Florida
|
1-4604
|
65-0341002
|
||
(State
or other jurisdiction
of
incorporation)
|
(Commission
File
Number)
|
(IRS
Employer
Identification
No.)
|
3000
Taft Street, Hollywood, Florida
|
33021
|
(Address
of principal executive offices)
|
(Zip
code)
|
o
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
o
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
o
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
o
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Item
5.02.
|
Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
|
Item
9.01.
|
Financial
Statements and Exhibits.
|
10.1
|
HEICO
Corporation Leadership Compensation Plan effective October 1, 2006, as
Re-amended and Restated, effective January 1,
2009.
|
HEICO CORPORATION
|
|||
(Registrant)
|
|||
Date: September
17, 2009
|
By:
|
/s/ THOMAS S. IRWIN
|
|
Thomas
S. Irwin,
|
|||
Executive
Vice President
and
Chief Financial Officer
(Principal
Financial and Accounting Officer)
|
Exhibit
No.
|
Description
|
10.1
|
HEICO
Corporation Leadership Compensation Plan effective October 1, 2006, as
Re-amended and Restated, effective January 1,
2009.
|
HEICO
Corporation
Leadership
Compensation Plan
Plan
Document
|
Exhibit
10.1
|
Page
|
||
ARTICLE
1
|
Definitions
|
1
|
ARTICLE
2
|
Selection,
Enrollment, Eligibility
|
7
|
2.1
|
Selection
by Committee
|
7
|
2.2
|
Enrollment
and Eligibility Requirements; Commencement of
Participation.
|
7
|
ARTICLE
3
|
Deferral
Commitments/Company Contribution Amounts/ Company Matching Amounts/
Vesting/Crediting/Taxes
|
8
|
3.1
|
Minimum
Deferrals.
|
8
|
3.2
|
Maximum
Deferral.
|
8
|
3.3
|
Election
to Defer; Effect of Election Form.
|
9
|
3.4
|
Withholding
and Crediting of Annual Deferral Amounts
|
10
|
3.5
|
Company
Contribution Amount.
|
11
|
3.6
|
Company
Matching Amount
|
11
|
3.7
|
Crediting
of Amounts after Benefit Distribution
|
11
|
3.8
|
Vesting.
|
11
|
3.9
|
Crediting/Debiting
of Account Balances
|
13
|
3.10
|
FICA
and Other Taxes.
|
15
|
ARTICLE
4
|
Scheduled
Distribution; Unforeseeable Emergencies
|
16
|
4.1
|
Scheduled
Distribution
|
16
|
4.2
|
Postponing
Scheduled Distributions
|
17
|
4.3
|
Other
Benefits Take Precedence Over Scheduled Distributions
|
17
|
4.4
|
Unforeseeable
Emergencies.
|
17
|
ARTICLE
5
|
Change
in Control Benefit
|
18
|
5.1
|
Change
in Control Benefit
|
18
|
5.2
|
Payment
of Change in Control Benefit
|
18
|
ARTICLE
6
|
Retirement
Benefit
|
18
|
6.1
|
Retirement
Benefit
|
18
|
6.2
|
Payment
of Retirement Benefit.
|
18
|
ARTICLE
7
|
Termination
Benefit
|
19
|
7.1
|
Termination
Benefit
|
19
|
7.2
|
Payment
of Termination Benefit
|
19
|
ARTICLE
8
|
Disability
Benefit
|
20
|
8.1
|
Disability
Benefit
|
20
|
8.2
|
Payment
of Disability Benefit
|
20
|
ARTICLE
9
|
Death
Benefit
|
20
|
9.1
|
Death
Benefit
|
20
|
9.2
|
Payment
of Death Benefit
|
20
|
ARTICLE
10
|
Beneficiary
Designation
|
20
|
10.1
|
Beneficiary
|
20
|
10.2
|
Beneficiary
Designation; Change; Spousal Consent
|
20
|
10.3
|
Acknowledgment
|
21
|
10.4
|
No
Beneficiary Designation
|
21
|
10.5
|
Doubt
as to Beneficiary
|
21
|
10.6
|
Discharge
of Obligations
|
21
|
ARTICLE
11
|
Leave
of Absence
|
21
|
11.1
|
Paid
Leave of Absence
|
21
|
11.2
|
Unpaid
Leave of Absence
|
21
|
11.3
|
Leaves
Resulting in Separation from Service
|
21
|
ARTICLE
12
|
Termination
of Plan, Amendment or Modification
|
22
|
12.1
|
Termination
of Plan
|
22
|
12.2
|
Amendment.
|
22
|
12.3
|
Plan
Agreement
|
23
|
12.4
|
Effect
of Payment
|
23
|
ARTICLE
13
|
Administration
|
23
|
13.1
|
Committee
Duties
|
23
|
13.2
|
Administration
Upon Change In Control
|
23
|
13.3
|
Agents
|
24
|
13.4
|
Binding
Effect of Decisions
|
24
|
13.5
|
Indemnity
of Committee
|
24
|
13.6
|
Employer
Information
|
24
|
13.7
|
Receipts
and Release
|
24
|
ARTICLE
14
|
Other
Benefits and Agreements
|
24
|
14.1
|
Coordination
with Other Benefits
|
24
|
ARTICLE
15
|
Claims
Procedures
|
24
|
15.1
|
Presentation
of Claim
|
24
|
15.2
|
Notification
of Decision
|
25
|
15.3
|
Review
of a Denied Claim
|
25
|
15.4
|
Decision
on Review
|
26
|
15.5
|
Legal
Action
|
26
|
ARTICLE
16
|
Trust
|
26
|
16.1
|
Establishment
of the Trust
|
26
|
16.2
|
Interrelationship
of the Plan and the Trust
|
26
|
16.3
|
Distributions
From the Trust
|
27
|
ARTICLE
17
|
Miscellaneous
|
27
|
17.1
|
Status
of Plan
|
27
|
17.2
|
Unsecured
General Creditor
|
27
|
17.3
|
Employer’s
Liability
|
27
|
17.4
|
Nonassignability
|
27
|
17.5
|
Not
a Contract of Employment
|
27
|
17.6
|
Furnishing
Information
|
28
|
17.7
|
Terms
|
28
|
17.8
|
Captions
|
28
|
17.9
|
Governing
Law
|
28
|
17.10
|
Notice
|
28
|
17.11
|
Successors
|
28
|
17.12
|
Spouse’s
Interest
|
28
|
17.13
|
Validity
|
29
|
17.14
|
Incompetent
|
29
|
17.15
|
Court
Order
|
29
|
17.16
|
Distribution
in the Event of Income Inclusion Under 409A
|
29
|
17.17
|
Deduction
Limitation on Benefit Payments
|
29
|
17.18
|
Insurance
|
30
|
1.1
|
“Account Balance” shall
mean, with respect to a Participant, an entry on the records of the
Employer equal to the sum of the Participant’s Annual
Accounts. The Account Balance shall be a bookkeeping entry only
and shall be utilized solely as a device for the measurement and
determination of the amounts to be paid to a Participant, or his or her
designated Beneficiary, pursuant to this
Plan.
|
1.2
|
“Annual Account” shall
mean, with respect to a Participant, an entry on the records of the
Employer equal to the following amount: (i) the sum of the
Participant’s Annual Deferral Amount, Company Contribution Amount and
Company Matching Amount for any one Plan Year or Fiscal Year, as
applicable, plus (ii) amounts credited or debited to such amounts pursuant
to this Plan, less (iii) all distributions made to the Participant or his
or her Beneficiary pursuant to this Plan that relate to the Annual Account
for such Plan Year. The Annual Account shall be a bookkeeping
entry only and shall be utilized solely as a device for the measurement
and determination of the amounts to be paid to a Participant, or his or
her designated Beneficiary, pursuant to this
Plan.
|
1.3
|
“Annual Deferral Amount”
shall mean (i) that portion of a Participant’s Base Salary and other
compensation that does not qualify as Fiscal Year Compensation that a
Participant defers in accordance with Article 3 for any one Plan Year,
without regard to whether such amounts are withheld and credited during
such Plan Year, and (ii) that portion of the Participant’s compensation
that qualifies as Fiscal Year Compensation that a Participant defers in
accordance with Article 3 for any Fiscal Year, without regard to whether
such amounts are withheld and credited during such Fiscal
Year. In the event of a Participant’s Disability or death prior
to the end of a Plan Year, such year’s Annual Deferral Amount shall be the
actual amount withheld prior to that
event.
|
1.4
|
“Annual Installment
Method” shall be an annual installment payment over the number of
years selected by the Participant in accordance
with this Plan, calculated as follows: (i) for the first annual
installment, the vested portion of each Annual Account shall be calculated
as of the close of business on or around the Participant’s
Benefit Distribution Date, as determined by the Committee in its sole
discretion, and (ii) for
remaining annual installments, the vested portion of each applicable
Annual Account shall be calculated on every anniversary of such
calculation date, as applicable. Each annual installment shall
be calculated by multiplying this balance by a fraction, the numerator of
which is one and the denominator of which is the remaining number of
annual payments due to the Participant. By way of example, if
the Participant elects a ten (10) year Annual Installment Method as the
form of Retirement Benefit for an Annual Account, the first payment shall
be 1/10 of the vested balance of such Annual Account, calculated as
described in this definition. The following year, the payment
shall be 1/9 of the vested balance of such Annual Account, calculated as
described in this definition.
|
1.5
|
“Base Salary” shall mean
the annual cash compensation relating to services performed during any
Plan Year, excluding distributions from nonqualified deferred compensation
plans, bonuses, commissions, overtime, fringe benefits, stock options,
relocation expenses, incentive payments, non-monetary awards, director
fees and other fees, and automobile and other allowances paid to a
Participant for employment services rendered (whether or not such
allowances are included in the Employee’s gross income). Base
Salary shall be calculated before reduction for compensation voluntarily
deferred or contributed by the Participant pursuant to all qualified or
nonqualified plans of any Employer and shall be calculated to include
amounts not otherwise included in the Participant’s gross income under
Code Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans
established by any Employer; provided, however, that all such amounts will
be included in compensation only to the extent that had there been no such
plan, the amount would have been payable in cash to the
Employee.
|
1.6
|
“Beneficiary” shall mean
one or more persons, trusts, estates or other entities, designated in
accordance with Article 10, that are entitled to receive benefits
under this Plan upon the death of a
Participant.
|
1.7
|
“Beneficiary Designation
Form” shall mean the form established from time to time by the
Committee that a Participant completes, signs and returns to the Committee
to designate one or more
Beneficiaries.
|
1.8
|
“Benefit Distribution
Date” shall mean a date that triggers distribution of a
Participant’s vested benefits. A Benefit Distribution Date for
a Participant shall be determined upon the occurrence of any one of the
following:
|
|
(a)
|
If
the Participant Retires, the Benefit Distribution Date for his or her
vested Account Balance shall be the last day of the six-month period
immediately following the date on which the Participant Retires; provided,
however, in the event the Participant changes the Retirement Benefit
election for one or more Annual Accounts in accordance with Section
6.2(b), the Benefit Distribution Date for such Annual Account(s) shall be
postponed in accordance with such section 6.2(b);
or
|
|
(b)
|
If
the Participant experiences a Termination of Employment, the Benefit
Distribution Date for his or her vested Account Balance shall be the last
day of the six-month period immediately following the date on which the
Participant experiences a Termination of Employment;
or
|
|
(c)
|
If
the Participant dies prior to the complete distribution of his or her
vested Account Balance, the Participant’s Benefit Distribution Date shall
be the date on which the Committee is provided with proof that is
satisfactory to the Committee of the Participant’s death;
or
|
|
(d)
|
If
the Participant becomes Disabled, the Participant’s Benefit Distribution
Date shall be the date on which the Participant becomes Disabled;
or
|
|
(e)
|
If
(i) a Change in Control occurs prior to the Participant’s Termination of
Employment, Retirement, death or Disability, and (ii) the Participant has
elected to receive a Change in Control Benefit, as set forth in Section
5.1 below, the Participant’s Benefit Distribution Date shall be the date
on which the Company experiences a Change in Control, as determined by the
Committee in its sole discretion.
|
1.9
|
“Board” shall mean the
board of directors of the Company.
|
1.10
|
“Bonus” shall mean any
compensation, in addition to Base Salary, Commissions and LTIP Amounts,
earned by a Participant for services rendered during a Plan Year or Fiscal
Year, as applicable, under any Employer’s annual bonus and cash incentive
plans.
|
1.11
|
“Change in Control” shall
mean any “change in control event” as defined in accordance with Code
Section 409A and related Treasury guidance and
Regulations.
|
1.12
|
“Change in Control
Benefit” shall have the meaning set forth in Article
5.
|
1.13
|
“Claimant” shall have the
meaning set forth in
Section 15.1.
|
1.14
|
“Code” shall mean the
Internal Revenue Code of 1986, as it may be amended from time to
time.
|
1.15
|
“Commissions” shall mean
the cash commissions earned by a Participant from any Employer for
services rendered during a Plan Year, excluding Bonus, LTIP Amounts or
other additional incentives or awards earned by the
Participant.
|
1.16
|
“Committee” shall mean
the committee described in
Article 13.
|
1.17
|
“Company” shall mean
HEICO Corporation, a Florida corporation, and any successor to all or
substantially all of the Company’s assets or
business.
|
1.18
|
“Company Contribution
Amount” shall mean, for any one Fiscal Year, the amount determined
in accordance with Section 3.5.
|
1.19
|
“Company Matching Amount”
shall mean, for any one Plan Year, the amount determined in accordance
with Section 3.6.
|
1.20
|
“Death Benefit” shall
mean the benefit set forth in
Article 9.
|
1.21
|
“Director” shall mean any
member of the board of directors of any
Employer.
|
1.22
|
“Director Fees” shall
mean the annual fees earned by a Director from any Employer, including
retainer fees and meetings fees, as compensation for serving on the board
of directors.
|
1.23
|
“Disability” or “Disabled” shall mean
that a Participant is (i) unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than 12 months, or (ii) by reason
of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous
period of not less than 12 months, receiving income replacement benefits
for a period of not less than 3 months under an accident or health plan
covering employees of the Participant’s Employer. For purposes
of this Plan, a Participant shall be deemed Disabled if determined to be
totally disabled by the Social Security Administration, or if determined
to be disabled in accordance with the applicable disability insurance
program of such Participant’s Employer, provided that the definition of
“disability” applied under such disability insurance program complies with
the requirements in the preceding
sentence.
|
1.24
|
“Disability Benefit”
shall mean the benefit set forth in
Article 8.
|
1.25
|
“Election Form” shall
mean the form, which may be in electronic format, established from time to
time by the Committee that a Participant completes, signs and returns to
the Committee to make an election under the
Plan.
|
1.26
|
“Employee” shall mean a
person who is an employee of any
Employer.
|
1.27
|
“Employer(s)” shall mean
the Company and/or any of its subsidiaries (now in existence or hereafter
formed or acquired) that have been selected by the Board to participate in
the Plan and have adopted the Plan as a
sponsor.
|
1.28
|
“ERISA” shall mean the
Employee Retirement Income Security Act of 1974, as it may be amended from
time to time.
|
1.29
|
“First Plan Year” shall
mean the period beginning October 1, 2006 and ending October 31,
2006.
|
1.30
|
“Fiscal Year” shall mean
the taxable year of the Employer, beginning on November 1 of each year and
continuing through October 31 of the following
year.
|
1.31
|
“Fiscal Year
Compensation” shall mean compensation relating to a period of
service co-extensive with one or more consecutive Fiscal Years, of which
no amount is paid or payable
|
|
during
the Fiscal Year or Years constituting the period of service, or which
otherwise qualifies as “fiscal year compensation” under Treasury
Regulations Section 1.409A-2(a)(6).
|
1.32
|
“401(k) Plan” shall mean,
with respect to an Employer, a plan qualified under Code Section 401(a)
that contains a cash or deferral arrangement described in Code Section
401(k), adopted by the Employer, as it may be amended from time to time,
or any successor thereto.
|
1.33
|
“LTIP Amounts” shall mean
any portion of the compensation that is earned by a Participant as an
Employee under any Employer’s long-term incentive plan or any other
long-term incentive arrangement designated by the
Committee.
|
1.34
|
“Participant” shall mean
any Employee or Director (i) who is selected to participate in the
Plan, (ii) who submits an executed Plan Agreement, Election Form and
Beneficiary Designation Form, which are accepted by the Committee, and
(iii) whose Plan Agreement has not
terminated.
|
1.35
|
“Plan” shall mean the
HEICO Leadership Compensation Plan, which shall be evidenced by this
instrument and by each Plan Agreement, as they may be amended from time to
time.
|
1.36
|
“Plan Agreement” shall
mean a written agreement, as may be amended from time to time, which is
entered into by and between an Employer and a Participant. Each
Plan Agreement executed by a Participant and the Participant’s Employer
shall provide for the entire benefit to which such Participant is entitled
under the Plan; should there be more than one Plan Agreement, the Plan
Agreement bearing the latest date of acceptance by the Employer shall
supersede all previous Plan Agreements in their entirety and shall govern
such entitlement. The terms of any Plan Agreement may be
different for any Participant, and any Plan Agreement may provide
additional benefits not set forth in the Plan or limit the benefits
otherwise provided under the Plan; provided, however, that any such
additional benefits or benefit limitations must be agreed to by both the
Employer and the Participant.
|
1.37
|
“Plan Year” shall, except
for the First Plan Year, mean the period beginning on January 1 of each
year and continuing through December 31 of the same
year.
|
1.38
|
“Retirement”, “Retire(s)” or “Retired” shall mean,
with respect to an Employee, A Separation from Service with all Employers
for any reason other than death or Disability, as determined in accordance
with Code Section 409A and related Treasury guidance and Regulations, on
or after the earlier of the attainment of (a) age sixty-five (65) or (b)
age fifty-five (55) with ten (10) Years of Service; and shall mean with
respect to a Director who is not an Employee, Separation from Service as a
Director. If a Participant is both an Employee and a Director,
and does not have benefits under this Plan (or a plan required
to be aggregated with this Plan) for services both as an
Employee and a Director, the services provided as a Director are not taken
into consideration in determining if the Participant has a Separation from
Service as an Employee hereunder and the services as an Employee are not
taken into consideration for purposes of determining if the Director has
as Separation of Service as a
Director.
|
1.39
|
“Retirement Benefit”
shall mean the benefit set forth in
Article 6.
|
1.40
|
“Scheduled Distribution”
shall mean the distribution set forth in Section
4.1.
|
1.41
|
“Separation from Service”
shall have the meaning set forth in Code Section 409A(a)(2) and the
regulations issued pursuant
thereto.
|
1.42
|
“Stock” shall mean HEICO
Corporation common stock, $.01 par value, or any other equity securities
designated by the Committee.
|
1.43
|
“Terminate the Plan”,
“Termination of the
Plan” shall mean a determination by an Employer’s board of
directors that (i) all of its Participants shall no longer be eligible to
participate in the Plan, (ii) no new deferral elections for such
Participants shall be permitted, and (iii) such Participants shall no
longer be eligible to be credited with any contributions under this
Plan.
|
1.44
|
“Termination Benefit”
shall mean the benefit set forth in
Article 7.
|
1.45
|
“Termination of
Employment” shall mean the Separation from Service, voluntarily or
involuntarily, for any reason other than Retirement, Disability or death,
as determined in accordance with Code Section 409A and related Treasury
guidance and Regulations. If a Participant is both an Employee
and a Director and does not have benefits under this Plan (or a plan
required to be aggregated with this Plan) for services both as an Employee
and a Director, the services provided as a Director are not taken into
consideration in determining if the Participant has a Termination of
Employment as an Employee hereunder and the services as an Employee are
not taken into consideration for purposes of determining if the Director
has as Termination of Employment as a
Director.
|
1.46
|
“Trust” shall mean one or
more trusts established by the Company in accordance with
Article 16.
|
1.47
|
“Unforeseeable Emergency”
shall mean a severe financial hardship of the Participant resulting from
(i) an illness or accident of the Participant, the Participant’s spouse,
or the Participant’s dependent (as defined in Code Section 152(a)), (ii) a
loss of the Participant’s property due to casualty, or (iii) such other
similar extraordinary and unforeseeable circumstances arising as a result
of events beyond the control of the Participant, all as determined in the
sole discretion of the Committee.
|
1.48
|
“Years of Service” shall
mean the total number of full years in which a Participant has been
employed by one or more Employers. For purposes of this
definition, a year of employment shall be a 365 day period (or 366 day
period in the case of a leap year) that, for the first year of employment,
commences on the Employee’s date of hiring and that, for any subsequent
year, commences on an anniversary of that hiring date. The
Committee shall make a determination as to whether any partial year of
employment shall be counted as a Year of
Service.
|
2.1
|
Selection
by Committee. Participation in the Plan shall be limited
to Directors and, as determined by the Committee in its sole discretion, a
select group of management or highly compensated
Employees. From that group, the Committee shall select, in its
sole discretion, those individuals who may actually participate in this
Plan.
|
2.2
|
Enrollment
and Eligibility Requirements; Commencement of
Participation.
|
|
(a)
|
As
a condition to participation, each Director or selected Employee who is
eligible to participate in the Plan effective as of the first day of a
Plan Year shall complete, execute and return to the Committee a Plan
Agreement, an Election Form and a Beneficiary Designation Form, prior to
the first day of such Plan Year, or such other earlier deadline as may be
established by the Committee in its sole discretion. In
addition, the Committee shall establish from time to time such other
enrollment requirements as it determines, in its sole discretion, are
necessary. With respect to the First Plan Year, each Director
or selected Employee must complete these requirements within thirty (30)
days of the date on which such Director or Employee becomes eligible to
participate in the Plan. Except as provided in Section 2.2(b)
below, with respect to any Plan Year after the First Plan Year, each
Director or selected Employee must complete these requirements prior to
the first day of such Plan Year, or such other earlier deadline as may be
established by the Committee in its sole discretion.
|
|
(b)
|
To
the extent permissible under Code Section 409A and related Treasury
guidance or Regulations, a Director or selected Employee who first becomes
eligible to participate in this Plan after the first day of a Plan Year
must complete, execute and return to the Committee a Plan Agreement, an
Election Form, and a Beneficiary Designation Form within thirty (30) days
after he or she first becomes eligible to participate in the Plan, or
within such other earlier deadline as may be established by the Committee,
in its sole discretion, in order to participate for that Plan
Year. In such event, such person’s participation in this Plan
shall not commence earlier than the date determined by the Committee
pursuant to Section 2.2(c) and such person shall not be permitted to defer
under this Plan any portion of his or her Base Salary, Bonus, LTIP
Amounts, Commissions and/or Director Fees that are paid with respect to
services performed prior to his or her participation commencement date,
except to the extent permissible under Code Section 409A and related
Treasury guidance or Regulations.
|
|
(c)
|
Each
Director or selected Employee who is eligible to participate in the Plan
shall commence participation in the Plan on the date that the Committee
determines, in its sole discretion, that the Director or Employee has met
all enrollment requirements set forth in this Plan and required by the
Committee, including returning all required documents to the Committee
within the specified time period. Notwithstanding the
foregoing, the Committee shall process such Participant’s deferral
election as soon as administratively practicable after such deferral
election is submitted to and accepted by the
Committee.
|
|
(d)
|
If
a Director or an Employee fails to meet all requirements contained in this
Section 2.2 within the period required, that Director or Employee
shall not be eligible to participate in the Plan during such Plan
Year.
|
3.1
|
Minimum
Deferrals.
|
|
(a)
|
Annual
Deferral Amount. For each Plan Year, or Fiscal Year, as
applicable depending upon the service period to which such compensation
relates, a Participant may elect to defer, as his or her Annual Deferral
Amount, Base Salary, Bonus, Commissions, LTIP Amounts and/or Director Fees
in the following minimum amounts for each deferral
elected:
|
Deferral
|
Minimum
Amount
|
Base
Salary, Bonus, Commissions and/or LTIP Amounts
|
$5,000
aggregate
|
Director
Fees
|
$0
|
|
(b)
|
Short
Plan Year. Notwithstanding the foregoing, if a
Participant first becomes a Participant after the first day of a Plan Year
or Fiscal Year, as applicable depending upon the service period to which
such compensation relates, the minimum Annual Deferral Amount shall be an
amount equal to the minimum set forth above, multiplied by a fraction, the
numerator of which is the number of complete days remaining in the service
period to which such compensation relates and the denominator of which is
the total number of days in the service period to which such compensation
relates.
|
3.2
|
Maximum
Deferral.
|
|
(a)
|
Annual
Deferral Amount. For each Plan Year, or Fiscal Year, as
applicable depending upon the service period to which such compensation
relates, a Participant may elect to defer, as his or her Annual Deferral
Amount, Base Salary, Bonus, Commissions, LTIP Amounts and/or Director Fees
up to the following maximum percentages for each deferral
elected:
|
Deferral
|
Maximum
Percentage
|
Base
Salary
|
100%
|
Bonus
|
100%
|
Commissions
|
100%
|
LTIP
Amounts
|
100%
|
Director
Fees
|
100%
|
|
(b)
|
Short
Plan Year. Notwithstanding the foregoing, if a
Participant first becomes a Participant after the first day of a Plan
Year, or Fiscal Year, as applicable depending upon the service period to
which such compensation relates, the maximum Annual Deferral Amount shall
be limited to the amount of compensation not yet earned by the Participant
as of the date the Participant submits a Plan Agreement and Election Form
to the Committee for acceptance, except to the extent permissible under
Code Section 409A and related Treasury guidance or
Regulations. For compensation that is earned based upon a
specified performance period, the Participant’s deferral election will
apply to the portion of such compensation that is equal to (i) the total
amount of compensation for the performance period, multiplied by (ii) a
fraction, the numerator of which is the number of days remaining in the
service period after the Participant’s deferral election is made, and the
denominator of which is the total number of days in the performance
period.
|
3.3
|
Election
to Defer; Effect of Election
Form.
|
|
(a)
|
Initial
Participation. In connection with a Participant’s
commencement of participation in the Plan, the Participant shall make an
irrevocable election to defer Base Salary, Bonus, Commissions, Director
Fees and LTIP Amounts for the Plan Year, or Fiscal Year, as applicable
depending upon the service period to which such compensation relates, in
which the Participant commences participation in the Plan, along with such
other elections as the Committee deems necessary or desirable under the
Plan. For these elections to be valid, the Election Form must
be completed and signed by the Participant, timely delivered to the
Committee (in accordance with Section 2.2 above) and accepted by the
Committee.
|
|
(b)
|
Deferral
Elections. A Participant may elect to defer Base Salary,
Bonus, Commissions, Director Fees, and LTIP Amounts (but no other form of
compensation), and make such other elections as the Committee deems
necessary or desirable under the Plan by timely delivering a new Election
Form to the Committee, in accordance with its rules and procedures, on or
before each October 31. The Participant’s deferral elections
would apply to (i) deferrable compensation that qualifies as Fiscal Year
Compensation earned for services rendered during the Fiscal Year that
begins on the November 1 immediately following the date on which the
election is made, and (ii) Base Salary and other deferrable compensation
that does not qualify as Fiscal Year Compensation that is earned for
services rendered during one or more Plan Years following the calendar
year in which the election is made. For purposes of this
Section 3.3(b), the timing of the deferral election with respect to
deferrable compensation that does not qualify as Fiscal
Year
|
|
Compensation
because it relates to a period of service of less than one taxable year of
the Employer, must be made on or before each October 31 of the calendar
year immediately preceding the Plan Year in which the service period
begins for compensation being
deferred.
|
|
(c)
|
Performance-Based
Compensation.
Notwithstanding the foregoing, the Committee may, in its sole
discretion, determine that an irrevocable deferral election pertaining to
“performance-based compensation” based on services performed over a period
of at least twelve (12) months, may be made by timely delivering an
Election Form to the Committee, in accordance with its rules and
procedures, no later than six (6) months before the end of the performance
service period. “Performance-based compensation” shall be
compensation, the payment or amount of which is contingent on
pre-established organizational or individual performance criteria, which
satisfies the requirements of Code Section 409A and related Treasury
guidance or Regulations. In order to be eligible to make a
deferral election for performance-based compensation, a Participant must
perform services continuously from a date no later than the date upon
which the performance criteria for such compensation are established
through the date upon which the Participant makes a deferral election for
such compensation. In no event shall an election to defer
performance-based compensation be permitted after such compensation has
become both substantially certain to be paid and readily
ascertainable.
|
|
(d)
|
Compensation
Subject to Risk of Forfeiture. With respect to
compensation (i) to which a Participant has a legally binding right to
payment in a subsequent year, and (ii) that is subject to a forfeiture
condition requiring the Participant’s continued services for a period of
at least twelve (12) months from the date the Participant obtains the
legally binding right, the Committee may, in its sole discretion,
determine that an irrevocable deferral election for such compensation may
be made by timely delivering an Election Form to the Committee in
accordance with its rules and procedures, no later than the 30th
day after the Participant obtains the legally binding right to the
compensation, provided that the election is made at least twelve (12)
months in advance of the earliest date at which the forfeiture condition
could lapse.
|
3.4
|
Withholding
and Crediting of Annual Deferral Amounts. For each Plan
Year, the Base Salary portion of the Annual Deferral Amount shall be
withheld from each regularly scheduled Base Salary payroll in equal
amounts, as adjusted from time to time for increases and
decreases
|
|
in
Base Salary. The Bonus, Commissions, LTIP Amounts and/or
Director Fees portion of the Annual Deferral Amount shall be withheld at
the time the Bonus, Commissions, LTIP Amounts or Director Fees are or
otherwise would be paid to the Participant, whether or not this occurs
during the Plan Year itself. Annual Deferral Amounts shall be
credited to the Participant’s Annual Account for such Plan Year at the
time such amounts would otherwise have been paid to the
Participant.
|
3.5
|
Company
Contribution Amount.
|
|
(a)
|
For
each Fiscal Year, an Employer may be required to credit amounts to a
Participant’s Annual Account in accordance with employment or other
agreements entered into between the Participant and the Employer, which
amounts shall be part of the Participant’s Company Contribution Amount for
that Fiscal Year. Such amounts shall be credited to the
Participant’s Annual Account for the applicable Fiscal Year on the date or
dates prescribed by such
agreements.
|
|
(b)
|
For
each Fiscal Year, an Employer, in its sole discretion, may, but is not
required to, credit any amount it desires to any Participant’s Annual
Account under this Plan, which amount shall be part of the Participant’s
Company Contribution Amount for that Fiscal Year. The amount so
credited to a Participant may be smaller or larger than the amount
credited to any other Participant, and the amount credited to any
Participant for a Fiscal Year may be zero, even though one or more other
Participants receive a Company Contribution Amount for that Fiscal
Year. The Company Contribution Amount described in this Section
3.5(b), if any, shall be credited to the Participant’s Annual Account for
the applicable Fiscal Year on a date or dates to be determined by the
Committee, in its sole discretion.
|
3.6
|
Company
Matching Amount. A Participant’s Company Matching Amount
for any Plan Year shall be equal to 50% of the first 6% of Base Salary
deferred for such Plan Year, unless otherwise determined by the Committee
in its sole discretion. The Participant’s Company Matching
Amount, if any, shall be credited to the Participant’s Annual Account for
the applicable Plan Year on a date or dates to be determined by the
Committee, in its sole discretion.
|
3.7
|
Crediting
of Amounts after Benefit Distribution. Notwithstanding
any provision in this Plan to the contrary, should the complete
distribution of a Participant’s vested Account Balance occur prior to the
date on which any portion of (i) the Annual Deferral Amount that a
Participant has elected to defer in accordance with Section 3.3, (ii) the
Company Contribution Amount, or (iii) the Company Matching Amount, would
otherwise be credited to the Participant’s Account Balance, such amounts
shall not be credited to the Participant’s Account Balance, and
distributed in accordance with the form and time of distribution that is
applicable to the amount so credited (and to the extent the time of
distribution has occurred, within 60 days of the date of such
crediting).
|
3.8
|
Vesting.
|
|
(a)
|
A
Participant shall at all times be 100% vested in the portion of his or her
Account Balance attributable to his or her deferrals of Base Salary,
Bonus, Commissions, LTIP Amounts and Director’s Fees as adjusted for
amounts credited or debited on such amounts (pursuant to Section
3.9).
|
|
(b)
|
A
Participant shall be vested in the portion of his or her Account Balance
attributable to any Company Contribution Amount, adjusted for amounts
credited or debited on such amounts, in accordance with vesting
schedule(s) set forth below based on the number of full Fiscal Years
following the Fiscal Year to which the contribution
relates. However, on or prior to the date on which a
Participant is awarded a Company Contribution Amount for a Fiscal Year,
the Committee, in its sole discretion, may designate a different vesting
schedule in lieu of the schedule described below that will apply to such
Company Contribution Amount. Unless otherwise declared by the
Committee, a new vesting schedule shall apply to each Company Contribution
Amount.
|
Fiscal
Years Following Year to which Contribution Relates
|
Vested
Percentage
|
Less
than 1 year
|
0%
|
1
year or more, but less than 2
|
25%
|
2
years or more, but less than 3
|
50%
|
3
years or more, but less than 4
|
75%
|
4
years or more
|
100%
|
|
(c)
|
A
Participant shall be vested in the portion of his or her Account Balance
attributable to any Company Matching Amounts, adjusted for amounts
credited or debited on such amounts (pursuant to Section 3.9), only to the
extent that the Participant would be vested in such amounts, if any, under
the provisions of the 401(k) Plan applicable to the vesting of matching
contributions, as determined by the Committee in its sole
discretion.
|
|
(d)
|
Notwithstanding
anything to the contrary contained in this Section 3.8, in the event of a
Change in Control, or upon a Participant’s Retirement, death while
employed by an Employer, or Disability, any amounts that are not vested in
accordance with Sections 3.8(b) or 3.8(c) above, shall immediately become
100% vested (if it is not already vested in accordance with the above
vesting schedules).
|
|
(e)
|
Notwithstanding
subsection 3.8(d) above, the vesting schedules described in Sections
3.8(b) and 3.8(c) shall not be accelerated upon a Change in Control to the
extent that the Committee determines that such acceleration would cause
the deduction limitations of Section 280G of the Code to become effective,
but only if and to the extent that not accelerating the vesting would
result in the net after-tax value (taking into account any tax imposed by
Code Section 4999) of any compensation that is payable by the Company to
the Participant that is treated as a “parachute payment” under Code
Section 280G being greater by not accelerating such vesting than the
net-after tax value of that compensation would be if the vesting schedule
was accelerated. In the event of such
a
|
|
determination,
the Participant may request independent verification of the Committee’s
calculations with respect to the application of Section
280G. In such case, the Committee must provide to the
Participant within ninety (90) days of such a request an opinion from a
nationally recognized accounting firm selected by the Participant (the
“Accounting Firm”). The opinion shall state the Accounting
Firm’s opinion that any limitation in the vested percentage hereunder is
necessary to avoid the limits of Section 280G and contain supporting
calculations. The cost of such opinion shall be paid for by the
Company.
|
|
(f)
|
Section
3.8(e) shall not prevent the acceleration of the vesting schedules
described in Sections 3.8(b) and 3.8(c) if such Participant is entitled to
a “gross-up” payment, to eliminate the effect of the Code section 4999
excise tax, pursuant to his or her employment agreement or other agreement
entered into between such Participant and the
Employer.
|
3.9
|
Crediting/Debiting
of Account Balances. In accordance with, and subject to,
the rules and procedures that are established from time to time by the
Committee, in its sole discretion, amounts shall be credited or debited to
a Participant’s Account Balance in accordance with the following
rules:
|
|
(a)
|
Measurement
Funds. Subject to the restrictions found in Section
3.9(d) below, the Participant may elect one or more of the measurement
funds selected by the Committee, in its sole discretion, which are based
on certain mutual funds (the “Measurement Funds”), for the purpose of
crediting or debiting additional amounts to his or her Account
Balance. As necessary, the Committee may, in its sole
discretion, discontinue, substitute or add a Measurement
Fund. Each such action will take effect as of the first day of
the first calendar quarter that begins at least thirty (30) days after the
day on which the Committee gives Participants advance written notice of
such change.
|
|
(b)
|
Election
of Measurement Funds. Subject to the restrictions found
in Section 3.9(d) below, a
Participant, in connection with his or her deferral election in accordance
with Sections 3.3(a) and 3.3(b) above, shall elect, on the Election Form,
one or more Measurement Fund(s) (as described in Section 3.9(a) above) to
be used to determine the amounts to be credited or debited to his or her
Account Balance. If a Participant does not elect any of the
Measurement Funds as described in the previous sentence, the Participant’s
Account Balance shall automatically be allocated into the lowest-risk
Measurement Fund, as determined by the Committee, in its sole
discretion. Subject to the restrictions found in Section
3.9(d) below, the
Participant may (but is not required to) elect, by submitting an Election
Form to the Committee that is accepted by the Committee, to add or delete
one or more Measurement Fund(s) to be used to determine the amounts to be
credited or debited to his or her Account Balance, or to change the
portion of his or her Account Balance allocated to each previously or
newly elected Measurement Fund. If an election is made in
accordance with the previous sentence, it shall apply as of the first
business day deemed reasonably practicable by the Committee, in its sole
discretion, and shall continue thereafter for each subsequent day in which
the Participant participates in the Plan, unless changed in accordance
with the previous
|
|
sentence. Notwithstanding
the foregoing, the Committee, in its sole discretion, may impose
limitations on the frequency with which one or more of the Measurement
Funds elected in accordance with this Section 3.9(b) may be added or
deleted by such Participant; furthermore, the Committee, in its sole
discretion, may impose limitations on the frequency with which the
Participant may change the portion of his or her Account Balance allocated
to each previously or newly elected Measurement
Fund.
|
|
(c)
|
Proportionate
Allocation. In making any election described in Section
3.9(b) above, the Participant shall specify on the Election Form, in
increments of one percent (1%), the percentage of his or her Account
Balance or Measurement Fund, as applicable, to be
allocated/reallocated.
|
|
(d)
|
HEICO
Corporation Stock Unit Fund.
|
|
(i)
|
The
Participant’s Director Fees, if any, that would otherwise be payable in
Stock and are deferred under this Plan will be automatically and
irrevocably allocated to the HEICO Corporation Stock Unit Fund Measurement
Fund. Participants may not select any other Measurement Fund to
be used to determine the amounts to be credited or debited to the portion
of their Account Balance attributable to such Director Fees. Furthermore, no
other portion of the Participant’s Account Balance can be either initially
allocated or re-allocated to the HEICO Corporation Stock Unit
Fund. Amounts allocated to the HEICO Corporation Stock Unit
Fund shall only be distributable in actual shares of
Stock.
|
|
(ii)
|
Any
cash dividends that would have been payable on the Stock credited to a
Participant’s Account Balance shall be credited to the Participant’s
Account Balance. The portion of the Participant’s Account
Balance that is attributable to the cash dividends shall automatically be
allocated into the lowest-risk Measurement Fund, as determined by the
Committee, in its sole discretion.
|
|
(iii)
|
Any
stock dividends or other non-cash dividends that would have been payable
on the Stock credited to a Participant’s Account Balance shall be credited
to the Participant’s Account Balance in the form of additional shares of
Stock and shall automatically and irrevocably be deemed to be re-invested
in the HEICO Corporation Stock Unit Fund until such amounts are
distributed to the Participant. The number of shares credited
to the Participant for a particular stock dividend shall be equal to (a)
the number of shares of Stock credited to the Participant’s Account
Balance as of the payment date for such dividend in respect of each share
of Stock, multiplied by (b) the number of additional or fractional shares
of Stock actually paid as a dividend in respect of each share of
Stock. The number of shares credited to the Participant for a
particular stock dividend or other non-cash dividend shall be equal to (a)
the number of shares of Stock credited to the Participant’s Account
Balance as of the payment date for such dividend in respect of each share
of Stock, multiplied by (b) the fair market value of the
dividend,
|
|
(iv)
|
The
number of shares of Stock credited to the Participant’s Account Balance
shall be adjusted by the Committee, in its sole discretion, to prevent
dilution or enlargement of Participants’ rights with respect to the
portion of his or her Account Balance allocated to the HEICO Corporation
Stock Unit Fund in the event of
any reorganization, reclassification, stock split, or other unusual
corporate transaction or event which affects the value of the Stock,
provided that any such adjustment shall be made taking into account any
crediting of shares of Stock to the Participant under Section
3.9.
|
|
(v)
|
For
purposes of this Section 3.9(d), the fair market value of the Stock shall
be determined by the Committee in its sole
discretion.
|
|
(e)
|
Crediting
or Debiting Method. The performance of each Measurement
Fund (either positive or negative) will be determined on a daily basis
based on the manner in which such Participant’s Account Balance has been
hypothetically allocated among the Measurement Funds by the
Participant.
|
|
(f)
|
No
Actual Investment. Notwithstanding any other provision
of this Plan that may be interpreted to the contrary, the Measurement
Funds are to be used for measurement purposes only, and a Participant’s
election of any such Measurement Fund, the allocation of his or her
Account Balance thereto, the calculation of additional amounts and the
crediting or debiting of such amounts to a Participant’s Account Balance
shall not be considered or construed in any manner as an actual investment
of his or her Account Balance in any such Measurement Fund. In
the event that the Company or the Trustee (as that term is defined in the
Trust), in its own discretion, decides to invest funds in any or all of
the investments on which the Measurement Funds are based, no Participant
shall have any rights in or to such investments
themselves. Without limiting the foregoing, a Participant’s
Account Balance shall at all times be a bookkeeping entry only and shall
not represent any investment made on his or her behalf by the Company or
the Trust; the Participant shall at all times remain an unsecured creditor
of the Employer obligated to pay the Participant's benefit as determined
in Section 17.3 hereof, to the extent of such
obligation.
|
3.10
|
FICA
and Other Taxes.
|
|
(a)
|
Annual
Deferral Amounts. For each Plan Year in which an Annual
Deferral Amount is being withheld from a Participant, the Participant’s
Employer(s) shall withhold from that portion of the Participant’s Base
Salary, Bonus, Commissions and/or LTIP Amounts that is not being deferred,
in a manner determined by the Employer(s), the Participant’s share of FICA
and other employment taxes on such Annual Deferral Amount. If
necessary, the Committee may reduce the Annual Deferral Amount for amounts
required to be withheld
|
|
and
described in Treasury Regulations Section 1.409A-3(j)(4)(vi) in order to
comply with this Section 3.10.
|
|
(b)
|
Company
Matching Amounts and Company Contribution Amounts. When
a Participant becomes vested in a portion of his or her Account Balance
attributable to any Company Matching Amounts and/or Company Contribution
Amounts, the Participant’s Employer(s) shall withhold from that portion of
the Participant’s Base Salary, Bonus, Commissions and/or LTIP Amounts that
is not deferred, in a manner determined by the Employer(s), the
Participant’s share of FICA and other employment taxes on such
amounts. If necessary, the Committee may reduce the vested
portion of the Participant’s Company Matching Amount or Company
Contribution Amount for such amounts attributable to employment taxes
required to be withheld or that otherwise may be withheld as described in
Treasury Regulations Section 1.409A-3(j)(4)(vi), in order to comply with
this Section 3.10.
|
|
(c)
|
Distributions. The
Participant’s Employer(s), or the trustee of the Trust, shall withhold
from any payments made to a Participant under this Plan all Federal, state
and local income, employment and other taxes required to be withheld by
the Employer(s), or the trustee of the Trust, in connection with such
payments, in amounts and in a manner to be determined in the sole
discretion of the Employer(s) and the trustee of the
Trust.
|
4.1
|
Scheduled
Distribution. In connection with each election to defer
an Annual Deferral Amount, a Participant may irrevocably elect to receive
a Scheduled Distribution, in the form of a lump sum payment, from the Plan
with respect to all or a portion of the Annual Deferral
Amount. The Scheduled Distribution shall be a lump sum payment
in an amount that is equal to the portion of the Annual Deferral Amount
the Participant elected to have distributed as a Scheduled Distribution,
adjusted for amounts credited or debited in the manner provided in
Section 3.9 above on that amount, calculated as of the close of
business on or around the date on which the Scheduled Distribution becomes
payable, as determined by the Committee in its sole
discretion. Subject to the other terms and conditions of this
Plan, each Scheduled Distribution elected shall be paid out during a sixty
(60) day period commencing immediately after the first day of any Plan
Year designated by the Participant (the “Scheduled Distribution
Date”). The Plan Year designated by the Participant must be at
least three (3) Plan Years after the end of the Plan Year to which the
Participant’s deferral election described in Section 3.3 relates, unless
otherwise provided on an Election Form approved by the Committee in its
sole discretion. By way of example, if a Scheduled Distribution
is elected for Annual Deferral Amounts that are earned in the Plan Year
commencing January 1, 2007, the earliest Scheduled Distribution Date
that may be designated by a Participant would be January 1, 2011, and the
Scheduled Distribution would become payable during the sixty (60) day
period commencing immediately after such Scheduled Distribution
Date.
|
4.2
|
Postponing
Scheduled Distributions. A Participant may elect to postpone a
Scheduled Distribution described in Section 4.1 above, and have such
amount paid out during a sixty (60) day period commencing immediately
after an allowable alternative distribution date designated by the
Participant in accordance with this Section 4.2. In order to
make this election, the Participant must submit a new Scheduled
Distribution Election Form to the Committee in accordance with the
following criteria:
|
|
(a)
|
Such
Scheduled Distribution Election Form must be submitted to and accepted by
the Committee in its sole discretion at least twelve (12) months prior to
the Participant’s previously designated Scheduled
Distribution Date;
|
|
(b)
|
The
new Scheduled Distribution Date selected by the Participant must be the
first day of a Plan Year, and must be at least five years after the previously designated Scheduled
Distribution Date; and
|
|
(c)
|
The
election of the new Scheduled Distribution Date shall have no effect until
at least twelve (12) months after the date on which the election is
made.
|
4.3
|
Other
Benefits Take Precedence Over Scheduled
Distributions. Should a Benefit Distribution Date occur
that triggers a benefit under Articles 5, 6, 7, 8, or 9, any Annual
Deferral Amount that is subject to a Scheduled Distribution election under
Section 4.1 or 4.2 shall not be paid in accordance with Section 4.1, but
shall be paid in accordance with the other applicable Article.
Notwithstanding the foregoing, the Committee shall interpret this Section
4.3 in a manner that is consistent with Code Section 409A and related
Treasury guidance and Regulations.
|
4.4
|
Unforeseeable
Emergencies.
|
|
(a)
|
If
the Participant experiences an Unforeseeable Emergency, the Participant
may petition the Committee to receive a partial or full payout from the
Plan, subject to the provisions set forth
below.
|
|
(b)
|
The
payout, if any, from the Plan shall not exceed the lesser of (i) the
Participant’s vested Account Balance, calculated as of the close of
business on or around the date on which the amount becomes payable, as
determined by the Committee in its sole discretion, or (ii) the amount
necessary to satisfy the Unforeseeable Emergency, plus amounts necessary
to pay Federal, state, or local income taxes or penalties reasonably
anticipated as a result of the distribution. Notwithstanding
the foregoing, a Participant may not receive a payout from the Plan to the
extent that the Unforeseeable Emergency is or may be relieved (A) through
reimbursement or compensation by insurance or otherwise, (B) by
liquidation of the Participant’s assets, to the extent the liquidation of
such assets would not itself cause severe financial hardship or (C) by
cessation of deferrals under this
Plan.
|
|
(c)
|
If
the Committee, in its sole discretion, approves a Participant’s petition
for payout from the Plan, the Participant shall receive a payout from the
Plan within sixty (60) days of
the
|
|
date
of such approval, and the Participant’s deferrals under the Plan shall be
terminated as of the date of such
approval.
|
|
(d)
|
In
addition, a Participant’s deferral elections under this Plan shall be
terminated to the extent the Committee determines, in its sole discretion,
that termination of such Participant’s deferral elections is required
pursuant to Treas. Reg. §1.401(k)-1(d)(3) for the Participant to obtain a
hardship distribution from an Employer’s 401(k) Plan. If the
Committee determines, in its sole discretion, that a termination of the
Participant’s deferrals is required in accordance with the preceding
sentence, the Participant’s deferrals shall be terminated as soon as
administratively practicable following the date on which such
determination is made, and the Participant shall not be entitled to make a
new deferral election until such time as the Committee
determines.
|
|
(e)
|
Notwithstanding
the foregoing, the Committee shall interpret all provisions relating to a
payout and/or termination of deferrals under this Section 4.4 in a manner
that is consistent with Code Section 409A and related Treasury guidance
and Regulations.
|
5.1
|
Change
in Control Benefit. A Participant, in connection with
his or her commencement of participation in the Plan, shall irrevocably
elect on an Election Form whether to (i) receive a Change in Control
Benefit upon the occurrence of a Change in Control, which shall be equal
to the Participant’s vested Account Balance, calculated as of the close of
business on or around the Participant’s Benefit Distribution Date, as
determined by the Committee in its sole discretion, or (ii) to have his or
her Account Balance remain in the Plan upon the occurrence of a Change in
Control and to have his or her Account Balance remain subject to the terms
and conditions of the Plan. If a Participant does not make any
election with respect to the payment of the Change in Control Benefit,
then such Participant’s Account Balance shall remain in the Plan upon a
Change in Control and shall be subject to the terms and conditions of the
Plan.
|
5.2
|
Payment
of Change in Control Benefit. The Change in Control
Benefit, if any, shall be paid to the Participant in a lump sum no later
than sixty (60) days after the Participant’s Benefit Distribution
Date. Notwithstanding the foregoing, the Committee shall
interpret all provisions in this Plan relating to a Change in Control
Benefit in a manner that is consistent with Code Section 409A and related
Treasury guidance and Regulations.
|
6.1
|
Retirement
Benefit. A Participant who Retires shall receive, as a
Retirement Benefit, his or her vested Account Balance, calculated as of
the close of business on or around the Participant’s Benefit Distribution
Date, as determined by the Committee in its sole
discretion.
|
6.2
|
Payment
of Retirement Benefit.
|
|
(a)
|
In
connection with a Participant’s election to defer an Annual Deferral
Amount, the Participant shall elect the form in which his or her Annual
Account for such Plan Year will be paid. The Participant may
elect to receive each Annual Account in the form of a lump sum or pursuant
to an Annual Installment Method of up to fifteen (15) years. If
a Participant does not make any election with respect to the payment of an
Annual Account, then the Participant shall be deemed to have elected to
receive such Annual Account as a lump
sum.
|
|
(b)
|
A
Participant may change the form of payment for an Annual Account by
submitting an Election Form to the Committee in accordance with the
following criteria:
|
|
(i)
|
The
election to modify the form of payment for such Annual Account shall have
no effect until at least twelve (12) months after the date on which the
election is made; and
|
|
(ii)
|
The
first payment related to such Annual Account shall be delayed at least
five (5) years from the originally scheduled Benefit Distribution Date for
such Annual Account, as described in Section
1.8(a).
|
|
(c)
|
The
lump sum payment shall be made, or installment payments shall commence, no
later than sixty (60) days after the Benefit Distribution
Date. Remaining installments, if any, shall continue in
accordance with the Participant’s election for each Annual Account and
shall be paid no later than sixty (60) days after each anniversary of the
Benefit Distribution Date.
|
7.1
|
Termination
Benefit. A Participant who
experiences a Termination of Employment shall receive, as a Termination
Benefit, his or her vested Account Balance, calculated as of the close of
business on or around the Participant’s Benefit Distribution Date, as
determined by the Committee in its sole
discretion.
|
7.2
|
Payment
of Termination Benefit. The
Termination Benefit shall be paid to the Participant in a lump sum payment
no later than sixty (60) days after the Participant’s Benefit Distribution
Date.
|
8.1
|
Disability
Benefit.
Upon a Participant’s Disability, the Participant shall receive a
Disability Benefit, which shall be equal to the Participant’s vested
Account Balance, calculated as of the close of business on or around the
Participant’s Benefit Distribution Date, as selected by the Committee in
its sole discretion.
|
8.2
|
Payment
of Disability Benefit. The Disability
Benefit shall be paid to the Participant in a lump sum payment no later
than sixty (60) days after the Participant’s Benefit Distribution
Date.
|
9.1
|
Death
Benefit. The
Participant’s Beneficiary(ies) shall receive a Death Benefit upon the
Participant’s death which will be equal to the Participant’s vested
Account Balance, calculated as of the close of business on or around the
Participant’s Benefit Distribution Date, as selected by the Committee in
its sole discretion.
|
9.2
|
Payment
of Death Benefit. The
Death Benefit shall be paid to the Participant’s Beneficiary(ies) in a
lump sum payment no later than sixty (60) days after the Participant’s
Benefit Distribution Date.
|
10.1
|
Beneficiary. Each
Participant shall have the right, at any time, to designate his or her
Beneficiary(ies) (both primary as well as contingent) to receive any
benefits payable under the Plan to a beneficiary upon the death of the
Participant. The Beneficiary designated under this Plan may be
the same as or different from the Beneficiary designation under any other
plan of an Employer in which the Participant
participates.
|
10.2
|
Beneficiary
Designation; Change; Spousal Consent. A
Participant shall designate his or her Beneficiary by completing and
signing the Beneficiary Designation Form, and returning it to the
Committee or its designated agent. A Participant shall have the
right to change a Beneficiary by completing, signing and otherwise
complying with the terms of the Beneficiary Designation Form and the
Committee’s rules and procedures, as in effect from time to
time. If the Participant names someone other than his or her
spouse as a Beneficiary, the Committee may, in its sole discretion,
determine that spousal consent is required to be provided in a form
designated by the Committee, executed by such Participant’s spouse and
returned to the Committee. Upon the acceptance by the Committee
of a new Beneficiary Designation Form, all Beneficiary designations
previously filed shall be canceled. The Committee shall be
entitled to rely on the last Beneficiary Designation Form filed by the
Participant and accepted by the Committee prior to his or her
death.
|
10.3
|
Acknowledgment. No
designation or change in designation of a Beneficiary shall be effective
until received and acknowledged in writing by the Committee or its
designated agent.
|
10.4
|
No
Beneficiary Designation. If
a Participant fails to designate a Beneficiary as provided in
Sections 10.1, 10.2 and 10.3 above or, if all designated
Beneficiaries predecease the Participant or die prior to complete
distribution of the Participant’s benefits, then the Participant’s
designated Beneficiary shall be deemed to be his or her surviving
spouse. If the Participant has no surviving spouse, the
benefits remaining under this Plan to be paid to a Beneficiary shall be
payable to the executor or personal representative of the Participant’s
estate.
|
10.5
|
Doubt
as to Beneficiary. If
the Committee has any doubt as to the proper Beneficiary to receive
payments pursuant to this Plan, the Committee shall have the right,
exercisable in its discretion, to cause the Participant’s Employer to
withhold such payments until this matter is resolved to the Committee’s
satisfaction.
|
10.6
|
Discharge
of Obligations. The
payment of benefits under the Plan to a Beneficiary shall fully and
completely discharge all Employers and the Committee from all further
obligations under this Plan with respect to the Participant, and that
Participant’s Plan Agreement shall terminate upon such full payment of
benefits.
|
11.1
|
Paid
Leave of Absence. If
a Participant is authorized by the Participant’s Employer to take a paid
leave of absence from the employment of the Employer, and such leave of
absence does not constitute a Separation from Service, as determined by
the Committee in accordance with Code Section 409A and related Treasury
guidance and Regulations, (i) the Participant shall continue to be
considered eligible for the benefits provided in Articles 4, 5, 6, 7, 8,
or 9 in accordance with the provisions of those Articles, and (ii) the
Annual Deferral Amount shall continue to
be withheld during such paid leave of absence in accordance with
Section 3.3.
|
11.2
|
Unpaid
Leave of Absence. If
a Participant is on unpaid leave of absence from the employment of the
Employer for any reason, and such leave of absence does not constitute a
Separation from Service, as determined by the Committee in accordance with
Code Section 409A and related Treasury guidance and Regulations, such
Participant shall continue to be eligible for the benefits provided in
Articles 4, 5, 6, 7, 8, or 9 in accordance with the provisions of those
Articles.
|
11.3
|
Leaves
Resulting in Separation from Service. In
the event that a Participant’s leave of absence from his or her Employer
constitutes a separation from service, as determined by the Committee in
accordance with Code Section 409A and related Treasury guidance and
Regulations, the Participant’s vested Account Balance shall be distributed
to the Participant in accordance with Article 6 or 7 of this Plan, as
applicable.
|
12.1
|
Termination
of Plan. Although
each Employer anticipates that it will continue the Plan for an indefinite
period of time, there is no guarantee that any Employer will continue the
Plan or will not terminate the Plan at any time in the
future. Accordingly, each Employer reserves the right to
Terminate the Plan. In the event of a Termination of the Plan,
the Measurement Funds available to Participants following the Termination
of the Plan shall be comparable in number and type to those Measurement
Funds available to Participants in the Plan Year preceding the Plan Year
in which the Termination of the Plan is effective. Except as
otherwise provided below, following a
Termination of the Plan, Participant Account Balances shall remain in the
Plan until the Participant becomes eligible for the benefits provided in
Articles 4, 5, 6, 7, 8 or 9 in accordance with the provisions of those
Articles. The Termination
of the Plan shall not adversely affect any Participant or Beneficiary who
has become entitled to the payment of any benefits under the Plan as of
the date of termination. Notwithstanding the foregoing, to the
extent permissible under Code Section 409A and related Treasury guidance
or Regulations, during the thirty (30) days preceding or within twelve
(12) months following a Change in Control, an Employer shall be permitted
to (i) terminate the Plan by action of its board of directors, and (ii)
distribute the vested Account Balances to Participants in a lump sum no
later than twelve (12) months after the Change in Control, provided that
all other substantially similar arrangements sponsored by such Employer
are also terminated and all balances in such arrangements are distributed
within twelve (12) months of the termination of such arrangements. Also
notwithstanding the foregoing, if and to the
extent permissible under Code Section 409A and related Treasury guidance
or Regulations, in the event of Termination of the Plan, the Board may
require that the Account Balances of all Participants and Beneficiaries
(including, without limitation, any remaining benefits payable to
Participants or Beneficiaries receiving distributions in installments at
the time of the termination) be distributed as soon as practicable after
such termination, notwithstanding any elections by Participants or
Beneficiaries with regard to the timing or form in which their benefits
are to be paid.
|
12.2
|
Amendment.
|
|
(a)
|
Any
Employer may, at any time, amend or modify the Plan in whole or in part
with respect to that Employer. Notwithstanding the foregoing,
(i) no amendment or modification shall be effective to decrease the value
of a Participant’s vested Account Balance in existence at the time the
amendment or modification is made, and (ii) no amendment or modification
of this Section 12.2 or Section 13.2 of the Plan shall be
effective.
|
|
(b)
|
Notwithstanding
any provision of the Plan to the contrary, in the event that the Company
determines that any provision of the Plan may cause amounts deferred under
the Plan to become immediately taxable to any Participant under Code
Section 409A and related Treasury guidance or Regulations, the Company may
(i) adopt such amendments to the Plan and appropriate policies and
procedures, including amendments and policies with retroactive effect,
that the Company determines necessary or appropriate to preserve
the
|
|
intended
tax treatment of the Plan benefits provided by the Plan and/or (ii) take
such other actions as the Company determines necessary or appropriate to
comply with the requirements of Code Section 409A and related Treasury
guidance or Regulations. Notwithstanding the foregoing, neither
the Company nor any other Employers, the Committee, nor their respective
officers, directors, members or representatives, shall have any liability
or other obligation to indemnify or hold harmless any Participant or
Beneficiary for any tax, additional tax, interest or penalties that the
Participant or Beneficiary may incur in the event that any provision of
this Plan, or any other action taken with respect thereto, is deemed to
violate any of the requirements of Code
§409A.
|
12.3
|
Plan
Agreement. Despite
the provisions of Sections 12.1 and 12.2 above, if a Participant’s
Plan Agreement contains benefits or limitations that are not in this Plan
document, the Employer may only amend or terminate such provisions with
the written consent of the
Participant.
|
12.4
|
Effect
of Payment. The
full payment of the Participant’s vested Account Balance under
Articles 4, 5, 6, 7, 8, or 9 of the Plan shall completely discharge
all obligations to a Participant and his or her designated Beneficiaries
under this Plan, and the Participant’s Plan Agreement shall
terminate.
|
13.1
|
Committee
Duties. This
Plan shall be administered by the Compensation Committee of the Board, or
such other Committee as the Board may from time to time
appoint. The Committee shall also have the discretion and
authority to (i) make, amend, interpret, and enforce all appropriate
rules and regulations for the administration of this Plan, and
(ii) decide or resolve any and all questions, including benefit
entitlement determinations and interpretations of this Plan, as may arise
in connection with this Plan. Any individual serving on the
Committee who is a Participant shall not vote or act on any matter
relating solely to himself or herself. When making a
determination or calculation, the Committee shall be entitled to rely on
information furnished by a Participant or an
Employer.
|
13.2
|
Administration
Upon Change In Control.
Within one hundred and twenty (120) days following a Change in Control,
the individuals who comprised the Committee immediately prior to the
Change in Control (whether or not such individuals are members of the
Committee following the Change in Control) may, by written consent of the
majority of such individuals, appoint an independent third party
administrator (the “Administrator”) to perform any or all of the
Committee’s duties described in Section 13.1 above, including without
limitation, the power to determine any questions arising in connection
with the administration or interpretation of the Plan, and the power to
make benefit entitlement determinations. Upon and after the
effective date of such appointment, (i) the Company must pay all
reasonable administrative expenses and fees of the Administrator, and (ii)
the Administrator may only be terminated with the written consent of the
majority of Participants with an Account Balance in the Plan as of the
date of such proposed termination.
|
13.3
|
Agents.
In the administration of this Plan, the Committee or the Administrator, as
applicable, may, from time to time, employ agents and delegate to them
such administrative duties as it sees fit (including acting through a duly
appointed representative) and may from time to time consult with
counsel.
|
13.4
|
Binding
Effect of Decisions. The
decision or action of the Committee or Administrator, as applicable, with
respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules
and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the
Plan.
|
13.5
|
Indemnity
of Committee. All
Employers shall indemnify and hold harmless the members of the Committee,
any Employee to whom the duties of the Committee may be delegated, and the
Administrator against any and all claims, losses, damages, expenses or
liabilities arising from any action or failure to act with respect to this
Plan, except in the case of willful misconduct by the Committee, any of
its members, any such Employee or the
Administrator.
|
13.6
|
Employer
Information. To
enable the Committee and/or Administrator to perform its functions, the
Company and each Employer shall supply full and timely information to the
Committee and/or Administrator, as the case may be, on all matters
relating to the Plan, the Trust, the Participants and their Beneficiaries,
the Account Balances of the Participants, the compensation of its
Participants, the date and circumstances of the Retirement, Disability,
death or Termination of Employment of its Participants, and such other
pertinent information as the Committee or Administrator may reasonably
require.
|
13.7
|
Receipts
and Release. Any payment to any Participant or
Beneficiary in accordance with the provisions of the Plan shall, to the
extent thereof, be in full satisfaction of all claims against the Company,
the Committee, the Plan Administrator and the trustee of the Trust under
the Plan, and the Committee may require such Participant or Beneficiary,
as a condition precedent to such payment pursuant to the Plan, to execute
a receipt and release to such effect on or before the date on which the
payment is payable pursuant to this
Plan.
|
14.1
|
Coordination
with Other Benefits. The
benefits provided for a Participant and Participant’s Beneficiary under
the Plan are in addition to any other benefits available to such
Participant under any other plan or program for employees of the
Participant’s Employer. The Plan shall supplement and shall not
supersede, modify or amend any other such plan or program except as may
otherwise be expressly
provided.
|
15.1
|
Presentation
of Claim. Any
Participant or Beneficiary of a deceased Participant (such Participant or
Beneficiary being referred to below as a “Claimant”) may deliver to the
Committee a written claim for a determination with respect to the amounts
distributable to such
|
|
Claimant
from the Plan. If such a claim relates to the contents of a
notice received by the Claimant, the claim must be made within sixty
(60) days after such notice was received by the
Claimant. All other claims must be made within 180 days of
the date on which the event that caused the claim to arise
occurred. The claim must state with particularity the
determination desired by the
Claimant.
|
15.2
|
Notification
of Decision. The
Committee shall consider a Claimant’s claim within a reasonable time, but
no later than ninety (90) days after receiving the claim. If
the Committee determines that special circumstances require an extension
of time for processing the claim, written notice of the extension shall be
furnished to the Claimant prior to the termination of the initial ninety
(90) day period. In no event shall such extension exceed a
period of ninety (90) days from the end of the initial
period. The extension notice shall indicate the special
circumstances requiring an extension of time and the date by which the
Committee expects to render the benefit determination. The
Committee shall notify the Claimant in
writing:
|
|
(a)
|
that
the Claimant’s requested determination has been made, and that the claim
has been allowed in full; or
|
|
(b)
|
that
the Committee has reached a conclusion contrary, in whole or in part, to
the Claimant’s requested determination, and such notice must set forth in
a manner calculated to be understood by the
Claimant:
|
|
(i)
|
the
specific reason(s) for the denial of the claim, or any part of
it;
|
|
(ii)
|
specific
reference(s) to pertinent provisions of the Plan upon which such denial
was based;
|
|
(iii)
|
a
description of any additional material or information necessary for the
Claimant to perfect the claim, and an explanation of why such material or
information is necessary;
|
|
(iv)
|
an
explanation of the claim review procedure set forth in Section 15.3
below; and
|
|
(v)
|
a
statement of the Claimant’s right to bring a civil action under ERISA
Section 502(a) following an adverse benefit determination on
review.
|
15.3
|
Review
of a Denied Claim. On
or before sixty (60) days after receiving a notice from the Committee
that a claim has been denied, in whole or in part, a Claimant (or the
Claimant’s duly authorized representative) may file with the Committee a
written request for a review of the denial of the claim. The
Claimant (or the Claimant’s duly authorized
representative):
|
|
(a)
|
may,
upon request and free of charge, have reasonable access to, and copies of,
all documents, records and other information relevant (as defined in
applicable ERISA regulations) to the claim for
benefits;
|
|
(b)
|
may
submit written comments or other documents;
and/or
|
|
(c)
|
may
request a hearing, which the Committee, in its sole discretion, may
grant.
|
15.4
|
Decision
on Review. The
Committee shall render its decision on review promptly, and no later than
sixty (60) days after the Committee receives the Claimant’s written
request for a review of the denial of the claim. If the
Committee determines that special circumstances require an extension of
time for processing the claim, written notice of the extension shall be
furnished to the Claimant prior to the termination of the initial sixty
(60) day period. In no event shall such extension exceed a
period of sixty (60) days from the end of the initial
period. The extension notice shall indicate the special
circumstances requiring an extension of time and the date by which the
Committee expects to render the benefit determination. In
rendering its decision, the Committee shall take into account all
comments, documents, records and other information submitted by the
Claimant relating to the claim, without regard to whether such information
was submitted or considered in the initial benefit
determination. The decision must be written in a manner
calculated to be understood by the Claimant, and it must
contain:
|
|
(a)
|
specific
reasons for the decision;
|
|
(b)
|
specific
reference(s) to the pertinent Plan provisions upon which the decision was
based;
|
|
(c)
|
a
statement that the Claimant is entitled to receive, upon request and free
of charge, reasonable access to and copies of, all documents, records and
other information relevant (as defined in applicable ERISA regulations) to
the Claimant’s claim for benefits;
and
|
|
(d)
|
a
statement of the Claimant’s right to bring a civil action under ERISA
Section 502(a).
|
15.5
|
Legal
Action. A
Claimant’s compliance with the foregoing provisions of this
Article 15 is a mandatory prerequisite to a Claimant’s right to
commence any legal action with respect to any claim for benefits under
this Plan.
|
16.1
|
Establishment
of the Trust. In
order to provide assets from which to fulfill its obligations to the
Participants and their Beneficiaries under the Plan, the Company may
establish a trust by a trust agreement with a third party, the trustee, to
which each Employer may, in its discretion, contribute cash or other
property, including securities issued by the Company, to provide for the
benefit payments under the Plan, (the “Trust”).
|
16.2
|
Interrelationship
of the Plan and the Trust. The
provisions of the Plan and the Plan Agreement shall govern the rights of a
Participant to receive distributions pursuant to the Plan. The
provisions of the Trust shall govern the rights of the Employers,
Participants and the creditors of the Employers to the assets transferred
to the Trust. Each Employer shall at all times remain liable to
carry out its obligations under the
Plan.
|
16.3
|
Distributions
From the Trust. Each
Employer’s obligations under the Plan may be satisfied with Trust assets
distributed pursuant to the terms of the Trust, and any such distribution
shall reduce the Employer’s obligations under this
Plan.
|
17.1
|
Status
of Plan. The
Plan is intended to be a plan that is not qualified within the meaning of
Code Section 401(a) and that “is unfunded and is maintained by an employer
primarily for the purpose of providing deferred compensation for a select
group of management or highly compensated employees” within the meaning of
ERISA Sections 201(2), 301(a)(3) and 401(a)(1). The Plan shall
be administered and interpreted (i) to the extent possible in a manner
consistent with the intent described in the preceding sentence, and (ii)
in accordance with Code Section 409A and related Treasury guidance and
Regulations.
|
17.2
|
Unsecured
General Creditor. Participants
and their Beneficiaries, heirs, successors and assignees shall have no
legal or equitable rights, interests or claims in any property or assets
of an Employer. For purposes of the payment of benefits under
this Plan, any and all of an Employer’s assets shall be, and remain, the
general, unpledged unrestricted assets of the Employer. An
Employer’s obligation under the Plan shall be merely that of an unfunded
and unsecured promise to pay money in the
future.
|
17.3
|
Employer’s
Liability. Each
Employer, and only such Employer, shall be obligated to pay the benefits
that are attributable to contributions credited to the Participant's
Account with respect to Compensation payable or Employer Contributions
credited by that Employer. An Employer’s liability for the
payment of benefits shall be defined only by the Plan and the Plan
Agreement, as entered into between the Employer and a
Participant. An Employer shall have no obligation to a
Participant under the Plan except as expressly provided in the Plan and
his or her Plan Agreement.
|
17.4
|
Nonassignability. Neither
a Participant nor any other person shall have any right to commute, sell,
assign, transfer, pledge, anticipate, mortgage or otherwise encumber,
transfer, hypothecate, alienate or convey in advance of actual receipt,
the amounts, if any, payable hereunder, or any part thereof, which are,
and all rights to which are expressly declared to be, unassignable and
non-transferable. No part of the amounts payable shall, prior
to actual payment, be subject to seizure, attachment, garnishment or
sequestration for the payment of any debts, judgments, alimony or separate
maintenance owed by a Participant or any other person, be transferable by
operation of law in the event of a Participant’s or any other person’s
bankruptcy or insolvency or be transferable to a spouse as a result of a
property settlement or
otherwise.
|
17.5
|
Not
a Contract of Employment. The
terms and conditions of this Plan shall not be deemed to constitute a
contract of employment between any Employer and a
Participant. Such employment is hereby acknowledged to be an
“at will” employment relationship that can be terminated at any time for
any reason, or no reason, with or without cause, and with or without
notice, unless expressly provided in a written employment
agreement. Nothing in this Plan shall be deemed
to
|
|
give
a Participant the right to be retained in the service of any Employer,
either as an Employee or a Director, or to interfere with the right of any
Employer to discipline or discharge the Participant at any
time.
|
17.6
|
Furnishing
Information. A
Participant or his or her Beneficiary will cooperate with the Committee by
furnishing any and all information requested by the Committee and take
such other actions as may be requested in order to facilitate the
administration of the Plan and the payments of benefits hereunder,
including but not limited to taking such physical examinations as the
Committee may deem necessary.
|
17.7
|
Terms. Whenever
any words are used herein in the masculine, they shall be construed as
though they were in the feminine in all cases where they would so apply;
and whenever any words are used herein in the singular or in the plural,
they shall be construed as though they were used in the plural or the
singular, as the case may be, in all cases where they would so
apply.
|
17.8
|
Captions. The
captions of the articles, Sections and paragraphs of this Plan are for
convenience only and shall not control or affect the meaning or
construction of any of its
provisions.
|
17.9
|
Governing
Law. Subject
to ERISA, the provisions of this Plan shall be construed and interpreted
according to the internal laws of the State of Florida without regard to
its conflicts of laws
principles.
|
17.10
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Notice. Any
notice or filing required or permitted to be given to the Committee under
this Plan shall be sufficient if in writing and hand-delivered, or sent by
registered or certified mail, to the address
below:
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HEICO
Corporation
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Attn: Chief
Financial Officer
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3000
Taft Street
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Hollywood,
Florida 33021
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17.11
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Successors. The
provisions of this Plan shall bind and inure to the benefit of the
Participant’s Employer and its successors and assigns and the Participant
and the Participant’s designated
Beneficiaries.
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17.12
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Spouse’s
Interest. The
interest in the benefits hereunder of a spouse of a Participant who has
predeceased the Participant shall automatically pass to the Participant
and shall not be transferable by such spouse in any manner, including but
not limited to such spouse’s will, nor shall such interest pass under the
laws of intestate succession.
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17.13
|
Validity. In
case any provision of this Plan shall be illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining parts
hereof, but this Plan shall be construed and enforced as if such illegal
or invalid provision had never been inserted
herein.
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17.14
|
Incompetent. If
the Committee determines in its discretion that a benefit under this Plan
is to be paid to a minor, a person declared incompetent or to a person
incapable of handling the disposition of that person’s property, the
Committee may direct payment of such benefit to the guardian, legal
representative or person having the care and custody of such minor,
incompetent or incapable person. The Committee may require
proof of minority, incompetence, incapacity or guardianship, as it may
deem appropriate prior to distribution of the benefit. Any
payment of a benefit shall be a payment for the account of the Participant
and the Participant’s Beneficiary, as the case may be, and shall be a
complete discharge of any liability under the Plan for such payment
amount.
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17.15
|
Court
Order. The
Committee is authorized to comply with any court order in any action in
which the Plan or the Committee has been named as a party, including any
action involving a determination of the rights or interests in a
Participant’s benefits under the Plan. Notwithstanding the
foregoing, the Committee shall interpret this provision in a manner that
is consistent with Code Section 409A and other applicable tax
law. In addition, if necessary to comply with a qualified
domestic relations order, as defined in Code Section 414(p)(1)(B),
pursuant to which a court has determined that a spouse or former spouse of
a Participant has an interest in the Participant’s benefits under the
Plan, the Committee, in its sole discretion, shall have the right to
immediately distribute the spouse’s or former spouse’s interest in the
Participant’s benefits under the Plan to such spouse or former
spouse.
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17.16
|
Distribution
in the Event of Income Inclusion Under 409A. If any
portion of a Participant’s Account Balance under this Plan is required to
be included in income by the Participant prior to receipt due to a failure
of this Plan to meet the requirement of Code Section 409A and related
Treasury guidance or Regulations, the Participant may petition the
Committee or Administrator, as applicable, for a distribution of that
portion of his or her Account Balance that is required to be included in
his or her income. Upon the grant of such a petition, the grant of which
shall be at the Committee’s sole discretion, the Participant’s Employer
shall distribute to the Participant immediately available funds in an
amount equal to the portion of his or her Account Balance required to be
included in income as a result of the failure of the Plan to meet the
requirements of Code Section 409A and related Treasury guidance or
Regulations, which amount shall not exceed the Participant’s unpaid vested
Account Balance under the Plan. If the petition is granted,
such distribution shall be made within ninety (90) days of the date when
the Participant’s petition is granted. Such a distribution
shall affect and reduce the Participant’s benefits to be paid under this
Plan.
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17.17
|
Deduction
Limitation on Benefit Payments. If an Employer
reasonably anticipates that the Employer’s deduction with respect to any
distribution from this Plan would be limited or eliminated by application
of Code Section 162(m), then to the extent deemed necessary by the
Employer to ensure that the entire amount of any distribution from this
Plan is deductible, the Employer may delay payment of any amount that
would otherwise be distributed from this
Plan.
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|
Any
amounts for which distribution is delayed pursuant to this Section shall
continue to be credited/debited with additional amounts in accordance with
Section 3.9 above. The delayed amounts (and any amounts
credited thereon) shall be distributed to the Participant (or his or her
Beneficiary in the event of the Participant’s death) at the earliest date
the Employer reasonably anticipates that the deduction of the payment of
the amount will not be limited or eliminated by application of Code
Section 162(m).
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17.18
|
Insurance. The
Employers, on their own behalf or on behalf of the trustee of the Trust,
and, in their sole discretion, may apply for and procure insurance on the
life of the Participant, in such amounts and in such forms as the Trust
may choose. The Employers or the trustee of the Trust, as the
case may be, shall be the sole owner and beneficiary of any such
insurance. The Participant shall have no interest whatsoever in
any such policy or policies, and at the request of the Employers shall
submit to medical examinations and supply such information and execute
such documents as may be required by the insurance company or companies to
whom the Employers have applied for
insurance.
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“Company”
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HEICO
Corporation, a Florida corporation
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By: /s/
Thomas S. Irwin
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Title:
Treasurer
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