following table presents selected financial data which includes earnings per share amounts calculated in accordance with SFAS 128. The table includes all periods for which earnings per share amounts were previously presented in the Company's Annual Report on Form 10-K, as amended, for the year ended October 31, 1997, and Quarterly Report on Form 10-Q for the three months ended January 31, 1998 which are incorporated by reference herein.
FISCAL YEAR ENDED OCTOBER 31,
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1993 1994 1995 1996 1997
-------------- -------------- -------------- -------------- --------------
(IN THOUSANDS OF DOLLARS, EXCEPT PER SHARE DATA)
Net Sales ...................... $ 19,856 $ 19,212 $ 25,613 $ 34,565 $ 63,674
Net Income ..................... $ 984 $ 1,851 $ 2,695 $ 9,892 $ 7,019
Net Income Per Share
--Basic ....................... $ 0.13 $ 0.25 $ 0.36 $ 1.27 $ 0.87
--Diluted ..................... $ 0.12 $ 0.24 $ 0.34 $ 1.11 $ 0.73
Shares Used in Computation
--Basic ....................... 7,667,281 7,472,748 7,538,238 7,786,389 8,026,906
--Diluted ..................... 7,785,294 7,567,444 7,953,555 8,854,726 9,612,205
Net Proforma Income Per Share(1)
--Basic ....................... $ 0.09 $ 0.17 $ 0.24 $ 0.85 $ 0.58
--Diluted ..................... $ 0.08 $ 0.16 $ 0.23 $ 0.74 $ 0.49
Shares Used in Proforma Computation(1)
--Basic ....................... 11,500,922 11,209,122 11,307,357 11,679,584 12,040,359
--Diluted ..................... 11,677,941 11,351,166 11,930,333 13,282,089 14,418,308
THREE MONTHS ENDED
JANUARY 31,
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1997 1998
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(UNAUDITED)
(IN THOUSANDS OF DOLLARS,
EXCEPT PER SHARE
DATA)
Net Sales ...................... $ 14,267 $ 19,783
Net Income ..................... $ 1,594 $ 2,282
Net Income Per Share
--Basic ....................... $ 0.20 $ 0.28
--Diluted ..................... $ 0.17 $ 0.22
Shares Used in Computation
--Basic ....................... 7,930,070 8,289,377
--Diluted ..................... 9,413,488 10,206,517
Net Proforma Income Per Share(1)
--Basic ....................... $ 0.13 $ 0.18
--Diluted ..................... $ 0.11 $ 0.15
Shares Used in Proforma Computation(1)
--Basic ....................... 11,895,105 12,434,066
--Diluted ..................... 14,120,232 15,309,776
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RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION CONTAINED AND/OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS, THE FOLLOWING FACTORS SHOULD BE CONSIDERED CAREFULLY IN EVALUATING THE COMPANY AND ITS BUSINESS BEFORE PURCHASING ANY OF THE COMMON STOCK OFFERED HEREBY.
THIS PROSPECTUS (INCLUDING THE INFORMATION INCORPORATED HEREIN BY REFERENCE) CONTAINS STATEMENTS THAT CONSTITUTE "FORWARD-LOOKING STATEMENTS" WITHIN THE MEANING OF SECTION 27A OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND SECTION 21E OF THE EXCHANGE ACT. THE WORDS "EXPECT," "ESTIMATE," "ANTICIPATE," "PREDICT," "BELIEVE" AND SIMILAR EXPRESSIONS AND VARIATIONS THEREOF ARE INTENDED TO IDENTIFY FORWARD-LOOKING STATEMENTS. SUCH STATEMENTS APPEAR IN A NUMBER OF PLACES IN THIS PROSPECTUS AND INCLUDE STATEMENTS REGARDING THE INTENT, BELIEF OR CURRENT EXPECTATIONS OF THE COMPANY, ITS DIRECTORS, OR ITS OFFICERS WITH RESPECT TO, AMONG OTHER THINGS: (I) TRENDS AFFECTING THE AVIATION INDUSTRY GENERALLY AND THE SEGMENTS IN WHICH THE COMPANY OPERATES; AND (II) THE COMPANY'S BUSINESS AND GROWTH STRATEGIES, INCLUDING ITS RESEARCH AND DEVELOPMENT PLANS, ITS MANUFACTURE OF ADDITIONAL REPLACEMENT PARTS AND POTENTIAL ACQUISITIONS. PROSPECTIVE INVESTORS ARE CAUTIONED THAT ANY SUCH FORWARD-LOOKING STATEMENTS ARE NOT GUARANTEES OF FUTURE PERFORMANCE AND INVOLVE RISKS AND UNCERTAINTIES, AND THAT ACTUAL RESULTS MAY DIFFER MATERIALLY FROM THOSE PREDICTED IN THE FORWARD-LOOKING STATEMENTS, AS A RESULT OF VARIOUS FACTORS, INCLUDING THOSE SET FORTH BELOW.
DEPENDENCE ON AVIATION INDUSTRY
The Company's operations are focused on the design, manufacture and sale of jet engine replacement parts, repair and overhaul services on certain jet engine and aircraft parts and the design and manufacture of GSE. Because the Company's customers consist of aircraft operators, repair and overhaul facilities that service aircraft operators, OEMs and the United States government, the Company's business is impacted by the economic factors which generally affect the aviation industry. When such factors adversely affect the aviation industry, they tend to reduce the overall demand for jet engine replacement parts, causing downward pressure on pricing and increasing the credit risk associated with conducting business with industry participants. There can be no assurance that economic and other factors which affect the aviation industry will not have a material adverse effect on the Company's business, financial condition and results of operations.
A number of the Company's existing and prospective customers are domestic and foreign passenger airlines, freight carriers and aircraft leasing companies, or service providers to such companies, all of which may suffer from the factors which adversely affect the aviation industry. As a result, certain of these customers may pose credit risks to the Company. The Company's inability to collect receivables from a substantial sale could adversely affect the Company's financial position and results of operations for a particular period. Although the Company's bad debt loss was less than 1.0% of sales for the year ended October 31, 1997, there can be no assurance that the Company will not incur significant bad debt losses in the future.
GOVERNMENT REGULATION
The repair and overhaul of aircraft engines is highly regulated by governmental agencies throughout the world, including the FAA, and is supplemented by guidelines established by OEMs which generally require that engines be overhauled and certain engine parts be replaced after a certain number of flight hours or cycles (take-offs and landings).
The jet engine replacement parts that the Company sells to its customers must be accompanied by documentation which enables the customer to comply with applicable regulatory requirements, as well as meet certain standards of airworthiness established by the FAA or the equivalent regulatory agencies in other countries. Specific regulations vary from country to country, although regulatory requirements in other countries are generally satisfied by compliance with FAA requirements. If material authorizations or approvals were revoked or suspended, the operations of the Company would be
adversely affected. There can be no assurance that new and more stringent government regulations will not be adopted in the future or that any such new regulations, if enacted, would not have an adverse impact on the Company.
DEPENDENCE ON THE JT8D AIRCRAFT ENGINE AFTERMARKET
The Company's business, financial condition and results of operations are substantially influenced by the JT8D aircraft engine and engine parts. Approximately 51% of the Company's net sales during the year ended October 31, 1997 consisted of sales of replacement parts or repair and overhaul services for the JT8D aircraft engine.
The aftermarket for JT8D aircraft engine parts is substantially influenced by supply and demand. A significant increase in supply, as a result of an unanticipated wind-down or liquidation of an air carrier operating a large number of JT8D aircraft engines, or a reduction of demand, as a result of a change in preferences or the imposition of regulations affecting the use of JT8D aircraft engines, could have a material adverse effect on the Company's business, financial condition and results of operations. For example, the FAA and the European Union have implemented noise reduction regulations which reduce the number of older model JT8D aircraft engines which may be operated in the United States and the member nations of the European Union, respectively, unless noise reduction equipment, known as "hush-kits," are added to the aircraft engines. Additional noise restriction quotas imposed by communities surrounding certain major European cities further restrict the operation of hush-kitted aircraft engines in those markets. Failure to hush-kit JT8D aircraft engines could significantly reduce the demand for JT8D aircraft engines, resulting in a potential oversupply of JT8D aircraft engines and engine parts which could decrease the value of the Company's inventory and have a material adverse effect on the Company's business, financial condition and results of operations. There can be no assurance that aircraft operators will hush-kit their remaining older model JT8D aircraft engines rather than replace them with newer, quieter aircraft engines. Furthermore, other regulations in both the United States and the European Union impose more stringent inspection, upgrading, maintenance and retrofit requirements on aging aircraft and aircraft engines which increase the cost of operating older model aircraft and aircraft engines. In addition, the United States Environmental Protection Agency (the "EPA") and various agencies of the European Union have sought the adoption of stricter standards limiting the emissions of nitrous oxide from aircraft engines. If such measures are adopted, the utilization of JT8D aircraft engines could become substantially more costly in the event modifications must be made to bring aircraft engines into compliance.
As a result of its focus on the JT8D aircraft engine, the Company has limited experience with engine parts for other aircraft engine types. It will be necessary for the Company to expand its business to other aircraft engine types in preparation for the eventual decline in the JT8D aircraft engine aftermarket. There can be no assurance that the Company will be able to profitably expand into new markets with other aircraft engines or that structural differences in those emerging after markets will allow the Company to achieve acceptable levels of net sales and gross profit.
COMPETITION
The Company faces significant competition in each of its businesses. The Company's replacement parts divisions compete primarily with the industry's leading jet engine OEMs. The overhaul and repair divisions of the Company's Flight Support Group compete with (i) major commercial airlines, many of which operate their own maintenance and overhaul units, (ii) OEMs, which manufacture, repair and overhaul their own parts and (iii) other independent service companies. The Company's Ground Support Group competes in a highly fragmented marketplace with a small number of well capitalized companies.
The aviation aftermarket supply industry is highly fragmented, has several highly visible leading companies and is characterized by intense competition. Certain of the Company's competitors have substantially greater name recognition, complementary lines of business and financial, marketing and
other resources than the Company. In addition, OEMs, aircraft maintenance providers, leasing companies and FAA-certificated repair facilities may vertically integrate into the supply industry, thereby significantly increasing industry competition. Moreover, smaller competitors of the Company may be in a position to offer more attractive pricing of parts as a result of lower labor costs or other factors. A variety of potential actions by any of the Company's competitors, including a reduction of product prices or the establishment by competitors of long-term relationships with new or existing customers, could have a material adverse effect on the Company's business, financial condition and results of operations. There can be no assurance that the Company will continue to compete effectively against present or future competitors or that competitive pressures will not have a material and adverse effect on the Company's business, financial condition and results of operations.
LITIGATION
In November 1989, the Flight Support Group was named a defendant in a complaint filed by United Technologies Corporation ("UTC") in the United States District court for the Southern District of Florida. The complaint, as amended in 1995, alleged infringement of a patent, misappropriation of trade secrets and unfair competition relating to certain jet engine parts and coatings sold by the Flight Support Group in competition with Pratt & Whitney, a division of UTC and sought damages of approximately $30.0 million. In August 1997, a Motion for Summary Judgment filed by the Company on a portion of the lawsuit was granted by the United States District Court Judge. The Summary Judgment dismissed UTC's claims for misappropriation of trade secrets and unfair competition, finding that Florida's statute of limitations bars such claims. In September 1997, UTC served a Motion for Reconsideration of the Court's Motion for Summary Judgment. In October 1997, UTC's Motion for Reconsideration was denied. On January 27, 1998, a Motion for Summary Judgment filed by the Company on the sole remaining count in UTC's complaint (for patent infringement) was granted by the United States District Court Judge. The Summary Judgment dismissed UTC's remaining claim, finding that the Company did not infringe UTC's patent. As a result of these rulings, the only claims currently pending are the Company's counterclaims against UTC. UTC may challenge these rulings in further court proceedings. The Company intends to vigorously pursue its counterclaims. The ultimate outcome of this litigation is not certain at this time and no provision for litigation costs and/or gain or loss, if any, has been made in the consolidated financial statements. The legal costs, management efforts and other resources that have been and could continue to be incurred by the Company are substantial. There can be no assurance that the lawsuit will not have a material adverse effect on the Company's business, results of operations or financial condition.
PRODUCT LIABILITY AND CLAIMS EXPOSURE
The Company's jet engine replacement parts and repair and overhaul services expose it to potential liabilities for personal injury or death as a result of the failure of an aircraft component that has been designed, manufactured or serviced by the Company. The commercial aviation industry is prone to catastrophic losses which often exceed policy limits. While the Company believes that its liability insurance is adequate to protect it from such liabilities and no material claims related to such liabilities have been made against the Company, no assurance can be given that claims will not arise in the future or that such insurance coverage will be adequate. An uninsured or partially insured claim, or a claim for which third-party indemnification is not available, could have a material adverse effect upon the Company. Additionally, there can be no assurance that insurance coverage can be maintained in the future at an acceptable cost. Any such liability not covered by insurance or for which third party indemnification is not available could have a material adverse effect on the business, financial condition or results of operations of the Company.
MANAGEMENT OF GROWTH
The Company has experienced rapid growth in recent years and intends to continue to pursue an aggressive growth strategy, both through acquisitions and internal expansion of its products and services. The growth experienced by the Company to date has placed, and could continue to place,
significant demands on the Company's administrative and operational resources. There can be no assurance that the Company will be able to achieve growth effectively or manage any such growth successfully, and the failure to do so could have a material adverse effect on the Company's business, financial condition and results of operations.
A key element of the Company's strategy has been, and continues to be, growth through the acquisition of additional companies engaged in the aviation industry. The Company's ability to grow by acquisition is dependent upon, and may be limited by, the availability of suitable acquisition candidates and capital. In addition, growth by acquisitions involves risks that could adversely affect the Company's operating results, including diversion of management's attention, difficulties in integrating the operations and personnel of acquired companies, the amortization of acquired intangible assets and the loss of key employees of acquired companies. There can be no assurance that the Company will be able to obtain the capital necessary to pursue its acquisition strategy, consummate acquisitions on satisfactory terms or, if any such acquisitions are consummated, satisfactorily integrate such acquired businesses into the Company. In addition, future acquisitions could result in the use of a significant portion of the Company's available cash, or if such acquisition is made utilizing the Company's securities, could result in significant dilution to the Company's shareholders.
ENVIRONMENTAL LIABILITIES
The Company's business operations and facilities are subject to a number of federal, state and local environmental laws and regulations. Although the Company believes that its operations and facilities are in material compliance with such laws and regulations, there can be no assurance that future changes in such laws, regulations or interpretations thereof or the nature of the Company's operations will not require the Company to make significant additional capital or operating expenditures, or changes in operational procedures to ensure compliance in the future. The Company does not maintain environmental liability insurance, and if the Company were required to pay the expenses related to any environmental liabilities, such expenses could have a material adverse effect on the business, financial condition or results of operations of the Company.
CUSTOMER CONCENTRATION
Although no individual customer directly accounted for more than 10% of the Company's combined net sales during the fiscal year ended October 31, 1997, the Company's net sales to its five largest customers accounted for approximately 34% of total net sales. The continuing consolidation of various segments of the aviation industry, including vertical integration of OEMs and repair and overhaul businesses, could significantly increase the concentration of the Company's customer base. The loss of, or significant curtailments of purchases by, the Company's significant customers could have a material adverse effect on the Company's business, financial condition and results of operations.
TECHNOLOGICAL DEVELOPMENTS
The aviation industry is constantly undergoing development and change and, accordingly, it is likely that new products, equipment and methods of repair and overhaul service will be introduced in the future. In order to keep pace with any new developments, the Company may need to expend significant capital to purchase new equipment and machines, to train its employees in the new methods of production and service or to conduct research and development activities. There can be no assurance that the Company will be successful in developing new products or that such capital expenditures will not have a material adverse effect on the Company. In addition, the Company's competitors may develop methodologies that could potentially preclude the Company from the design and manufacture of certain jet engine replacement parts and, as a result, could have a material adverse effect on the Company.
DEPENDENCE ON KEY PERSONNEL
The Company's success is substantially dependent on the performance, contributions and expertise of its senior management team, as well as engineering and other technical employees. The loss of the services of any of its executive officers or other key employees or the Company's inability to continue to attract, retain or motivate the necessary personnel could have a material adverse effect on the business, financial condition and results of operations of the Company.
CONTROL BY PRINCIPAL SHAREHOLDERS
As of the date of this Prospectus, the Company's executive officers and entities controlled by the Company's executive officers, the Company's 401(k) Plan, and members of the Board of Directors collectively, beneficially own approximately 41% of the Company's outstanding Common Stock. Accordingly, such persons will be able to substantially influence the election of members of the Company's Board of Directors and the control of the business, policies and affairs of the Company.
FACTORS INHIBITING TAKEOVER
Certain provisions of the Company's Articles and Bylaws may be deemed to
have anti-takeover effects and may discourage, delay, defer or prevent a
takeover attempt that a shareholder might consider in its best interest. These
provisions (i) establish certain advance notice procedures for nomination of
candidates for election as directors and for shareholder proposals to be
considered at annual shareholders' meetings, (ii) provide that special meetings
of the shareholders may be called by the Chairman of the Board of Directors
(the "Board"), the President of the Company or by a majority of the Board,
(iii) authorize the issuance of 10,000,000 shares of preferred stock with such
designations, rights, preferences and limitations as may be determined from
time to time by the Board, and (iv) authorize the issuance of 30,000,000 shares
of Class A Common Stock having 1/10th vote per share. Accordingly, the Board is
empowered, without shareholder approval, to issue preferred stock with
dividend, liquidation, conversion, voting or other rights that could adversely
affect the voting powers or other rights of holders of the Company's Common
Stock, as well as issue Class A Common Stock, which could help maintain
existing shareholders' voting power and deter or frustrate takeover attempts of
the Company that a holder of Common Stock might consider in his best interest.
In addition, in November 1993, the Company declared a distribution of a
preferred stock purchase right (the "Rights") for each outstanding share of
Common Stock. Such Rights trade with the Common Stock and are not exercisable
or transferable apart from the Common Stock until a person or group acquires
15% or more of the outstanding Common Stock or commence or announce an
intention to commence a tender offer for 30% or more of the outstanding Common
Stock. The Rights, which expire on November 2, 2003, will cause substantial
dilution to a person or a group who attempts to acquire the Company on terms
not approved by the Board or who acquires 15% or more of the outstanding Common
Stock without approval of the Board. Furthermore, certain provisions of the
Florida Business Corporation Act may be deemed to have the effect of delaying,
deferring or preventing a change in control of the Company.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of shares of Common Stock being offered by the Selling Shareholders hereunder. Expenses expected to be incurred by the Company in connection with this offering are estimated at approximately $44,000.
SELLING SHAREHOLDERS
The following table sets forth information regarding the ownership of the Company's Common Stock by the Selling Shareholders as of the date of this Prospectus and as adjusted to reflect the sale of all of the Shares offered hereby. All of the Shares were issued by the Company in connection with the acquisition of Northwings. No Selling Shareholder has had any position, office or other material relationship with the Company (other than in connection with the Northwings acquisition) within the past three years.
(1) The Selling Shareholder is a former shareholder of Northwings. The Selling Shareholder is participating in this offering pursuant to contractual registration rights granted by the Company to Messrs. Portela and Neuman in connection with the acquisition of Northwings. The Selling Shareholders have indicated to the Company that they presently intend to retain ownership of a substantial portion of the Shares. The Company has agreed to pay all fees and expenses incident to the registration of this offering, including all registration and filing fees, all fees and expenses of complying with state blue sky or securities laws, all costs of preparation of the Registration Statement of which this Prospectus is a part and fees and disbursements of counsel for the Company and its independent public accountants.
(2) Mr. Portela's address is 6990 N.W. 35th Avenue, Miami, Florida 33147.
(3) Mr. Neuman's address is 4531 S.W. 142nd Place, Miami, Florida 33175.
(4) Mr. Aleman's address is 8290 S.W. 99th Street, Miami, Florida 33156.
PLAN OF DISTRIBUTION
The Selling Shareholders may sell the Shares offered hereby in one or more transactions (which may include "block" transactions) on the American Stock Exchange, in the over-the-counter market, in negotiated transactions or a combination of such methods of sale, at fixed prices which may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. The Selling Shareholders may effect such transactions by selling the Shares directly to purchasers, or may sell the Shares to or through agents, dealers or underwriters designated from time to time, and such agents, dealers or underwriters may receive compensation in the form of underwriting discounts, concessions or commissions from the Selling Shareholders and/or the purchasers of Shares for whom they may act as agent or to whom they sell as principals, or both. The Selling Shareholders and any agents, dealers or underwriters that act in connection with the sale of Shares might be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act of 1933, as amended (the "Securities Act"), and any discount or commission received by them and any profit on the resale of Shares as principal might be deemed to be underwriting discounts or commissions under the Securities Act.
To the extent required, the number of Shares to be sold, the purchase price and public offering price, the name or names of any agent, dealer or underwriter, and any applicable commissions or discounts with respect to a particular offering will be set forth in a supplement to this Prospectus to be filed with the Commission pursuant to Rule 424 under the Securities Act.
Under the securities laws of certain states, the Shares may be sold in such states only through registered or licensed brokers or dealers. In addition, in certain states the Shares may not be sold unless the Shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is satisfied.
The Company will receive no portion of the proceeds from the sale of the Shares and will bear all expenses related to the registration of this offering of the Shares but will not pay for any underwriting
commissions, fees or discounts, if any. The Selling Shareholders will also be indemnified by the Company against certain civil liabilities, including certain liabilities which may arise under the Securities Act.
LEGAL MATTERS
Certain legal matters with respect to the Common Stock offered hereby will be passed upon for the Company by Greenberg Traurig Hoffman Lipoff Rosen & Quentel, P.A., Miami, Florida.
EXPERTS
The financial statements included and incorporated in this Prospectus by reference from the Company's Annual Report on Form 10-K, as amended by Form 10-K/A, for the year ended October 31, 1997 have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report, which is included and incorporated herein by reference, and have been so included and incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
ADDITIONAL INFORMATION
The Company has filed with the Commission a Registration Statement on Form S-3 under the Securities Act with respect to the Common Stock offered hereby. This Prospectus does not contain all the information set forth in the Registration Statement and the exhibits. For further information with respect to the Company and the Common Stock, reference is hereby made to such Registration Statement and the exhibits. Statements contained in this Prospectus as to the contents of any contract or other document are not necessarily complete and, in each such instance, reference is made to the copy of such contract or document filed as an exhibit to the Registration Statement, each such statement being qualified in all respects by such reference. Copies of the Registration Statement, including all exhibits thereto, may be obtained from the Commission's principal office in Washington D.C., upon payment of the fees prescribed by the Commission, or may be examined without charge at the offices of the Commission.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the offering are as follows:
Securities and Exchange Commission Registration Fee .................................... $ 2,733
Legal Fees and Expenses ................................................................ $15,000
Accounting Fees and Expenses ........................................................... $10,000
AMEX Filing Fee ........................................................................ $ 3,500
Blue Sky Qualification Fees and Expenses ............................................... $ 500
Printing and Engraving Expenses ........................................................ $10,000
Fees and Expenses (including Legal Fees) for qualifications under State Securities Laws. $ 500
Registrar and Transfer Agents Fees and Expenses ........................................ $ 500
Miscellaneous .......................................................................... $ 1,267
-------
Total ................................................................................ $44,000
=======
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All amounts except the Securities and Exchange Commission registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has authority under Section 607.0850 of the Florida Business Corporation Act to indemnify its directors and officers to the extent provided in such statute. The Registrant's Articles of Incorporation provide that the Registrant may indemnify its executive officers and directors to the fullest extent permitted by law whether now or hereafter. The Registrant has entered or will enter into an agreement with each of its directors and certain of its officers wherein it has agreed to indemnify each of them to the fullest extent permitted by law.
The provisions of the Florida Business Corporation Act that authorize indemnification do not eliminate the duty of care of a director, and in appropriate circumstances equitable remedies such as injunctive or other forms of nonmonetary relief will remain available under Florida law. In addition, each director will continue to be subject to liability for (a) violations of the criminal law, unless the director had reasonable cause to believe his conduct was lawful or had no reasonable cause to believe his conduct was unlawful; (b) deriving an improper personal benefit from a transaction; (c) voting for or assenting to an unlawful distribution; and (d) willful misconduct or a conscious disregard for the best interests of the Registrant in a proceeding by or in the right of the Registrant to procure a judgment in its favor or in a proceeding by or in the right of a shareholder. The statute does not affect a director's responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
2.1 Amended and Restated Agreement of Merger and Plan of Reorganization, dated as of
March 22, 1993, by and among HEICO Corporation, HEICO Industries, Corp. and New
HEICO, Inc. is incorporated by reference to Exhibit 2.1 to the Company's Registration
Statement on Form S-4 (Registration No. 33-57624) Amendment No. 1 filed on March 19,
1993.*
2.2 Stock Purchase Agreement, dated June 20, 1996, by and among HEICO Corporation,
MediTek Health Corporation and U.S. Diagnostic Inc. is incorporated by reference to
Exhibit 2 to the Form 8-K dated July 11, 1996.*
|
II-1
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
2.3 Stock Purchase Agreement, dated as of September 16, 1996, by and between HEICO
Corporation and Sigmund Borax is incorporated by reference to Exhibit 2 to the Form 8-K
dated September 16, 1996.*
2.4 Stock Purchase Agreement dated July 25, 1997, among HEICO Corporation, N.A.C.
Acquisition Corporation, Northwings Accessories Corporation, Ramon Portela and Otto
Newman (without schedules) is incorporated by reference to Exhibit 2 to Form 8-K dated
September 16, 1997.*
3.1 Articles of Incorporation of the Registrant are incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-4 (Registration No. 33-57624) Amendment
No. 1 filed on March 19, 1993.*
3.2 Articles of Amendment of the Articles of Incorporation of the Registrant, dated April 27,
1993, are incorporated by reference to Exhibit 3.2 to the Company's Registration Statement
on Form 8-B dated April 29, 1993.*
3.3 Articles of Amendment of the Articles of Incorporation of the Registrant, dated November 3,
1993, are incorporated by reference to Exhibit 3.3 to the Form 10-K for the year ended
October 31, 1993.*
3.4 Articles of Amendment of the Articles of Incorporation of the Registrant, dated March 19,
1998.**
3.5 Bylaws of the Registrant are incorporated by reference to Exhibit 3.4 to the Form 10-K for
the year ended October 31, 1996.*
4.0 The description and terms of Preferred Stock Purchase Rights are set forth in a Rights
Agreement between the Company and SunBank, N.A., as Rights Agent, dated as of
November 2, 1993, incorporated by reference to Exhibit 1 to the Form 8-K dated
November 2, 1993.*
5.1 Opinion of Greenberg Traurig Hoffman Rosen Lipoff & Quentel, P.A. as to the validity of
the Common Stock being registered.**
10.1 Loan Agreement, dated March 1, 1988, between HEICO Corporation and Broward County,
Florida is incorporated by reference to Exhibit 10.1 to the Form 10-K for the year ended
October 31, 1994.*
10.2 SunBank Reimbursement Agreement, dated February 28, 1994, between HEICO Aerospace
Corporation and SunBank/South Florida, N.A. is incorporated by reference to Exhibit 10.2 to
the Form 10-K for the year ended October 31, 1994.*
10.3 Amendment, dated March 1, 1995, to the SunBank Reimbursement Agreement dated
February 28, 1994 between HEICO Aerospace Corporation and SunBank/South Florida,
N.A. is incorporated by reference to Exhibit 10.3 to the Form 10-K from the year ended
October 31, 1995.*
10.4 Loan Agreement, dated February 28, 1994, between HEICO Corporation and SunBank/
South Florida, N.A. is incorporated by reference to Exhibit 10.3 to the Form 10-K for the
year ended October 31, 1994.*
10.5 The First Amendment, dated October 13, 1994, to Loan Agreement dated February 28, 1994
between HEICO Corporation and SunBank/South Florida, N.A. is incorporated by reference
to Exhibit 10.4 to the Form 10-K for the year ended October 31, 1994.*
10.6 Second Amendment, dated March 1, 1995, to the Loan Agreement dated February 28, 1994
between HEICO Corporation and SunBank/South Florida, N.A. is incorporated by reference
to Exhibit 10.6 to the Form 10-K for the year ended October 31, 1995.*
10.7 Third Amendment, dated September 16, 1997, to Loan Agreement dated February 28, 1994
between HEICO Corporation and SunTrust Bank, South Florida, National Association is
incorporated by reference to Exhibit 10.7 to the Form 10-K/A for the year ended October 31,
1997.*
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II-2
EXHIBIT
NUMBER DESCRIPTION
---------- -----------
10.8 Fourth Amendment, dated December 1, 1997, to Loan Agreement dated February 28, 1994
between HEICO Corporation and SunTrust Bank, South Florida, National Association is
incorporated by reference to Exhibit 10.8 to Form 10-K/A for the year ended October 31,
1997.*
10.9 Loan Agreement, dated March 31, 1994, between HEICO Corporation and Eagle National
Bank of Miami is incorporated by reference to Exhibit 10.5 to the Form 10-K for the year
ended October 31, 1994.*
10.10 The First Amendment, dated May 31, 1994, to Loan Agreement dated March 31, 1994
between HEICO Corporation and Eagle National Bank of Miami is incorporated by
reference to Exhibit 10.6 to the Form 10-K for the year ended October 31, 1994.*
10.11 The Second Amendment, dated August 9, 1995, to the Loan Agreement dated March 31,
1994 between HEICO Corporation and Eagle National Bank of Miami is incorporated by
reference to Exhibit 10.9 to the Form 10-K for the year ended October 31, 1995.*
10.12 Second Loan Modification Agreement, dated February 27, 1997, between HEICO
Corporation and Eagle National Bank of Miami is incorporated by reference to Exhibit 10.3
to the Form 10-Q for the three months ended April 30, 1997.*
10.13 Third Loan Modification Agreement, dated February 6, 1998, between HEICO Corporation
and Eagle National Bank of Miami is incorporated by reference to Exhibit 10.1 to the
Form 10-Q for the three months ended January 31, 1998.
10.14 Loan Agreement, dated October 1, 1996, between HEICO Aerospace Corporation and
Broward County, Florida is incorporated by reference to Exhibit 10.10 to the Form 10-K for
the year ended October 31, 1996.*
10.15 SunTrust Bank Reimbursement Agreement, dated October 1, 1996, between HEICO
Aerospace Corporation and SunTrust Bank, South Florida, N.A. is incorporated by reference
to Exhibit 10.11 to the Form 10-K for the year ended October 31, 1996.*
10.16 HEICO Savings and Investment Plan and Trust, as amended and restated effective January 2,
1987 is incorporated by reference to Exhibit 10.2 to the Form 10-K for the year ended
October 31, 1987.*
10.17 HEICO Savings and Investment Plan, as amended and restated December 19, 1994, is
incorporated by reference to Exhibit 10.11 to the Form 10-K for the year ended October 31,
1994.*
10.18 HEICO Corporation 1993 Stock Option Plan, as amended.**
10.19 HEICO Corporation Combined Stock Option Plan, dated March 15, 1988, is incorporated by
reference to Exhibit 10.3 to the Form 10-K for the year ended October 31, 1989.*
10.20 Non-Qualified Stock Option Agreement for Directors, Officers and Employees is
incorporated by reference to Exhibit 10.8 to the Form 10-K for the year ended October 31,
1985.*
10.21 HEICO Corporation Directors' Retirement Plan, as amended, dated as of May 31, 1991, is
incorporated by reference to Exhibit 10.19 to the Form 10-K for the year ended October 31,
1992.*
10.22 Key Employee Termination Agreement, dated as of April 5, 1988, between HEICO
Corporation and Thomas S. Irwin is incorporated by reference to Exhibit 10.20 to the Form
10-K for the year ended October 31, 1992.*
10.23 Employment and Non-compete Agreement, dated as of September 16, 1996, by and between
HEICO Corporation and Sigmund Borax is incorporated by reference to Exhibit 10.1 to the
Form 8-K dated September 16, 1996.*
10.24 Employment and Non-compete Agreement, dated as of September 16, 1996, by and between
HEICO Corporation and Charles Kott is incorporated by reference to Exhibit 10.2 to the
Form 8-K dated September 16, 1996.*
10.25 Loan Agreement, dated as of March 1, 1997, between Trilectron Industries, Inc. and Manatee
County, Florida is incorporated by reference to Exhibit 10.1 to the Form 10-Q for the three
months ended April 30, 1997.*
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II-3
EXHIBIT
NUMBER DESCRIPTION
----------- -----------
10.26 Letter of Credit and Reimbursement Agreement, dated as of March 1, 1997, between
Trilectron Industries, Inc., and First Union National Bank of Florida (excluding referenced
exhibits) is incorporated by reference to Exhibit 10.2 to the Form 10-Q for the three months
ended April 30, 1997.*
10.27 Registration Rights Agreement, dated September 15, 1997, by and between HEICO
Corporation and Ramon Portela is incorporated by reference to Exhibit 10.1 to Form 8-K
dated September 16, 1997.*
10.28 Employment and Non-compete Agreement dated September 16, 1997, by and between
Northwings Accessories Corporation and Ramon Portela is incorporated by reference to
Exhibit 10.2 to Form 8-K dated September 16, 1997.*
10.29 Amendment to Registration and Sale Rights Agreement, dated as of December 24, 1996, by
and among U.S. Diagnostic Inc. and Heico Corporation is incorporated by reference to
Exhibit 10.22 to Form 10-K for the year ended October 31, 1996.*
10.30 Assignment of Promissory Note by and between HEICO Corporation and Forum Capital
Markets L.P. is incorporated by reference to Exhibit 10.3 to Form 8-K dated September 16,
1997.*
10.31 Amendment to 6 1/2% Convertible Note, dated as of December 24, 1996, by and among U.S.
Diagnostic Inc. and HEICO Corporation is incorporated by reference to Exhibit 10.21 to
Form 10-K for the year ended October 31, 1996.*
10.32 Second Amendment to the 61/2% Convertible Note, dated September 10, 1997, by and among
U.S. Diagnostic Inc., and HEICO Corporation is incorporated by reference to Exhibit 10.4 to
Form 8-K dated September 16, 1997.*
10.33 Stock Purchase Agreement, dated October 30, 1997, by and among HEICO Corporation,
HEICO Aerospace Holdings Corp. and Lufthansa Technik AG is incorporated by reference
to Exhibit 10.31 to Form 10-K/A for the year ended October 31, 1997.*
10.34 Shareholders Agreement, dated October 30, 1997, by and between HEICO Aerospace
Holdings Corp., HEICO Aerospace Corporation and all of the shareholders of HEICO
Aerospace Holdings Corp. and Lufthansa Technik AG is incorporated by reference to
Exhibit 10.32 to Form 10-K/A for the year ended October 31, 1997.*
23.1 Consent of Greenberg Traurig Hoffman Rosen Lipoff & Quentel, P.A. (to be included in its
opinion to be filed as Exhibit 5.1).**
23.2 Consent of Deloitte & Touche LLP.**
24.1 Reference is made to the Signatures section of this Registration Statement for the Power
contained therein.**
27 Financial Data Schedule**
|
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes: (a) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; (b) that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the
II-4
time shall be deemed to be the initial BONA FIDE offering thereof, and (c) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Miami, State of Florida, on March 23, 1998.
HEICO CORPORATION.
By: /s/ Laurans A. Mendelson
------------------------------------
LAURANS A. MENDELSON,
Chairman of the Board,
President and Chief Executive
Officer
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Laurans A. Mendelson his true and lawful attorney-in-fact, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments, including any post-effective amendments, to this Registration Statement, and to file the same, with exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact or his substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
---------------------------------- ---------------------------------- ---------------
/s/ Laurans A. Mendelson Chairman of the Board, President March 23, 1998
LAURANS A. MENDELSON and Chief Executive Officer
(principal executive officer)
/s/ Eric A. Mendelson Vice President, President of March 23, 1998
ERIC A. MENDELSON HEICO Aerospace Corporation
and Director
/s/ Victor H. Mendelson Vice President, General Counsel March 23, 1998
VICTOR H. MENDELSON and Director, President of
HEICO Aviation Products Corp.
/s/ Thomas S. Irwin Executive Vice President and March 23, 1998
THOMAS S. IRWIN Chief Financial Officer
(principal financial officer)
/s/ Jacob T. Carwile Director March 23, 1998
JACOB T. CARWILE
/s/ Samuel L. Higginbottom Director March 23, 1998
SAMUEL L. HIGGINBOTTOM
/s/ Paul F. Manieri Director March 23, 1998
PAUL F. MANIERI
/s/ Albert Morrison, Jr. Director March 23, 1998
ALBERT MORRISON, JR.
/s/ Dr. Alan Schriesheim Director March 23, 1998
DR. ALAN SCHRIESHEIM
/s/ Guy C. Shafer Director March 23, 1998
GUY C. SHAFER
|
II-6
INDEX TO EXHIBITS
SEQUENTIALLY
NUMBERED
EXHIBIT DESCRIPTION PAGE
--------- ----------- -------------
3.4 Articles of Amendment of the Articles of Incorporation of the Registrant, dated
March 19, 1998.
5.1 Opinion of Greenberg Traurig Hoffman Rosen Lipoff & Quentel, P.A. as to the
validity of the Common Stock being registered.
10.18 HEICO Corporation 1993 Stock Option Plan, as amended.
23.2 Consent of Deloitte & Touche LLP.
27 Financial Data Schedule
|
EXHIBIT 3.4
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
HEICO CORPORATION
Pursuant to the provisions of Section 607.1006, Florida Statutes, HEICO Corporation (the "Corporation") adopts the following Articles of Amendment to the Articles of Incorporation (the "Amendment"):
FIRST: Amendment adopted: Article III is hereby amended in its entirety as
attached hereto as EXHIBIT A.
SECOND: The date of the Amendment's adoption is March 17, 1998.
THIRD: Adoption of the amendment. This Amendment was approved by the Board of
Directors and the Shareholders of the Corporation. The number of votes
cast for the amendment was sufficient for approval.
IN WITNESS WHEREOF, HEICO Corporation has caused this Amendment to be
|
executed by the Vice President on this 17th day of March, 1998.
HEICO CORPORATION
By: /s/ Victor Mendelson
-------------------------------
Victor Mendelson, Vice President
|
ARTICLE III: CAPITAL STOCK
(a) The corporation is authorized to issue seventy million
(70,000,0000) shares of capital stock, $0.01 par value per share, of which
thirty million (30,000,000) are designated Common Stock; thirty million
(30,000,000) are designated Class A Common Stock; and ten million (10,000,000)
are designated Preferred Stock.
The Board of Directors may change the name and reference to the Common Stock and the Class A Common Stock without altering and changing any of the rights, priviledges and preferences of the holders of the Common Stock and the Class A Common Stock, including but not limited to renaming the Class A Common Stock Class B Common Stock and renaming the Common Stock Class A Common Stock.
(b) The Common Stock and the Class A Common Stock shall be subject to the express terms of the Preferred Stock and any class or series thereof. The powers, preferences and rights of the Common Stock and the Class A Common Stock and the qualifications, limitations and restrictions thereof, shall in all respects be identical, except as otherwise required by law or as expressly provided in this Section (b).
(1) Except as otherwise required by law or as may be provided by the resolutions of the Board authorizing the issuance of any class or series of the Preferred Stock, as herein provided, all rights to vote and all voting power shall be vested exclusively in the holders of the Common Stock and Class A Common Stock. The holders of shares of Common Stock and Class A Common Stock shall have the following voting rights:
(A) the holders of Common Stock shall be entitled to one (1) vote for each share of Common Stock held on all matters voted upon by the shareholders of the Company and shall vote together with the holders of Class A Common Stock and together with the holders of any other classes or series of stock who are entitled to vote in such manner and not as a separate class; and
(B) the holders of Class A Common Stock shall be entitled to one-tenth (1/10th) vote for each share of Class A Common Stock held on all matters voted upon by the shareholders of the Company and shall vote together with the holders of Common Stock and together with the holders of any other classes or series of stock who are entitled to vote in such manner and not as a separate class.
(2) Subject to the rights of the holders of the Preferred Stock, the holders of the Common Stock and the Class A Common Stock shall be entitled to receive when, as and if declared by the Board, out of funds legally available therefor, dividends and other distributions payable in cash, property, stock (including shares of any class or series of the Company, whether or not shares of such class or series are already outstanding) or otherwise. Each share Common Stock and each share of Class A Common Stock shall have identical rights with respect to dividends and distributions, subject to the following:
(A) a dividend or distribution in common stock on
Common Stock may be paid or made in shares of Common Stock or shares of Class A
Common Stock or a combination of both;
(B) a dividend or distribution in common stock on Class A Common Stock may be paid in shares of Class A Common Stock or shares of Common Stock or a combination of both;
(C) whenever a dividend or distribution is payable in shares of Common Stock and/or Class A Common Stock, the number of shares of Common Stock payable as a dividend or distribution per each share of Common Stock or Class A Common Stock shall be equal in number;
(D) a dividend or distribution on Common Stock which is paid or made in shares of Common Stock shall be considered identical to a dividend or distribution on Class A Common Stock which is paid or made in a proportionate number of shares of Class A Common Stock; and
(E) If any shares of Class A Common Stock require registration with or approval of any governmental authority under any federal or state law before such shares may be issued upon conversion, the Company shall cause such shares to be duly registered or approved, as the case may be. The Company shall endeavor to use its best efforts to list the shares of Class A Common Stock to be delivered upon conversion prior to such delivery upon each national securities exchange upon which the outstanding shares of Class A Common Stock are listed at the time of such delivery.
(3) If the Company shall in any manner split, subdivide or combine the outstanding shares of Common Stock or Class A Common Stock, then the outstanding shares of the Common Stock and the Class A Common Stock shall be proportionately split, subdivided or combined in the same manner and on the same basis as the outstanding shares of the class that has been split, subdivided or combined.
(4) In the event of a merger, consolidation or combination of the Company with another entity (whether or not the Company is the surviving entity), the holders of Common Stock and Class A Common Stock shall be entitled to receive the same per share consideration in that transaction, except that any common stock that holders of Class A Common Stock are entitled to receive in any such event may differ as to voting rights and otherwise to the extent and only the extent that the Common Stock and the Class A Common Stock differ as set forth in this Section (b).
(5) Upon any liquidation, dissolution or winding-up of the Company, whether voluntary or involuntary, and after the holders of the Preferred Stock shall have been paid in full the amounts to which they shall be entitled, if any, or a sum sufficient for such payment in full shall have been set aside, the remaining net assets of the Company, if any, shall be divided among and paid ratably to the holders of Common Stock and Class A Common Stock treated as a single class.
(6) The Board shall have the power to cause the Company to issue and sell shares of either class of Common Stock to such individuals, partnerships, joint ventures, limited liability companies, associations, corporations, trusts or other legal entities (collectively, "persons") and for such consideration as the Board shall from time to time in its discretion determine, whether or not greater consideration could be received upon the issue or sale of the same number of shares of the Common Stock or the Class A Common Stock, and as otherwise permitted by law. The Board shall have the power to cause the Company to purchase, out of funds legally available therefor, shares of either the Common Stock or the Class A Common Stock from such persons and for such consideration as the Board shall from time to time in its discretion determine, whether or not less consideration could be paid upon the purchase of the same number of shares of the Common Stock or the Class A Common Stock, and as otherwise permitted by law.
(c) The holders of record of any outstanding shares of Preferred Stock shall be entitled to dividends when and as declared by the Board of Directors of the corporation at such rate per share, if any, and at such time and in such manner, as shall be determined by the Board of Directors of the corporation in the resolution authorizing the series of Preferred Stock of which such shares of Preferred Stock are a part.
(d) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the corporation, the holders of record of the outstanding shares of Preferred Stock shall be entitled to such amount, if any, for each share of Preferred Stock, as the Board of Directors of the corporation shall determine in the resolution authorizing the series of Preferred Stock of which such shares of Preferred Stock are a part, whether or not the corporation shall have any surplus or earnings available for dividends, and no more. If the assets of the corporation shall not be sufficient to pay to all holders of Preferred Stock the amounts to which they would be entitled in the event of a voluntary or involuntary liquidation, dissolution or winding up of the corporation, the
holders of record of each series of the Preferred Stock which is entitled to share in the assets of the corporation in any such event shall be entitled to share in the assets of the corporation to the extent, if any, and in the manner, determined by the Board of Directors of the corporation in the resolution authorizing the series of Preferred Stock of which such shares are a part and in such cases holders of record of shares of Preferred Stock of the same series shall be entitled to share ratably in accordance with the number of shares of Preferred Stock of the series held of record by them to the extent, if any, that the series is entitled to share in the assets of the corporation in such event.
(e) Preferred Stock may be issued from time to time in one or more series. All Preferred Stock shall be of equal rank and identical, except in respect to the particulars that may be fixed by the Board of Directors. The Board of Directors is authorized to establish series of Preferred Stock and to fix, in the manner and to the full extent provided and permitted by law, the following rights, preferences and limitations of each series of the Preferred Stock and the relative rights, preferences and limitations between or among such series:
(1) the distinctive designation of each series and the number of shares that shall constitute the series;
(2) the rate of dividends, if any, the preferences and conditions under which, dividends shall be payable on the shares of each series and the time and manner of payment, the status of such dividends as cumulative or noncumulative, the date or dates from which dividends, if cumulative, shall accumulate, and the status of such shares as participating or nonparticipating after the payment of dividends as to which such shares are entitled to any preference;
(3) whether shares of each series may be redeemed and, if so, the redemption price and the terms and conditions of redemption;
(4) sinking fund provisions, if any, for the redemption or purchase of shares of each series which is redeemable;
(5) the amount, if any, payable upon shares of each series in the event of the voluntary or involuntary liquidation, dissolution or winding up of the corporation, and the manner and preference of such payment;
(6) voting rights, if any, on the shares of each series and any conditions upon the exercisability of such rights;
(7) the rights, if any, of the holders of shares of each series to convert those shares into Common Stock or shares of any other series of Preferred Stock and the terms and conditions of conversion;
(8) the limitations, if any, applicable while each series is outstanding, on the payment of dividends or making of distributions on, or the acquisition or redemption of, Common Stock or any other class of shares ranking junior, either as to dividends or upon liquidation, to the shares of each series.
(9) the conditions or restrictions, if any, upon the issue of any additional shares (including additional shares of such series or any other series or of any other class) ranking on a parity with or prior to the shares of such series either as to dividends or upon liquidation; and
(10) any other relative powers, preferences and participations, optional or other special rights, and the qualifications, limitations or restrictions thereof, of shares of such series.
When such series of Preferred Stock is established by the Board of Directors, articles of amendment setting forth the amendment, certifying that the amendment has been duly adopted by the Board of Directors in accordance with the applicable provisions of the Florida Business Corporation Act, and containing such other statements as may be necessary or advisable, shall be assigned by its president or vice president and by its secretary or an assistant secretary, and filed with the Department of State of the State of Florida.
(f) Series A Junior Participating Preferred Stock.
(1) Dividends and Distributions. The shares of such series shall be designated as "Series A Junior Participating Preferred Stock" (the "Series A Preferred Stock") and the number of shares constituting such series shall be 50,000.
(2) Dividends and Distributions.
(A) Subject to the provisions for adjustment
hereinafter set forth, the holders of shares of Series A Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors out
of funds legally available for the purpose, (i) cash dividends in an amount per
share (rounded to the nearest cent) equal to 100 times the aggregate per share
amount of all cash dividends declared or paid on the Common Stock of the
corporation and (ii) a preferential cash dividend (the "Series A Preferential
Cash Dividends"), if any, on the first day of February, May, August and November
of each year (each a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a shares of Series A Preferred Stock, in an amount equal to $.75 per share of
Series A Preferred Stock less the per share amount of all cash dividends
declared on the Series A Preferred Stock pursuant to clause (i) of this sentence
since the immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
corporation shall, at any time after the issuance of any share or fraction of a
series of Series A Preferred Stock, make any distribution on the shares of
Common Stock of the corporation, whether by way of a dividend or a
reclassification of stock, a recapitalization, reorganization or partial
liquidation of the corporation or otherwise, which is payable in cash or any
debt security, debt instrument, real or personal property or any other property
(other than cash dividends subject to the immediately preceding sentence, a
distribution of shares of Common Stock or other capital stock of the corporation
or a distribution of rights or warrants to acquire any such share, including any
debt security convertible into or exchangeable for any such share, at a price
less than the Fair Market Value (as defined in Section (e)(7)(D) of this Article
III) of such share), then and in each such event the corporation shall
simultaneously pay on each then outstanding shares of Series A Preferred Stock
of the Corporation a distribution, in like kind, of 100 times such distribution
paid on a share of Common Stock (subject to the provisions for adjustment
hereinafter set forth). The dividends and distributions on the Series A
Preferred Stock to which holders thereof are entitled pursuant to clause (i) of
the first sentence of this paragraph and pursuant to the second sentence of this
paragraph are hereinafter referred to as "Participating Dividends" and the
multiple of such cash and non-cash dividends on the Common Stock applicable to
the determination of the Participating Dividends, which shall be 100 initially
but shall be adjusted from time to time as hereinafter provided, is hereinafter
referred to as the "Dividend Multiple." In the event the Corporation shall at
any time after November 2, 1993 declare or pay any dividend or make any
distribution on a combination, consolidation or reverse split of the outstanding
shares of Common Stock into a greater or lesser number of shares of Common
Stock, then in each such case the Dividend Multiple thereafter applicable to the
determination of the amount of Participating Dividends which holders of shares
of Series A Preferred Stock shall be entitled to receive shall be the Dividend
Multiple applicable immediately prior to such event multiplied by a fraction,
the numerator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare each Participating Dividend at the same time it declares any cash or non-cash dividend or distribution on the Common Stock in respect of which a Participating Dividend is required to be paid. No cash or non-cash dividend or distribution on the Common Stock in respect of which a Participating Dividend is required to be paid shall be paid or set aside for payment on the Common Stock unless a Participating Dividend in respect of such dividend or distribution on the Common Stock shall be simultaneously paid, or set aside for payment, on the Series A Preferred Stock.
(C) Series A Preferential Cash Dividends shall begin to accrue on outstanding shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issuance of any shares of Series A Preferred Stock. Accrued but unpaid Series A Preferential Cash Dividends shall be cumulative but shall not bear interest. Series A Preferential Cash Dividends paid on the share of Series A
Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding.
(3) Voting Rights. The holders of shares of Series A Preferred Stock shall have the following voting rights:
(A) Subject to the provisions for adjustment hereinafter set forth, each share of Series A Preferred Stock shall entitle the holder thereof to 100 votes on all matters submitted to a vote of the shareholders of the Corporation. The number of votes which a holder of a share of Series A Preferred Stock is entitled to cast, as the same may be adjusted from time to time as hereinafter provided, is hereinafter referred to as the "Vote Multiple." In the event the Corporation shall at any time after November 2, 1993 declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision or split or a combination, consolidation or reverse split of the outstanding shares of Common Stock into a greater or lesser number of shares of Common Stock, then in each such case the Vote Multiple thereafter applicable to the determination of the number of votes per share to which holders of shares of Series A Preferred Stock shall be entitled after such event shall be the Vote Multiple immediately prior to such event multiplied by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided in these Articles of Incorporation or the Bylaws of the Corporation, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock shall vote together as a single voting group on all matters submitted to a vote of shareholders of the Corporation.
(C) Unless otherwise provided in these Articles of Incorporation, in the event that any preferential cash dividend to which the holders of any currently existing or future series of the Preferred Stock are entitled (collectively, the "Preferred Cash Dividends") has accrued for four or more quarterly dividend periods, whether consecutive or not, and shall not have been declared and paid (or a sum sufficient for the payment thereof has been set aside) in full, the holders of record of such series of Preferred Stock, other than any series in respect of which such right is expressly withheld by these Articles of Incorporation (such holders existing from time to time being hereinafter referred to as the "Unpaid Series Holders"), acting as a single voting group, shall have the right, at the next meeting of shareholders called for the election of Directors, to elect two members to the Board of Directors, which Directors (hereinafter, the "Preferred Directors") shall be in addition to the number of Directors required by the Bylaws of the Corporation prior to such event, to serve until the next annual meeting of shareholders and until their successors are elected and qualified or their earlier resignation, removal or incapacity or until such earlier time as all accrued and unpaid Preferred Cash Dividends shall have been paid (or a sum sufficient for the payment thereof has been set aside) in full. If at any annual meeting of shareholders at which the term of a Preferred Director is fixed to expire there are accrued Preferred Cash Dividends which have not been paid (or a sum sufficient for payment thereof has not been set aside) in full, the Unpaid Series Holders shall have the right to elect a Preferred Director to the vacant Directorship resulting from the expiration of the term of such Preferred Director in the manner provided in the immediately preceding sentence until all accrued and unpaid Preferred Cash Dividends shall have been paid (or a sum sufficient for payment thereof has been set aside) in full; PROVIDED, HOWEVER, that at no time shall more than two Preferred Directors be members of the Board of Directors. The Preferred Directors may be removed, with or without cause, by the Unpaid Series Holders. Vacancies in such Directorships (whether caused by death, resignation, removal or otherwise) may be filled (if any accrued Preferred Cash Dividends remain unpaid or a sum sufficient for payment thereof has not been set aside) only by the Unpaid Series Holders (or by the remaining Director elected by the Unpaid Series Holders, if there be one) in the manner permitted by law; PROVIDED, HOWEVER, that any such action by the Unpaid Series Holders shall be taken at a meeting of shareholders and shall not be taken by written consent; PROVIDED FURTHER, HOWEVER, that by a vote of a majority of the Board of Directors in office other than the Preferred Directors, the Preferred Directors may be removed immediately after all accrued and unpaid Preferred Cash Dividends shall have been paid (or a sum sufficient for the payment thereof has been set aside) in full.
(D) Except as otherwise provided in these Articles of Incorporation or the Bylaws of the Corporation, holders of Series A Preferred Stock shall have no special voting rights and their consent shall
not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for the taking of any corporate action.
(4) Certain Restrictions.
(A) Whenever Series A Preferential Cash Dividends or Participating Dividends are in arrears or the Corporation shall be in default of payment thereof, thereafter and until all accrued and unpaid Series A Preferential Cash Dividends and Participating Dividends, whether or not declared, on shares of Series A Preferred Stock outstanding shall have been paid (or a sum sufficient for payment thereof has been set aside) in full, and in addition to any and all other rights which any holder of shares of Series A Preferred Stock may have in such circumstances, the Corporation shall not
(i) declare or pay dividends on, make any other distributions on, or redeem or purchase or otherwise acquire for consideration, any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on any shares of stock ranking on a parity as to dividends with the Series A Preferred Stock, unless dividends are paid ratably on the Series A Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled if the full dividends accrued thereon were to be paid;
(iii) except as permitted by subparagraph
(iv) of this paragraph (4)(a), redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Preferred Stock,
PROVIDED that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for shares of any stock of
the Corporation ranking junior (both as to dividends and upon liquidation,
dissolution or winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of Series A Preferred Stock, or any shares of stock ranking on a parity with the Series A Preferred Stock (either as to dividends or upon liquidation, dissolution or winding up), except in accordance with a purchase offer made to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any Subsidiary (as hereinafter defined) of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under paragraph (a) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner. A "Subsidiary" of the Corporation shall mean any corporation or other entity of which securities or other ownership interests having ordinary voting power sufficient to elect a majority of the Board of Directors or other persons performing similar functions are beneficially owned, directly or indirectly, by the Corporation or by any corporation or other entity that is otherwise controlled by the Corporation.
(C) The Corporation shall not issue any shares of Series A Preferred Stock except upon exercise of Rights (the "Rights") issued pursuant to that certain Rights Agreement dated as of November 2, 1993 between the Corporation and SunBank, National Association, as rights agent, a copy of which is on file with the Secretary of the Corporation at its principal executive office and shall be made available to shareholders of record without charge upon written request therefor addressed to said Secretary. Notwithstanding the foregoing sentence, nothing contained in the provisions hereof shall prohibit or restrict the Corporation from issuing for any purpose any series of Preferred Stock with rights and privileges similar to, different from or greater than those of the Series A Preferred Stock.
(5) Reacquired Shares. Any shares of Series A Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and canceled promptly after the acquisition thereof. All such shares upon their retirement and cancellation shall become authorized but unissued shares of Preferred Stock, without designation as to series, and such shares may be reissued as part of a new series of Preferred Stock to be created by resolution or resolutions of the Board of Directors.
(6) Liquidation, Dissolution or Winding Up. Upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, no distribution shall be made (A) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock unless the holders of shares of Series A Preferred Stock shall have received, subject to adjustment as hereinafter provided, (i) $45 per one-hundredth share plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, or (ii) if greater than the amount specified in clause (A)(i) of this sentence, an amount equal to 100 times the aggregate amount to be distributed per share to holders of Common Stock, as the same may be adjusted as hereinafter provided, and (B) to the holders of stock ranking on a parity upon liquidation, dissolution or winding up with the Series A Preferred Stock, unless simultaneously therewith distributions are made ratably on the Series A Preferred Stock and all other shares of such parity stock in proportion to the total amounts to which the holders of shares of Series A Preferred Stock are entitled under clause (A)(i) of this sentence and to which the holders of such parity shares are entitled, in each case upon such liquidation, dissolution or winding up. The amount to which holders of Series A Preferred Stock may be entitled upon liquidation, dissolution or winding up of the Corporation pursuant to clause (A) of the foregoing sentence is hereinafter referred to as the "Participating Liquidation Amount" and the multiple of the amount to be distributed to holders of shares of Common Stock upon the liquidation, dissolution or winding up of the Corporation applicable pursuant to said clause to the determination of the Participating Liquidation Amount, as said multiple may be adjusted from time to time as hereinafter provided, is hereinafter referred to a the "Liquidation Multiple." In the event the Corporation shall at any time after November 2, 1993 declare or pay any dividend on Common Stock payable in shares of Common Stock, or effect a subdivision of split or a combination, consolidation or reverse split of the outstanding shares of Common Stock into a greater or lesser number of shares of Common Stock, then in each such case the Liquidation Multiple thereafter applicable to the determination of the Participating Liquidation Amount to which holders of Series A Preferred Stock shall be entitled after such event shall be the Liquidation Multiple applicable immediately prior to such event multiplied by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
(7) Certain Reclassifications and Other Events.
(A) In the event that holders of shares of Common Stock of the Corporation receive after November 2, 1993 in respect of their shares of Common Stock any share of capital stock of the Corporation (other than any share of Common Stock of the Corporation), whether by way of reclassification, recapitalization, reorganization, dividend or other distribution or otherwise (a "Transaction"), then and in each such event the dividend rights, voting rights and rights upon the liquidation, dissolution or winding up of the Corporation of the shares of Series A Preferred Stock shall be adjusted so that after such event the holders of Series A Preferred Stock shall be entitled, in respect of each share of Series A Preferred Stock held, in addition to such rights in respect thereof to which such holder was entitled immediately prior to such adjustment, to (i) such additional dividends as equal the Dividend Multiple in effect immediately prior to such Transaction multiplied by the additional dividends which the holder of a share of Common Stock shall be entitled to receive by virtue of the receipt in the Transaction of such capital stock, (ii) such additional voting rights as equal the Vote Multiple in effect immediately prior to such Transaction multiplied by the additional voting rights which the holder of a share of Common Stock shall be entitled to receive by virtue of the receipt in the Transaction of such capital stock and (iii) such additional distributions upon liquidation, dissolution or winding up of the Corporation as equal the Liquidation Multiple in effect immediately prior to such Transaction multiplied by the additional amount which the holder of a share of Common Stock shall be entitled to receive upon liquidation, dissolution or winding up of the Corporation by virtue of the receipt in the Transaction of such capital stock, as the case may be, all as provided by the terms of such capital stock.
(B) In the event that holders of shares of Common Stock of the Corporation receive after November 2, 1993 in respect of their shares of Common Stock any right or warrant to purchase Common Stock (including as such a right, for all purposes of this paragraph, any security convertible into or exchangeable for Common Stock) at a purchase price per share less than the Fair Market Value (as hereinafter defined) of a share of Common Stock on the date of issuance of such right or warrant, then and in each such event the dividend rights, voting rights and rights upon the liquidation, dissolution or winding up of the Corporation of the shares of Series A Preferred Stock shall each be adjusted so that after such event the Dividend Multiple, the Vote Multiple and the Liquidation Multiple shall each be the product of the Dividend Multiple, the Voting Multiple and the Liquidation Multiple, as the case may be, in effect immediately prior to such event multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding immediately before such issuance of rights or warrants plus the maximum number of shares of Common Stock which could be acquired upon exercise in full of all such rights or warrants and the denominator of which shall be the number of shares of Common Stock outstanding immediately before such issuance of rights or warrants plus the number of shares of Common Stock which could be purchased, at the Fair Market Value of the Common Stock at the time of such issuance, by the maximum aggregate consideration payable upon exercise in full of all such rights or warrants.
(C) In the event that holders of shares of Common
Stock of the Corporation receive after November 2, 1993 in respect of their
shares of Common Stock any right or warrant to purchase capital stock of the
Corporation (other than shares of Common Stock), including as such a right, for
all purposes of this paragraph, any security convertible into or exchangeable
for capital stock of the Corporation (other than Common Stock), at a purchase
price per share less than the Fair Market Value of such shares of capital stock
on the date of issuance of such right or warrant, then and in each such event
the dividend rights, voting rights and rights upon liquidation, dissolution or
winding up of the Corporation of the shares of Series A Preferred Stock shall
each be adjusted so that after such event each holder of a share of Series A
Preferred Stock shall be entitled, in respect of each share of Series A
Preferred Stock held, in addition to such rights in respect thereof to which
such holder was entitled immediately prior to such event, to receive (i) such
additional dividends as equal the Dividend Multiple in effect immediately prior
to such event multiplied, first, by the additional dividends to which the holder
of a share of Common Stock shall be entitled upon exercise of such right or
warrant by virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction (as hereinafter defined)
and (ii) such additional voting rights as equal the Vote Multiple in effect
immediately prior to such event multiplied, first, by the additional voting
rights to which the holder of a share of Common Stock shall be entitled upon
exercise of such right or warrant by virtue of the capital stock which could be
acquired upon such exercise and multiplied again by the Discount Fraction and
(iii) such additional distributions upon liquidation, dissolution or winding up
of the Corporation as equal the Liquidation Multiple in effect immediately prior
to such event multiplied, first, by the additional amount which the holder of a
share of Common Stock shall be entitled to receive upon liquidation, dissolution
or winding up of the Corporation upon exercise of such right or warrant by
virtue of the capital stock which could be acquired upon such exercise and
multiplied again by the Discount Fraction. For purposes of this paragraph, the
"Discount Fraction" shall be a fraction, the numerator of which shall be the
difference between the Fair Market Value of a share of the capital stock subject
to a right or warrant distributed to holders of shares of Common Stock of the
Corporation as contemplated by this paragraph immediately after the distribution
thereof and the purchase price per share for such share of capital stock
pursuant to such right or warrant and the denominator of which shall the Fair
Market Value of a share of such capital stock immediately after the distribution
of such right or warrant.
(D) For purposes of this Section (e) of Article III, the "Fair Market Value" of a share of capital stock of the Corporation (including a share of Common Stock) on any date shall be deemed to be the average of the daily closing price per share thereof over the 30 consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date; PROVIDED, HOWEVER, that, in the event that such Fair Market Value of any such share of capital stock is determined during a period which includes any date that is within 30 Trading Days after (i) the ex-dividend date for a dividend or distribution on stock payable in shares of such stock or securities convertible into shares of such stock, or (ii) the effective date of any subdivision, split, combination, consolidation, reverse stock split or reclassification of such stock, then, and in each such case, the Fair Market Value shall be appropriately adjusted by the Board of Directors of the Corporation to take into account ex-dividend or post-effective date trading. The closing price for any day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked prices, regular way (in either case, as reported in the applicable transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange), or, if the shares are not listed or admitted to trading on the New York Stock Exchange, as reported in the applicable transaction reporting system with respect to securities listed on the principal national securities exchange on which the shares are listed or admitted to trading or, if the shares are not listed or admitted to trading on any national securities exchange, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System's National Market System ("NASDAQ/NMS") or such other system then in use, or if on any such date the shares are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the shares selected by the Board of Directors of the Corporation. The term "Trading Day" shall mean a day on which the principal national securities exchange on which the shares are listed or admitted to trading is open for the transaction of business or, if the shares are not listed or admitted to trading on any national securities exchange, on which the NASDAQ/NMS or such national securities exchange as may be selected by the Board of Directors of the Corporation is open. If the shares are not publicly held or not so listed or traded on any day within the period of 30 Trading Days applicable to the determination of Fair Market Value thereof as aforesaid, "Fair Market Value" shall mean the fair market value thereof per share as determined in good faith by the Board of Directors of the Corporation. In either case referred to in the foregoing sentence, the determination of Fair Market Value shall be described in a statement filed with the Secretary of the Corporation.
(8) Consolidation, Merger, Etc. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each outstanding share of Series A Preferred Stock shall at the same time be similarly exchanged for or changed into the aggregate amount of stock, securities, cash and/or other property (payable in like kind), as the case may be, for which or into which each share of Common Stock is changed or exchanged multiplied by the highest of the Vote Multiple, the Dividend Multiple or the Liquidation Multiple in effect immediately prior to such event.
(9) Effective Time of Adjustments.
(A) Adjustments to the Series A Preferred Stock required by the provisions hereof shall be effective as of the time at which the event requiring such adjustments occur.
(B) The Corporation shall give prompt written notice to each holder of a share of Series A Preferred Stock of the effect of any adjustment to the voting rights, dividend rights or rights upon liquidation, dissolution or winding up of the Corporation of such shares required by the provisions hereof. Notwithstanding the foregoing sentence, the failure of the Corporation to give such notice shall not affect the validity of or the force or effect of or the requirement for such adjustment.
(10) No Redemption. The shares of Series A Preferred Stock shall not be redeemable at the option of the Corporation or any holder thereof. Notwithstanding the foregoing sentence of this Section 10, the Corporation may acquire shares of Series A Preferred Stock in any other manner permitted by law and the Articles of Incorporation.
(11) Ranking. Unless otherwise provided in these Articles of Incorporation, the Series A Preferred Stock shall rank junior to all other series of the Corporation's Preferred Stock as to the payment of dividends and the distribution of assets on liquidation, dissolution or winding up and shall rank senior to the Common Stock.
(12) Amendment. These Articles of Incorporation of the Corporation shall not be amended in any manner which would adversely affect the rights, preferences or limitations of the Series A Preferred Stock without, in addition to any other vote of shareholders required by law, the approval of (1) the holders of the then outstanding Rights (as defined in Section (e)(4)(C) of this Article III) and (2) the holders of the then outstanding shares of the Series A Preferred Stock, with the holders of the Rights and the holders of the Series A Preferred
Stock voting together as a single voting group; PROVIDED, HOWEVER, that the holder of each share of Series A Preferred Stock shall have one vote and the holder of each Right shall have one one-hundredth of a vote with respect to each such amendment.
EXHIBIT 5.1
March 23, 1998
HEICO Corporation
3000 Taft Street
Hollywood, Florida 33021
Re: OFFERING OF COMMON STOCK OF HEICO CORPORATION
Gentleman:
On the date hereof, HEICO Corporation, a Florida corporation (the "Company"), filed with the Securities and Exchange Commission a Registration Statement on Form S-3 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Act"). The Registration Statement relates to the offering and sale by certain selling shareholders of 218,590 shares of the Company's Common Stock, par value$.01 per share (the "Shares").
We have acted as special counsel to the Company in connection with the preparation and filing of the Registration Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Amended Articles of
Incorporation and the Amended Bylaws of the Company; (ii) resolutions of the
Board of Directors of the Company authorizing the offering and related matters;
(iii) the Registration Statement and exhibits thereto; and (iv) such other
documents and instruments as we have deemed necessary or appropriate for the
expression of the opinion herein contained. In making the foregoing
examinations, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of all documents submitted to us as certfied or
photostatic copies. As to various questions of fact material to this opinion, we
have relied, to the extent we deem reasonably appropriate, upon representations
or certificates of officers or directors of the Company and upon documents,
records and instruments furnished to us by the Company, without independently
checking or verifying the accuracy of such documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the Shares have been duly and validly authorized and issued and are fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the caption "Legal Matters" in the Prospectus forming a part of the Registration Statement. In giving such consent, we do not admit that we come within the category of persons whose consent is required by Section 7 of the Act or rules and regulations of the Commission thereunder.
Sincerely,
/s/ GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
|
EXHIBIT 10.18
HEICO CORPORATION
1993 STOCK OPTION PLAN
1. PURPOSE. The purpose of this Plan is to advance the interests of HEICO Corporation, a Florida corporation (the "Company"), and its Subsidiaries by providing an additional incentive to attract and retain qualified and competent persons who provide management and other services and upon whose efforts and judgement the success of the Company and Subsidiaries is largely dependent, through the encouragement of stock ownership in the Company by such persons.
2. DEFINITIONS. As used herein, the following terms shall have the meanings indicated:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Committee" shall mean the stock option committee appointed by the Board pursuant to Section 12 hereof, or if not appointed, the Board.
(c) "Common Stock" shall mean the common stock, par value $.01 per share, of the Company.
(d) "Director" shall mean a member of the Board.
(e) "Disinterested Person" shall mean a Director who, during one year prior to the time he serves on the Committee and during such service, has not received Shares, options for Shares or any rights with respect to Shares under this Plan or any other employee and/or Director benefit plan of the Company or any of its affiliates except pursuant to an election to receive annual director's fees in securities of the Company.
(f) "Employee" and "employment" shall, except where the context otherwise requires, mean or refer to a Director and his Directorship as well as to a regular employee and his employment.
(g) "Fair Market Value" of a Share on any date of reference shall mean the Closing Price of the Common Stock on such date, unless the Committee in its sole discretion shall determine otherwise in a fair and uniform manner. For this purpose, the Closing Price of the Common Stock on any business day shall be (i) if the Common Stock is listed or admitted for trading on any United States national securities exchange, or if actual transactions are otherwise reported on a consolidated transaction reporting system, the last reported sale price of Common Stock on such exchange or reporting system, as reported in any newspaper of general circulation, or (ii) if the Common Stock is quoted on the National Association of Securities Dealers Automated Quotations System ("NASDAQ"), or any similar system of automated dissemination of quotations of securities prices in common use, the mean between the closing bid and asked quotations for Common Stock as reported by the National Quotation Bureau, Incorporated, if at least two securities dealers have inserted both bid and asked quotations for Common Stock on at least 5 of the 10 preceding business days.
(h) "Grantee" shall mean a person to whom a stock option is granted under this Plan or any person who succeeds to the rights of such person under this Plan by reason of death of such person or transfer of such option as may be allowed under this Plan.
(i) "Incentive Stock Option" means an option to purchase Shares of Common Stock which is intended to qualify as an incentive stock option as defined in Section 422 of the Internal Revenue Code.
(j) "Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as amended from time to time.
(k) "Key Employee" means any person, including officers and Directors, in the regular full-time employment of the Company or any Subsidiary who, in the opinion of the Committee, is or is expected to be responsible for the management, growth or protection of some part or all of the business of the Company or a Subsidiary.
(l) "Non-qualified Stock Option" means an option to purchase Shares of Common Stock which is not intended to qualify as an Incentive Stock Option.
(m) "Option" (when capitalized) shall mean any option granted under this Plan.
(n) "Plan" shall mean this 1993 Stock Option Plan for HEICO Corporation.
(o) "Share(s)" shall mean a share or shares of the Common Stock.
(p) "Subsidiary" shall mean any corporation (other than the Company) in any unbroken chain of corporations, beginning with the Company if, at the time of the granting of the Option, each of the corporations other than the last corporation in the unbroken chain owns stock possessing ten (10) percent or more of any class of any equity security in one of the other corporations in such chain and has the right to direct the management of the other corporation.
3. SHARES AND OPTIONS. The Company may grant to Grantees from time to time Options to purchase an aggregate of up to 1,682,500 Shares from Shares held in the Company's treasury or from authorized and unissued Shares. Of this amount, all or any may be optioned as Incentive Stock Options, as Non-qualified Stock Options, or any combination thereof. If any Option granted under this Plan shall terminate, expire, or be cancelled or surrendered as to any Shares, new Options may thereafter be granted covering such Shares.
4. CONDITIONS FOR GRANT OF OPTIONS.
(a) Each Option shall be evidenced by an Option Agreement, which Option Agreement may be altered consistent with this Plan and with the approval of both the Committee and the Grantee, that may contain terms deemed necessary or desirable by the Committee, including, but not limited to, a requirement that the Grantee agree that, for a specified period after termination of his employment, he will not enter into any employment with, or participate directly or indirectly in, any entity which is directly or indirectly competitive with the Company or any of its Subsidiaries, provided such terms are not inconsistent with this Plan or any applicable law. Grantees shall be selected by the Committee in its discretion and shall be employees and Directors who are not employees; provided, however, that Directors who are not employees shall not be eligible to receive Incentive Stock Options. Any person who files with the Committee, in a form satisfactory to the Committee, a written waiver of eligibility to receive any Option under this Plan shall not be eligible to receive any Option under this Plan for the duration of such waiver.
(b) In granting Options, the Committee shall take into consideration the contribution the person has made to the success of the Company or its Subsidiaries and such other factors as the Committee shall determine. The Committee shall also have the authority to consult with and receive recommendations from officers and other personnel of the Company and its Subsidiaries with regard to these matters. The Committee may from time to time in granting Options under the Plan prescribe such other terms and conditions concerning such Options as it deems appropriate, including, without limitation, (i) prescribing the date or dates on which the Option becomes exercisable, (ii) providing that the Option rights accrue or become exercisable in installments over a period of years, or upon the attainment of stated goals or both, or (iii) relating an Option to the continued employment of the Grantee for a specified period of time, provided that such terms and conditions are not more favorable to the Grantee than those expressly permitted herein.
(c) The Options granted to Grantees under this Plan shall be in addition to regular salaries, Director's fees, pension, life insurance or other benefits related to their employment or Directorships with the Company or its Subsidiaries. Neither the Plan nor any Option granted under the Plan shall confer upon any person any right to employment or Directorship or continuation of employment or Directorship by the Company or any of its Subsidiaries.
(d) The Committee in its sole discretion shall determine in each case whether periods of military or government service shall constitute a continuation of employment for the purposes of this Plan or any Option.
(e) During each fiscal year of the Company, no Employee may be granted Option(s) to purchase more than 100,000 Shares.
(f) No employee may be granted any Incentive Stock Option pursuant to this plan to the extent that the aggregate fair market value (determined at the time the Option is granted) of the Shares with respect to which Incentive Stock Options granted to the employee under the terms of this Plan or its predecessor after December 31, 1986 are exercisable for the first time by the employee during any calendar year exceeds $100,000.
(g) Option agreements with respect to Incentive Stock Options shall contain such terms and conditions as may be required under Section 422 of the Internal Revenue Code, as such section may be amended from time to time.
5. OPTION PRICE. The option price per share of any Option shall be the price determined by the Committee; provided, however, that in no event shall the option price per Share of any Incentive Stock Option be less than (i) 100% or (ii) in the case of an individual who owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company, 110%, of the Fair Market Value of the Shares underlying such Option on the date such Option is granted.
6. EXERCISE OF OPTIONS. An Option shall be deemed exercised when (i) the Company has received written notice of such exercise in accordance with the terms of the Option, (ii) full payment of the aggregate option price of the Shares as to which the Option is exercised has been made, and (iii) arrangements that are satisfactory to the Committee in its sole discretion have been made for the Grantee's payment to the Company of the amount, if any, that is necessary to withhold in accordance with applicable Federal or State tax withholding requirements. Unless further limited by the Committee in any Option Agreement, the option price of any Shares shall be paid in cash, by certified check or official bank check, by money order, by the Grantee's promissory note, with Shares (including Shares acquired pursuant to a partial and simultaneous exercise of the Option) or by a combination of the above; provided further, however, that the Committee in its sole discretion may accept a personal check in full or partial payment of any Shares. If the exercise price is paid in whole or in part with Shares, the value of the Shares surrendered shall be their Fair Market Value on the business day immediately preceding the date the Option is exercised. The Company in its sole discretion may, on an individual basis or pursuant to a general program established in connection with this Plan, lend money to a Grantee to obtain the cash necessary to exercise all or a portion of an Option granted hereunder or to pay any tax liability of the Grantee attributable to such exercise. If the exercise price is paid in whole or in part with the Grantee's promissory note, such note shall, unless specified by the Committee at the time of grant or any time thereafter, (w) provide for full recourse to the maker, (x) be collateralized by the pledge of the Shares that the Grantee purchases upon exercise of the Option, (y) bear interest at the prime rate of the Company's principal lender and (z) contain such other terms as the Committee in its sole discretion shall reasonably require. No Grantee or permitted transferee(s) thereof shall be deemed to be a holder of any Shares subject to an Option unless and until exercise has been completed pursuant to clauses (i-iii) above. No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights for which the record date is prior to the date of exercise, except as expressly provided in Section 9 hereof.
7. EXERCISABILITY OF OPTIONS. Any Option shall become exercisable in such amounts, at such intervals and upon such terms as the Committee shall provide in the corresponding Option agreement, except as otherwise provided in this Section 7.
(a) The expiration date of an Option shall be determined by the Committee at the time of grant, but in no event shall an Incentive Stock Option be exercisable after the expiration of (i) ten (10) years from the date of grant of the Option or (ii) in the case of an individual who owns stock possessing more than 10% of the total combined voting power of all classes of voting stock of the Company, five years from the date of the grant of the Option.
(b) Except to the extent otherwise provided in any Option agreement, each outstanding Option shall become immediately fully exercisable
(i) if any "person" (as such term is used in Sections 13(d) and 14(d) (2) of the Securities Exchange Act of 1934), except the Mendelson Reporting Group, as that group is defined in an Amendment to a Schedule 13D filed on February 26, 1992 or any subsequent amendment to the aforementioned 13D, is or becomes a beneficial owner, directly or indirectly, of securities of the Company representing 15% or more of the combined voting power of the Corporation's then outstanding securities;
(ii) if, during any period of two consecutive years, individuals who at the beginning of such period constitute the Board cease for any reason to constitute at least a majority thereof, unless the Board in existence immediately preceding the two year period shall have nominated the new Directors whose Directorships have create the altered Board composition; or
(iii) if the stockholders of the Company shall approve a plan of merger, consolidation, reorganization, liquidation or dissolution in which the Company does not survive (unless the merger, consolidation, reorganization, liquidation or dissolution is subsequently abandoned) provided, however, that a merger or reorganization pursuant to which the Company merges with a Subsidiary which is owned principally by the Company's pre-merger or reorganization shareholders and which becomes publicly traded within five (5) business days thereafter shall not trigger immediate exercisability under this Section 7; or
(iv) if the stockholders of the Company shall approve a plan for the sale, lease, exchange or other disposition of all or substantially all of the property and assets of the Company (unless such approved plan is subsequently abandoned).
(c) The Committee may in its sole discretion accelerate the date on which any Option may be exercised.
8. TERMINATION OF OPTION PERIOD.
(a) The unexercised portion of any Option shall automatically and without notice terminate and become null and void at the time of the earliest to occur of the following:
(i) one week after the date on which the Grantee's employment is terminated for any reason other than by reason of (A) cause (which, for purposes of this Plan, shall mean the termination of the Grantee's employment by reason of the Grantee's willful misconduct or gross negligence), (B) a mental or physical disability as determined by a medical doctor satisfactory to the Committee, or (C) death; provided, however, that the one week period may be extended by the Committee to up to three (3) months with respect to Incentive Stock Options and up to thirty six (36) months in the case of Non-qualified Stock Options;
(ii) immediately upon termination of the Grantee's employment for cause, provided, however, that the Committee may extend the period to up to three (3) months with respect to Incentive Stock Options and up to thirty six (36) months in the case of Non-qualified Stock Options;
(iii) six months after the date on which the Grantee's employment is terminated by reason of mental or physical disability as determined by a medical doctor satisfactory to the Committee, provided, however, that the Committee may extend the period to up to thirty six (36) months in respect to Non-qualified Stock Options;
(iv) (A) twelve months after the date of termination of the Grantee's employment by reason of death of the Grantee, or (B) three months after the date on which the Grantee shall die if such death shall occur during the six (6) month period specified in Subsection 8(a)(iii) hereof, provided, however, that the Committee may extend the period to up to thirty six (36) months in respect to Non-qualified Stock Options.
(b) The Committee in its sole discretion may by giving written notice ("cancellation notice") cancel, effective upon the date of the consummation of any corporate transaction described in Subsections 7(b)(iii) or (iv) hereof, any Option that remains unexercised on such date. Such cancellation notice shall be given a reasonable period of time prior to the proposed date of such cancellation and may be given either before or after stockholder approval of such corporate transaction.
9. ADJUSTMENT OF SHARES.
(a) If, at any time while the Plan is in effect or unexercised Options are outstanding, there shall be any increase or decrease in the number of issued and outstanding Shares through the declaration of a stock dividend or through any recapitalization resulting in a stock split-up, combination or exchange of Shares, then and in such event:
(i) appropriate adjustment shall be made in the maximum number of Shares available for grant under the Plan (including, but not limited to, shares permitted to be granted to any one individual employee), so that the same percentage of the Company's issued and outstanding Shares shall continue to be subject to being so optioned; and
(ii) appropriate adjustment shall be made in the number of Shares and the option price per Share thereof then subject to any outstanding Option, so that the same percentage of the Company's issued and outstanding Shares shall remain subject to purchase at the same aggregate option price.
(b) Subject to the specific terms of any Option agreement, the Committee may change the terms of Options outstanding under this Plan with respect to the option price or the number of Shares subject to the Options, or both, when, in the Committee's sole discretion, such adjustments become appropriate by reason of a corporate transaction described in Subsections 7(b)(iii) or (iv) hereof.
(c) Except as otherwise expressly provided herein, the issuance by the Company of shares of its capital stock of any class, or securities convertible into shares of capital stock of any class, either in connection with direct sale or upon the exercise of rights or warrants to subscribe therefor, or upon conversion of shares or obligations of the Company convertible into such shares or other securities, shall not affect, and no adjustment by reason thereof shall be made with respect to the number of or option price of Shares then subject to outstanding Options granted under this Plan.
(d) Without limiting the generality of the foregoing, the existence of outstanding Options granted under the Plan shall not affect in any manner the right or power of the Company to make, authorize or consummate (i) any or all adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business; (ii) any merger or consolidation of the Company; (iii) any issuance by the Company of debt securities or preferred or preference stock that would rank above the Shares subject to outstanding Options; (iv) the dissolution or liquidation of the Company; (v) any sale, transfer or assignment of all or any part of the assets or business of the Company; or (vi) any other corporate act or proceeding, whether of a similar character or otherwise.
10. TRANSFERABILITY OF OPTIONS. Each Option agreement shall provide that the Option shall not be transferable by the Grantee otherwise than by will or the laws of descent and distribution or, in the case of Non-qualified Stock Options, pursuant to a qualified domestic relations order as defined by the Internal Revenue Code or Title I of the Employee Retirement Income Security Act, or the rules thereunder; provided, however, that the Committee may waive the foregoing transferability restriction with respect to Non-qualified Stock Options on a case-by-case basis.
11. ISSUANCE OF SHARES. As a condition of any sale or issuance of Shares upon exercise of any Option, the Committee may require such arrangement or undertakings, if any, as the Committee may deem necessary or advisable to ensure compliance with any applicable federal or state securities law or regulation, including, but not limited to, the following:
(i) a representation and warranty by the Grantee to the Company, at the time any Option is exercised, that he is acquiring the Shares to be issued to him for investment and not with a view to, or for sale in connection with, the distribution of any such Shares; and
(ii) a representation, warranty and/or agreement to be bound by any legends that are, in the opinion of the Committee, necessary or appropriate to comply with the provisions of any securities laws deemed by the Committee to be applicable to the issuance of the Shares and are endorsed upon the Share certificates.
12. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by a stock option committee (herein called the "Committee") consisting of not less than two (2) Directors, all of whom shall be Disinterested Persons; provided, however, that if no Committee is appointed, the Board may administer the Plan provided that all members of the Board at the time are Disinterested Persons. The Committee shall have all of the powers of the Board with respect to the Plan. Any member of the Committee may be removed at any time, with or without cause, by resolution of the Board, and any vacancy occurring in the membership of the Committee may be filled by appointment of the Board.
(b) The Committee, from time to time, may adopt rules and regulations for carrying out the purposes f the Plan. The determinations and the interpretation and construction of any provision of the Plan by the Committee shall be final and conclusive.
(c) Any and all decisions or determinations of the Committee shall be made either (i) by a majority vote of the members of the Committee at a meeting or (ii) without a meeting by the unanimous written approval of the members of the Committee.
13. INTERPRETATION.
(a) If any provision of the Plan should be held invalid for any reason, such holding shall not affect the remaining provisions hereof, but instead the Plan shall be construed and enforced as if such provision had never been included in the Plan.
(b) This Plan shall be governed by the laws of the State of Florida.
(c) Headings contained in this Plan are for convenience only and shall in no manner be construed as part of this Plan.
(d) Any reference to the masculine, feminine, or neuter gender shall be a reference to such other gender as is appropriate.
14. AMENDMENT AND DISCONTINUATION OF THE PLAN. The Committee may from time to time amend the Plan or any Option consistent with the Plan; provided, however, that (except to the extent provided in Section 9) no such amendment may, without approval by the stockholders of the Company, (a) increase the number of Shares reserved for Options, (b) change the requirements for eligibility to receive Options, or (c) materially increase the benefits accruing to the participants under the Plan; and provided, further, that (except to the extent provided in Section 8) no amendment or suspension of the Plan or any Option issued hereunder shall substantially impair any Option previously granted to any Grantee without the consent of such Grantee.
15. EFFECTIVE DATE AND TERMINATION DATE. The effective date of this Plan shall be March 17, 1993 provided that the Plan is approved by the Company's Stockholder(s), and the Plan shall terminate on the tenth (10th) anniversary of the effective date. After such termination date, no Options may be granted hereunder; provided, however, that Options outstanding at such date may be exercised pursuant to their terms.
Dated as of the 17TH HEICO CORPORATION
day of MARCH, 1998.
By: /S/ LAURANS A. MENDELSON
------------------------
Laurans A. Mendelson
Chairman, President and
Chief Executive Officer
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of HEICO Corporation on Form S-3 of our report dated December 24, 1997, except for the matter described in the fourth paragraph of Note 13, as to which the date is January 27, 1998, appearing in and incorporated by reference in the Annual Report on Form 10-K/A, Amendment No. 1, of HEICO Corporation for the year ended October 31, 1997 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement.
Deloitte & Touche LLP
Certified Public Accountants
Miami, Florida
March 19, 1998
| ARTICLE 5 |
| PERIOD TYPE | 3 MOS |
| FISCAL YEAR END | OCT 31 1998 |
| PERIOD END | JAN 31 1998 |
| CASH | 26,222,000 |
| SECURITIES | 0 |
| RECEIVABLES | 12,682,000 |
| ALLOWANCES | (381,000) |
| INVENTORY | 20,586,000 |
| CURRENT ASSETS | 62,039,000 |
| PP&E | 24,046,000 |
| DEPRECIATION | (15,218,000) |
| TOTAL ASSETS | 93,240,000 |
| CURRENT LIABILITIES | 14,199,000 |
| BONDS | 10,427,000 |
| PREFERRED MANDATORY | 0 |
| PREFERRED | 0 |
| COMMON | 83,000 |
| OTHER SE | 61,894,000 |
| TOTAL LIABILITY AND EQUITY | 93,240,000 |
| SALES | 19,783,000 |
| TOTAL REVENUES | 19,783,000 |
| CGS | 12,479,000 |
| TOTAL COSTS | 12,479,000 |
| OTHER EXPENSES | 3,483,000 |
| LOSS PROVISION | 0 |
| INTEREST EXPENSE | 129,000 |
| INCOME PRETAX | 4,206,000 |
| INCOME TAX | 1,406,000 |
| INCOME CONTINUING | 2,282,000 |
| DISCONTINUED | 0 |
| EXTRAORDINARY | 0 |
| CHANGES | 0 |
| NET INCOME | 2,282,000 |
| EPS PRIMARY | .28 |
| EPS DILUTED | .22 |