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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HEICO CORPORATION
(Exact name of registrant as specified in its charter)
Florida 65-0341002
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation)
3000 Taft Street
Hollywood, Florida 33021
(Address of principal executive offices) (Zip code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
Preferred Stock Purchase Rights
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(Title of Class)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: NONE
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On November 2, 1993, the Board of Directors of HEICO Corporation (the
"Company") declared a distribution of one Preferred Stock Purchase Right (the
"Rights") for each outstanding share of common stock, par value $.01 per share,
of the Company (the "Common Stock") held of record at the close of business on
November 12, 1993. Each Right entitles the registered holder to purchase from
the Company one one-hundredth (1/100) of a share of a new series of preferred
shares of the Company, designated as Series A Junior Participating Preferred
Stock (the "Series A Preferred Stock") at a price of $45 per one one-hundredth
(1/100) of a share (the "Exercise Price"), subject to certain adjustments. The
description and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and Sun Bank, National Association, a
national banking association, as Rights Agent ("Rights Agent"), dated as of
November 2, 1993.
Initially the Rights will not be exercisable, certificates will not be sent
to shareholders, and the Rights will automatically trade with the Common Stock.
Until the close of business on the tenth day (or such later date as may be
determined by action of the Board of Directors) after the earlier to occur of
(i) a public announcement that a person or group of affiliated or associated
persons, with certain exceptions, has acquired beneficial ownership of 15% or
more of the Company's voting stock ("Acquiring Person"), except that Acquiring
Person shall not include (A) the Company, (B) any subsidiary of the Company, (C)
any employee benefit plan or employee stock plan of the Company or of any
subsidiary of the Company, (D) any person whose ownership of 15% or more of the
shares of voting stock of the Company then outstanding results from a
transaction or transactions approved by the Continuing Directors (as defined in
the Rights Agreement) and effected before such person acquires such 15%
beneficial ownership (provided that such person shall become an Acquiring Person
upon his acquisition of an additional 1% of the Company's voting stock unless
otherwise approved by the Continuing Directors), (E) any person whose beneficial
ownership of shares of voting stock of the Company is increased to 15% or more
of the shares of voting stock of the Company then outstanding solely by reason
of a reduction in the number of issued and outstanding shares of voting stock of
the Company pursuant to a transaction or transactions approved by the Continuing
Directors of the Company (provided that such person shall become an Acquiring
Person upon his acquisition of an
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additional 1% of the Company's voting stock unless otherwise approved by the
Continuing Directors), or (F) any person whose ownership of 15% or more of the
shares of voting stock of the Company then outstanding results from any action
or transaction deemed by a resolution of the Continuing Directors of the Company
not to cause such person to become an Acquiring Person which resolution is
passed prior to such person otherwise becoming an Acquiring Person (provided
such person shall become an Acquiring Person upon his acquisition of an
additional 1% of the Company's voting stock unless otherwise approved by the
Continuing Directors), or (ii) the date of the commencement or announcement of a
person's or group's intention to commence a tender or exchange offer (other than
a tender or exchange offer by the Company, any subsidiary of the Company or any
employee benefit plan or employee stock plan of the Company or any subsidiary of
the Company) whose consummation would result in the ownership of 30% or more of
the outstanding shares of Common Stock of the Company, even if no purchase
actually occurs pursuant to such offer (including any such date which is after
the date of the Rights Agreement and prior to the issuance of the Rights; the
earlier of such dates being called the "Distribution Date"), the Rights will be
evidenced, with respect to any Common Stock certificates outstanding as of
November 12, 1993, by such Common Stock certificate with a copy of a Summary of
Rights attached thereto, which will be distributed to shareholders of record as
of November 12, 1993 (the "Summary of Rights"). Voting stock of the Company
owned by any person and acquired by such person from Company or deemed to be
beneficially owned by such person pursuant to the exercise or holding of
conversion rights, exchange rights, other rights (other than the Rights),
warrants or options acquired from the Company is excluded in determining whether
such person has acquired 15% or more of the outstanding voting stock. The
Rights Agreement provides that, until the Distribution Date, the Rights will be
represented by and transferred with, and only with, the Common Stock. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Stock certificates issued after November 12, 1993 will contain a legend
incorporating the Rights Agreement by reference. Until the Distribution Date
(or earlier redemption or expiration of the Rights), the surrender for transfer
of any of the Common Stock certificates outstanding as of November 12, 1993 with
or without a copy of the Summary of Rights attached, will also constitute the
transfer of the Rights associated with the Common Stock represented by such
certificate. As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Stock as of the close
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of business on the Distribution Date and such separate certificates alone will
evidence the Rights from and after the Distribution Date.
The Rights are not exercisable until after both the Distribution Date and
the receipt of the certificates which evidence the Rights. The Rights may be
exercised, in whole or in part, upon surrender of the Right certificate, with
the form of election to purchase, located on the reverse side of such
certificate, duly executed (with signature, duly guaranteed), to the Rights
Agent, together with payment of the Exercise Price, subject to adjustment as
provided in the Rights Agreement. The Rights will expire at the close of
business on November 2, 2003, unless earlier redeemed by the Company as
described below.
The Series A Preferred Stock will be non-redeemable and, unless otherwise
provided in connection with the creation of a subsequent series of preferred
stock, subordinate to any other series of the Company's preferred stock. The
Series A Preferred Stock may not be issued except upon exercise of the Rights.
Each share of Series A Preferred Stock will be entitled to receive when, as and
if declared, a quarterly distribution in an amount equal to the greater of $.75
per share or 100 times the cash distributions declared on a share of Common
Stock. In the event that any preferential cash dividends to which the holders
of any current or future series of the Company's preferred stock, including the
Series A Preferred Stock, are entitled has accrued for four or more quarterly
dividend payment periods, whether consecutive or not, and shall not have been
declared and paid (or a sum sufficient for the payment thereof shall not have
been set aside) in full, the holders of such series of preferred stock shall
have the right, acting as a single voting group to elect two directors to the
Company's Board of Directors and to continue to have two directors on the Board
of Directors for so long as any such dividends remain unpaid (or a sum
sufficient for the payment thereof has not been set aside) in full.
In addition, each share of Series A Preferred Stock is entitled to 100 times
any non-cash distributions (other than distributions payable in equity
securities) declared on a share of Common Stock, in like kind. In the event of
liquidation, the holders of the Series A Preferred Stock will be entitled to
receive a liquidation payment in an amount equal to the greater of $45 per one
one-hundredth (1/100) of a share or 100 times the payment made per share of
Common Stock. Each share of Series A Preferred Stock will have 100 votes,
voting together with the Common Stock as a single voting group.
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In the event of any merger, consolidation or other transaction in shares of
Common Stock are exchanged, each share of Series A Preferred Stock will be
entitled to receive 100 times the amount received per share of Common Stock.
The rights of the Series A Preferred Stock as to distributions, liquidation and
voting are protected by anti-dilution provisions.
The number of shares of Series A Preferred Stock issuable upon exercise of
the Rights is subject to certain adjustments from time to time in the event of a
stock distribution on, or a subdivision or combination of, the Common Stock.
The Exercise Price is subject to adjustment in the event of extraordinary
distributions of cash or other property to holders of Common Stock.
Unless the Rights are earlier redeemed, or the transaction is approved by
the Continuing Directors, in the event that, after the Rights become
exercisable, the Company is acquired in a merger or other business combination
(in which any shares of the Company's Common Stock are changed into or exchanged
for other securities or assets) or more than 50% of the assets or earning power
of the Company and its subsidiaries (taken as a whole) is sold or transferred in
one or a series of related transactions, the Rights Agreement provides that
proper provision will be made so that each holder of record of a Right will from
and after such date have the right to receive, upon payment of the Exercise
Price, that number of shares of common stock of the acquiring company having a
market value at the time of such transaction equal to two times the Exercise
Price. In addition, unless the Rights are earlier redeemed, or the transaction
is approved by the Continuing Directors, if a person or group, with certain
exceptions, becomes the beneficial owner of 15% or more of the Company's voting
stock, the Rights Agreement provides that proper provision will be made so that
each holder of record of a Right, other than the Acquiring Person (whose Rights
will thereupon become null and void), will thereafter have the right to receive,
upon payment of the Exercise Price, that number of shares of Series A Preferred
Stock having a market value at the time of the transaction equal to two times
the Exercise Price.
Fractions of shares of Series A Preferred Stock may, at the election of the
Company, be evidenced by depositary receipts. The Company may also issue cash
in lieu of fractional shares which are not integral multiples of one-hundredth
of a share.
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At any time on or prior to the close of business on the tenth day after a
public announcement that a person has become an Acquiring Person (or such later
date as a majority of the Continuing Directors may determine; the Company may
redeem the Rights in whole, but not in part, at a price of $.01 per Right
("Redemption Price"); PROVIDED, HOWEVER, the Company may not redeem a Right at
anytime after the Company's acceptance of the exercise of such Right.
Immediately upon the action of the Board of Directors of the Company authorizing
redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of the Rights will be to receive the Redemption
Price.
Until a Right is exercised, the holder, as such, will have no rights as a
shareholder of the Company, including, without limitation, the right to vote or
to receive distributions; PROVIDED, HOWEVER, that, pursuant to the Rights
Agreement, the Company will not effect any amendment to its Articles of
Incorporation which would adversely affect the preferences, limitations or
relative rights of the Series A Preferred Stock without the approval of (i) the
holders of the then outstanding Rights and (ii) the holders of the then
outstanding shares of Series A Preferred Stock. Such approval shall be by a
two-thirds vote, 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 amendment.
As of April 10, 1995, there were 2,279,896 shares of Common Stock issued and
outstanding and 686,523 shares reserved for issuance upon the exercise of
outstanding options under the Company's stock option plans. 50,000 shares of
Series A Preferred Stock have been reserved for issuance upon exercise of the
Rights.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group who attempts to acquire the Company on
terms not approved by the Company's Board of Directors. The Rights should not
interfere with any merger or other business combination approved by the Board
since they may be redeemed by the Company at $.01 per Right at any time until
the close of business on the tenth day after a person or group has obtained
beneficial ownership of 15% or more of the voting stock. The Company's ability
to issue other series or classes of preferred stock could also be used to make a
change in control of the Company more difficult if the Company's Board of
Directors caused shares of preferred stock to be issued to
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holders who might side with the Company's Board of Directors in opposing a
takeover bid that the Company's Board of Directors determines is not in the best
interest of the Company and its shareholders. In addition, the Company's Board
of Directors could issue a series of preferred stock with rights and preferences
that might similarly impede or discourage proposed mergers, tender offers, or
other attempts to gain control of the Company. The Company's present Articles
of Incorporation and By-Laws contain other provisions which could have anti-
takeover effects. These provisions include, without limitation, (i) the
authority of the Board of Directors to issue additional shares of Common Stock
without additional shareholder approval and (ii) certain notice procedures to be
complied with by shareholders in order to make shareholder proposals or nominate
directors.
The form of Rights Agreement between the Company and Sun Bank, National
Association, as rights agent, specifying the terms of the Rights, which
includes, as Exhibit A thereto, the form of Summary of Rights to Purchase Series
A Junior Participating Preferred Stock, as Exhibit B thereto, the form of Right
Certificate and, as Exhibit C thereto, the form of Articles of Amendment of the
Company setting forth the preferences, limitations and relative rights of the
Series A Preferred Stock, is attached hereto as an Exhibit 4 and incorporated
herein by reference. The foregoing description of the Rights is qualified by
reference to such Exhibit 4.
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ITEM 2. EXHIBITS.
EXHIBIT NO. DESCRIPTION
4. Rights Agreement dated as of November 2, 1993 between
HEICO Corporation and Sun Bank, National Association, a
national banking association, as Rights Agent. The Rights
Agreement includes, as Exhibit A thereto, the form of
Articles of Amendment establishing the preferences,
limitations and relative rights of the Series A Junior
Participating Preferred Stock, as Exhibit B thereto, the form
of Summary of Rights to Purchase Series A Junior
Participating Preferred Stock and, as Exhibit C thereto, the
form of Right Certificate.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
HEICO CORPORATION
By: s/s THOMAS S. IRWIN
Thomas S. Irwin
Executive Vice President
Chief Financial Officer
Date: July 11, 1995
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HEICO CORPORATION
and
SUN BANK, NATIONAL ASSOCIATION
as Rights Agent
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RIGHTS AGREEMENT
Dated as of November 2, 1993
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TABLE OF CONTENTS
SECTION PAGE
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1. Certain Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Appointment of Rights Agent. . . . . . . . . . . . . . . . . . . . . . 9
3. Issuance of Right Certificates . . . . . . . . . . . . . . . . . . . . 10
4. Form of Right Certificates .. . . . . . . . . . . . . . . . . . . . . 12
5. Countersignature and Registration. . . . . . . . . . . . . . . . . . . 13
6. Transfer, Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right Certificates. . . . . . . 14
7. Exercise of Rights; Exercise Price; Expiration Date of Rights. . . . . 16
8. Cancellation and Destruction of Right Certificates . . . . . . . . . . 19
9. Reservation and Availability of Shares of Series A Preferred Stock . . 19
10. Series A Preferred Stock Record Date . . . . . . . . . . . . . . . . . 21
11. Adjustment of Exercise Price or Number of Shares . . . . . . . . . . . 21
12. Certification of Adjusted Exercise Price or Number of Shares . . . . . 29
13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power . 29
14. Fractional Rights and Fractional Shares. . . . . . . . . . . . . . . . 34
15. Rights of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
16. Agreement of Right Holders . . . . . . . . . . . . . . . . . . . . . . 36
17. Right Certificate Holder Not Deemed a Shareholder. . . . . . . . . . . 37
18. Concerning the Rights Agent. . . . . . . . . . . . . . . . . . . . . . 37
19. Merger or Consolidation of, or Change in Name of, the Rights Agent . . 38
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20. Duties of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . . 39
21. Change of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . . 42
22. Issuance of New Right Certificates . . . . . . . . . . . . . . . . . . 44
23. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
24. Notice of Proposed Actions . . . . . . . . . . . . . . . . . . . . . . 45
25. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
26. Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . 48
27. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
28. Benefits of this Rights Agreement. . . . . . . . . . . . . . . . . . . 49
29. Florida Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
30. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
31. Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . . . . 50
32. Severability. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ii
RIGHTS AGREEMENT
Agreement, dated as of November 2, 1993, by and between HEICO
CORPORATION, a Florida corporation (the "Company"), and SUN BANK, NATIONAL
ASSOCIATION, a national banking association (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, subject to the execution of this Rights Agreement, on
November 2, 1993, the Board of Directors of the Company authorized the issuance
of, and declared a dividend payable in, one right (a "Right") for each share of
Common Stock, $0.01 par value per share, of the Company outstanding as of the
close of business on November 12, 1993 (the "Record Date"), each such Right
representing the right to purchase one one-hundredth of a share of Series A
Junior Participating Preferred Stock of the Company ("Series A Preferred Stock")
having the rights and preferences set forth in the form of Articles of Amendment
attached hereto as Exhibit A authorized by the Board of Directors on November 2,
1993, upon the terms and subject to the conditions hereinafter set forth; and
WHEREAS, the Board of Directors of the Company presently intends to
authorize the issuance of one Right with respect to each share of Common Stock
which may be issued between the Record Date and the earlier to occur of the
Expiration Date or the Final Expiration Date (as such terms are hereinafter
defined);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates (as
such term is hereinafter defined) and Associates (as such term is
hereinafter defined) of such Person, shall be the Beneficial Owner (as
such term is hereinafter defined) of 15% or more of the shares of
Voting Stock (as such term is hereinafter defined) then outstanding;
PROVIDED, HOWEVER, that an Acquiring Person shall not include an
Exempt Person (as such term is hereinafter defined), or any Person,
together with all Affiliates and Associates of such Person, who or
which would be an Acquiring Person by reason of (i) being the
Beneficial Owner of shares of Voting Stock, the Beneficial Ownership
of which was acquired by such Person (or his or its predecessor)
pursuant to a transaction or series of related transactions approved
by the Continuing Directors (as such term is hereinafter defined) of
the Company and effected before such Person (or his or its
predecessor) otherwise became an Acquiring Person, (ii) a reduction in
the number of issued and outstanding shares of Voting Stock of the
Company pursuant to a transaction or a series of related transactions
approved by the Continuing Directors of the Company, (iii) any action
or transaction deemed by a resolution of the Continuing Directors of
the Company not to cause such Person to become an Acquiring Person
which resolution is passed prior to such Person (or his or its
predecessor) otherwise becoming an Acquiring Person, or (iv) being the
Beneficial Owner on the date of this Agreement of 15% or more of
outstanding Voting Stock; PROVIDED, FURTHER, HOWEVER, that (A) in the
event such Person does not
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become an Acquiring Person by reason of clause (i), (ii) or (iii) of
this Section 1(a), such Person shall become an Acquiring Person in the
event such Person thereafter acquires Beneficial Ownership of an
additional 1% of the Voting Stock unless such Person would not become
an Acquiring Person by reason of any provision of this Agreement,
including clause (i), (ii) or (iii); (B) in the event such Person does
not become an Acquiring Person by reason of clause (iv) of this
Section 1(a), such Person shall become an Acquiring Person in the
event such Person at any time after the date of this Agreement
acquires Beneficial Ownership of an additional 1% of the Voting Stock;
and (C) in determining the number of shares of Voting Stock
Beneficially Owned by a Person, shares of Voting Stock acquired by
such Person from the Company or deemed to be Beneficially Owned by
such Person, pursuant to the exercise or holding of conversion rights,
exchange rights, other rights (other than these Rights), warrants or
options acquired from the Company, shall be excluded.
(b) "Affiliate" shall have the meaning ascribed to such term in
Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended ("Exchange Act"), as in effect on the
date of this Rights Agreement.
(c) "Associate" of a Person (as such term is hereinafter
defined) shall mean (i) with respect to a corporation, any officer or
director thereof or of any Subsidiary (as such term is hereinafter
defined) thereof, or any Beneficial Owner (as such term is hereinafter
defined) of 10% or more of any class of
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equity security thereof, (ii) with respect to an association, any
officer or director thereof or of a Subsidiary thereof, (iii) with
respect to a partnership, any general partner thereof or any limited
partner thereof who is, directly or indirectly, the Beneficial Owner
of a 10% ownership interest therein, (iv) with respect to a business
trust, any officer or trustee thereof or of any Subsidiary thereof,
(v) with respect to any other trust or an estate, any trustee,
executor or similar fiduciary or any Person who has a 20% or greater
interest as a beneficiary in the income from or principal of such
trust or estate, (vi) with respect to a natural person, any relative
or spouse of such person, or any relative of such spouse, who has the
same home as such person, and (vii) any Affiliate of such Person.
(d) A person shall be deemed the "Beneficial Owner" of, or to
"Beneficially Own", any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly, for
purposes of Section 13(d) of the Exchange Act and Rules 13d-1
through 13d-7 thereunder (or any comparable or successor law or
regulation), in each case as in effect on the date hereof; or
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time or the
fulfillment of a condition or both) pursuant to any agreement,
arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, other rights
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(other than these Rights), warrants or options, or otherwise;
PROVIDED, HOWEVER, that a Person shall not be deemed the
"Beneficial Owner" of, or to "Beneficially Own", securities
tendered pursuant to a tender or exchange offer made by such
Person or any of such Person's Affiliates or Associates until
such tendered securities are accepted for purchase or exchange
or (B) the right to vote, alone or in concert with others,
pursuant to any agreement, arrangement or understanding (whether
or not in writing); PROVIDED, HOWEVER, that a Person shall not be
deemed the "Beneficial Owner" of, or to "Beneficially Own", any
securities if the agreement, arrangement or understanding to vote
such security (1) arises solely from a revocable proxy or consent
given in response to a proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations under the Exchange Act and (2) is not at the time
reportable by such Person on a Schedule 13D report under the
Exchange Act (or any comparable or successor report), other than
by reference to a proxy or consent solicitation being conducted
by such Person; or
(iii) which are beneficially owned, directly or indirectly,
by any other Person with which such Person or any of such
Person's Affiliates or Associates has any agreement, arrangement
or understanding (whether or not in writing) for the purpose of
acquiring, holding, voting (except as described in clause B of
subparagraph (ii) of this paragraph (d)) or
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disposing of any securities of the Company; PROVIDED, HOWEVER,
that for purposes of determining beneficial ownership of
securities under this Rights Agreement, officers and directors of
the Company shall not constitute a group (notwithstanding that
they may be Associates of one another or may be deemed to
constitute a group for purposes of the Exchange Act) and shall
not be deemed to own shares owned by another officer or director
of the Company.
(e) "Business Day" shall mean any day other than a Saturday,
Sunday, or a day on which banking institutions in the State of Florida
are authorized or obligated by law or executive order to close.
(f) "Close of Business" on any given date shall mean 5:00 p.m.,
Miami, Florida time, on such date; PROVIDED, HOWEVER, that if such
date is not a Business Day it shall mean 5:00 P.M., Miami, Florida
time, on the next succeeding Business Day.
(g) "Common Stock" shall mean the Common Stock (currently $0.01
par value) of the Company. "Common Stock" when used with reference to
the Principal Party (as such term is hereinafter defined) shall mean
the capital stock or other equity security with the greatest voting
power of the Principal Party and, when used with reference to any
Person other than the Company or the Principal Party, shall mean the
capital stock or other equity security with the greatest voting power
of such Person or, if such Person is a Subsidiary of or is
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controlled by another Person, the Person which ultimately controls
such first-mentioned Person.
(h) "Continuing Director" shall mean any member of the Board of
Directors, while such person is a member of the Board of Directors,
who is not an Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, or representative or nominee of an Acquiring Person
or of any such Affiliate or Associate, and who either (i) was a member
of the Board of Directors prior to the Stock Acquisition Date, or (ii)
subsequently became a member of the Board of Directors, and whose
nomination for election or election to the Board of Directors was
recommended or approved by a majority of the Continuing Directors then
on the Board of Directors.
(i) "Distribution Date" shall have the meaning set forth in
Section 3(b) hereof.
(j) "Exchange Act" shall have the meaning set forth in Section
1(b) hereof.
(k) "Exempt Person" shall mean the (i) Company, (ii) any
Subsidiary of the Company, or (iii) any employee benefit plan or
employee stock plan of the Company or of any Subsidiary of the Company
or any trust or other entity organized, appointed, established or
holding Common Stock for or pursuant to the terms of any such plan.
(l) "Exercise Price" shall have the meaning set forth in
Sections 4 and 7(b) hereof.
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(m) "Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
(n) "Fair Market Value" of any property shall mean the fair
market value of such property as determined in accordance with Section
11(b) hereof.
(o) "Final Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
(p) "Person" shall mean any individual, firm, corporation or
other entity.
(q) "Principal Party" shall have the meaning set forth in
Section 13(b) hereof.
(r) "Redemption Price" shall have the meaning set forth in
Section 23(a) hereof.
(s) "Right Certificate" shall have the meaning set forth in
Section 3(d) hereof.
(t) "Stock Acquisition Date" shall mean the first date by which
both (i) an Acquiring Person has become such and (ii) a public
announcement of such fact has been made by either the Company or such
Acquiring Person (which, for purposes of this definition, shall
include, without limitation, a report filed pursuant to Section 13(d)
of the Exchange Act).
(u) "Subsidiary" of a Person shall mean any corporation or other
entity of which securities or other ownership interests having voting
power sufficient to elect a majority of the board of directors or
other persons performing similar
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functions are beneficially owned, directly or indirectly, by such
Person or by any corporation or other entity that is otherwise
controlled by such Person.
(v) "Summary of Rights" shall have the meaning set forth in
Section 3(a) hereof.
(w) "Trading Day" shall have the meaning set forth in Section
11(b) hereof.
(x) "Transfer Tax" shall mean any tax or charge, including any
documentary stamp tax, imposed or collected by any governmental or
regulatory authority in respect of any transfer of any security,
instrument or right, including Rights, shares of Common Stock and
shares of Series A Preferred Stock.
(y) "Voting Stock" shall mean (i) the Common Stock of the
Company and (ii) any other shares of capital stock of the Company
entitled to vote generally in the election of directors or entitled to
vote together with the Common Stock in respect of any merger,
consolidation, sale of all or substantially all of the Company's
assets, liquidation, dissolution or winding up.
Any determination required to be made by the Board of Directors of the Company
for purposes of applying the definitions contained in this Section 1 shall be
made by the Board of Directors in its good faith judgment, which determination
shall be binding on the Rights Agent and the holders of the Rights.
Section 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the Rights
in accordance with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The
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Company may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable.
Section 3. ISSUANCE OF RIGHT CERTIFICATES.
(a) On the Record Date (or as soon as practicable thereafter), the
Company shall send a copy of a Summary of Rights, in substantially the form
attached hereto as Exhibit B (the "Summary of Rights"), by first class mail,
postage prepaid, to each record holder of the Common Stock as of the close of
business on the Record Date, at the address of such holder shown on the records
of the Company.
(b) Until the close of business on the tenth day (or such later date
as may be determined by action of the Board of Directors) after the earlier to
occur of (i) the Stock Acquisition Date or (ii) the date of the commencement by
any Person (other than an Exempt Person) of, or the first public announcement of
the intent of any Person (other than an Exempt Person) to commence, a tender or
exchange offer upon the successful consummation of which such Person, together
with its Affiliates and Associates, would be the Beneficial Owner of 30% or more
of the then outstanding shares of Voting Stock of the Company (irrespective of
whether any shares are actually purchased pursuant to any such offer) (including
any such date which is after the date of this Agreement and prior to the
issuance of the Rights; the earlier of such dates being herein referred to as
the "Distribution Date"), (x) the Rights shall be evidenced (subject to the
provisions of Section 3(a)) by the certificates for Common Stock registered in
the name of the holders of the Common Stock (which certificates for Common Stock
shall also constitute certificates for Rights) and not by separate Right
Certificates and the record holders of such certificates for Common Stock shall
be the record holders of the Rights
-10-
represented thereby and (y) each Right shall be transferable only simultaneously
and together with the transfer of a share of Common Stock (subject to adjustment
as hereinafter provided). Until the Distribution Date (or, if earlier, the
Expiration Date or Final Expiration Date), the surrender for transfer of any
certificate for Common Stock shall constitute the surrender for transfer of the
Right or Rights associated with the Common Stock evidenced thereby, whether or
not a copy of the Summary of Rights is transferred simultaneously with such
share certificate.
(c) Certificates for Common Stock issued after the Record Date but
prior to the earliest of the Distribution Date, the Expiration Date, or the
Final Expiration Date shall have impressed, printed, written or stamped thereon
or otherwise affixed thereto the following legend:
This certificate also evidences and entitles the holder hereof
to the same number of Rights as the number of shares of Common
Stock represented by this certificate, such Rights being on the
terms provided under the Rights Agreement between HEICO
Corporation and Sun Bank, National Association (the "Rights
Agent"), dated as of November 2, 1993 (the "Rights Agreement"),
the terms of which are incorporated herein by reference and a copy
of which is on file at the principal executive offices of HEICO
Corporation. Under certain circumstances, as set forth in the
Rights Agreement, such Rights shall be evidenced by separate
certificates and shall no longer be evidenced by this certificate.
HEICO Corporation shall mail to the registered holder of this
certificate a copy of the Rights Agreement without charge within
five days after receipt of a written request therefor. Under certain
circumstances as provided in the Rights Agreement, Rights issued
to or owned by Acquiring Persons or their Affiliates or Associates
(as defined in the Rights Agreement) and any subsequent holder of
such Rights shall be null and void.
(d) As soon as practicable after the Distribution Date, the Company
or the Rights Agent shall send, by first class mail, postage prepaid, to each
record holder of the
-11-
Common Stock as of the close of business on the Distribution Date, as shown by
the records of the Company, at the address of such holder shown on such records,
a certificate in the form provided by Section 4 hereof (a "Right Certificate"),
evidencing one Right for each share of Common Stock so held. As of and after
the Distribution Date, the Rights shall be evidenced solely by Right
Certificates and may be transferred by the transfer of the Right Certificate as
permitted hereby, separately and apart from any transfer of one or more shares
of Common Stock.
Section 4. FORM OF RIGHT CERTIFICATES.
(a) The Right Certificates (and the forms of election to purchase
shares, certificate and assignment to be printed on the reverse thereof), when,
as and if issued, shall be substantially in the form set forth in Exhibit C
hereto and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as may be required to comply
with any law or with any rule or regulation made pursuant thereto or with any
rule or regulation of the American Stock Exchange or any successor thereto or
any other stock exchange or interdealer quotation system on which the Common
Stock or the Rights may from time to time be listed or as the Company may deem
appropriate to conform to usage or otherwise and as are not inconsistent with
the provisions of this Rights Agreement. Subject to the provisions of Section
22 hereof, Right Certificates evidencing Rights whenever issued, (i) shall be
dated as of the date of issuance of the Rights they represent and (ii) subject
to adjustment from time to time as provided herein, on their face shall entitle
the holders thereof to purchase such number of shares (including fractional
shares which are integral multiples of one-hundredth of a share) of Series A
Preferred Stock as shall be set forth therein at the price
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payable upon exercise of a Right provided by Section 7(b) hereof as the same may
from time to time be adjusted as provided herein (the "Exercise Price").
(b) Notwithstanding any other provision of this Rights Agreement, any
Right Certificate that represents Rights beneficially owned by an Acquiring
Person or any Affiliate or Associate thereof shall have impressed on, printed
on, written on or otherwise affixed to it (if the Company or the Rights Agent
has knowledge that such Person is an Acquiring Person or an Associate or
Affiliate or a nominee of any of the foregoing) the following legend:
The Beneficial Owner of the Rights represented by this Right
Certificate is an Acquiring Person or an Affiliate or an Associate
of an Acquiring Person. Accordingly, this Right Certificate and
the Rights represented hereby may be or become void in the
circumstances specified in Section 7(e) of the Rights Agreement.
Nothing in this Section 4(b) creates any obligations on behalf of the
Rights Agent to investigate, or take any action in order to determine, if any
Right Certificate is beneficially owned by an Acquiring Person or any Affiliate
or Associate thereof.
Section 5. COUNTERSIGNATURE AND REGISTRATION.
(a) Each Right Certificate shall be executed on behalf of the Company
by its Chairman of the Board, President or any Vice President, either manually
or by facsimile signature, and have affixed thereto the Company's seal or a
facsimile thereof which shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile signature. Each Right
Certificate shall be countersigned by the Rights Agent either manually or by
facsimile signature and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have signed any
Right Certificate shall cease to be such officer of the Company before
countersignature by the Rights Agent and
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issuance and delivery of the certificate by the Company, such Right Certificate,
nevertheless, may be countersigned by the Rights Agent and issued and delivered
with the same force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Company. Any Right
Certificate may be signed on behalf of the Company by any person who, on the
date of the execution of such Right Certificate, shall be a proper officer of
the Company to sign such Right Certificate, although at the date of the
execution of this Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office in Orlando, Florida, and in such other
locations as may be required by law, books for registration and transfer of the
Right Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates and the date of
each of the Right Certificates.
Section 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT CERTIFICATES.
(a) Subject to the provisions of Section 14(b) hereof, at any time
after the close of business on the Distribution Date, and at or prior to the
close of business on the earlier of the Expiration Date or the Final Expiration
Date, any Right Certificate, may be (i) transferred or (ii) split up, combined
or exchanged for one or more other Right Certificates, entitling the registered
holder to purchase a like number of shares of Series A Preferred Stock as the
Right Certificate or Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer any Right Certificate
shall surrender the Right Certificate
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at the principal office of the Rights Agent with the form of certificate and
assignment on the reverse side thereof duly endorsed (or enclosed with such
Right Certificate a written instrument of transfer in form satisfactory to the
Company and the Rights Agent), duly executed by the registered holder thereof or
his attorney duly authorized in writing, and with such signature duly
guaranteed. Any registered holder desiring to split up, combine or exchange any
Right Certificate shall make such request in writing delivered to the Rights
Agent, and shall surrender the Right Certificate to be split up, combined or
exchanged at the principal office of the Rights Agent. Thereupon, the Rights
Agent shall countersign and deliver to the person entitled thereto a Right
Certificate or Right Certificates, as the case may be, as so requested. The
Company may require payment of a sum sufficient to cover any Transfer Tax that
may be imposed in connection with any transfer, split up, combination or
exchange of any Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Right Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them and, if requested by the Company,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, or upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Company shall issue and deliver a new
Right Certificate of like tenor to the Rights Agent for delivery to the
registered owner in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
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Section 7. EXERCISE OF RIGHTS; EXERCISE PRICE; EXPIRATION DATE OF
RIGHTS.
(a) The Rights shall not be exercisable until, and shall become
exercisable on, the Distribution Date (unless otherwise provided herein,
including, without limitation, the restrictions on exercisability set forth in
Section 23(a) hereof). The Rights may be exercised, in whole or in part, at any
time commencing with the Distribution Date upon surrender of the Right
Certificate, with the form of election to purchase and certificate on the
reverse side thereof duly executed (with signatures duly guaranteed), to the
Rights Agent at the principal office of the Rights Agent in Orlando, Florida,
together with payment of the Exercise Price with respect to each Right
exercised, subject to adjustment as hereinafter provided, at or prior to the
close of business on the earlier of (i) November 2, 2003 (the "Final Expiration
Date") or (ii) the date on which the Rights are redeemed as provided in Section
23 hereof (such earlier date being herein referred to as the "Expiration Date").
(b) The Exercise Price of $45 shall initially be for each one one-
hundredth (1/100) of a share of Series A Preferred Stock issued pursuant to the
exercise of a Right. The Exercise Price and the number of shares of Series A
Preferred Stock or other securities to be acquired upon exercise of a Right
shall be subject to adjustment from time to time as provided in Sections 11 and
13 hereof. The Exercise Price shall be payable in lawful money of the United
States of America, in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate with the certificate and form
of election to purchase duly executed, accompanied by payment by check or money
order payable to the order of the Company or the Rights Agent of the Exercise
Price or so much thereof as is necessary for the purchase of shares or other
securities to be purchased upon exercise of the
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Rights and an amount equal to any applicable Transfer Tax, the Rights Agent
shall thereupon promptly (i) requisition from any transfer agent of the Series A
Preferred Stock of the Company one or more certificates representing the number
of shares of Series A Preferred Stock to be so purchased, and the Company hereby
authorizes and directs such transfer agent to comply with all such requests,
(ii) as provided in Section 14(b), at the election of the Company, cause
depositary receipts to be issued in lieu of fractional shares of Series A
Preferred Stock, (iii) when appropriate, requisition from the Company the amount
of cash to be paid in lieu of the issuance of fractional shares in accordance
with Section 14(b) hereof and (iv) after receipt of such Series A Preferred
Stock certificates and/or depositary receipts or cash payments, cause the same
to be delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder, and, when appropriate, after receipt, promptly deliver such cash to or
upon the order of the registered holder of such Right Certificate; PROVIDED,
HOWEVER, that in the case of a purchase of securities, other than Series A
Preferred Stock, pursuant to Section 13 hereof, the Rights Agent shall promptly
take the appropriate actions corresponding in such case to that referred to in
the foregoing clauses (i) through (iv) of this Section 7(c). Notwithstanding
the foregoing provisions of this Section 7(c), the Company may suspend the
issuance of shares of Series A Preferred Stock upon exercise of a Right for a
reasonable period, not in excess of 90 days, during which the Company seeks to
register under the Securities Act of 1933, as amended, and any applicable
securities law of any other jurisdiction, the shares of Series A Preferred Stock
to be issued pursuant to the Rights; PROVIDED, HOWEVER, that nothing contained
in this Section 7(c) shall relieve the Company of its obligations under Section
9(c) hereof.
-17-
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Right Certificate or his
assign, subject to the provisions of Section 14(b) hereof.
(e) Notwithstanding any provision of this Rights Agreement to the
contrary, upon the occurrence of the event described in Section 11(a)(ii)
hereof, any Rights that are at the time of the occurrence of such event
Beneficially Owned by an Acquiring Person or by any Associate or Affiliate of
such Acquiring Person shall become null and void and no holder of such Rights
shall have any right with respect to such Rights under any provision of this
Rights Agreement from and after the occurrence of such event nor may any Person
subsequently become a holder of such Rights.
(f) The Company shall not effect any amendment to its Articles of
Incorporation in a manner which would adversely affect the preferences,
limitations and relative rights of the Series A Preferred Stock, without the
prior approval of the holders of (i) the then outstanding Rights and (ii) the
then outstanding shares of Series A Preferred Stock. Such approval shall be by
a two-thirds vote, with the holders of 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.
(g) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder upon the occurrence of any purported
exercise as set forth in this Section 7
-18-
unless such registered holder shall have (i) completed and signed the
certificate following the form of election to purchase set forth on the reverse
side of the Right Certificate surrendered for such exercise and (ii) provided
such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request.
Section 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES. All
Right Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Rights Agreement. The Company shall deliver to
the Rights Agent for cancellation and retirement, and the Rights Agent shall
cancel and retire, any Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
canceled Right Certificates to the Company, or shall, at the written request of
the Company, destroy such canceled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. RESERVATION AND AVAILABILITY OF SHARES OF SERIES A
PREFERRED STOCK.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued shares of Series
A Preferred Stock or out of authorized and issued shares of Series A Preferred
Stock held in its treasury, such number of shares of Series A Preferred Stock as
will from time to time be sufficient to permit the exer-
-19-
cise in full of all outstanding Rights. The Company shall take such action as
may be required for it to comply with the foregoing sentence of this Section
9(a).
(b) The Company shall use its best efforts to cause, from and after
such time as the Rights become exercisable, all shares of Series A Preferred
Stock issued or reserved for issuance in accordance with this Rights Agreement
to be listed, upon official notice of issuance, upon the principal national
securities exchange, if any, upon which the Common Stock is listed or, if the
principal market for the Common Stock is not on any national securities
exchange, to be eligible for quotation on the National Association of Securities
Dealers Automated Quotation System's National Market System ("NASDAQ/NMS") or
any successor thereto or other comparable quotation system.
(c) The Company covenants and agrees that it will take all such
action as may be necessary to insure that all shares of Series A Preferred Stock
delivered upon exercise of Rights shall, at the time of delivery of the
certificates for such shares (subject to payment of the Exercise Price in
respect thereof), be duly and validly authorized and issued and fully paid and
nonassessable shares.
(d) The Company further covenants and agrees that it will pay when
due and payable any and all federal and state Transfer Taxes which may be
payable in respect of the issuance or delivery of the Right Certificates or of
any shares of Series A Preferred Stock issued or delivered upon the exercise of
Rights. The Company shall not, however, be required to pay any Transfer Tax
which may be payable in respect of any transfer or delivery of a Right
Certificate to a Person other than, or the issuance or delivery of certificates
for Series A Preferred Stock upon exercise of Rights in a name other than that
of, the registered holder of
-20-
the Right Certificate, and the Company shall not be required to issue or deliver
a Right Certificate or certificate for Series A Preferred Stock to a Person
other than such registered holder until any such Transfer Tax shall have been
paid (any such Transfer Tax being payable by the holder of such Right
Certificate at the time of surrender) or until it has been established to the
Company's satisfaction that no such Transfer Tax is due.
Section 10. SERIES A PREFERRED STOCK RECORD DATE. Each Person in
whose name any certificate for shares of Series A Preferred Stock is issued upon
the exercise of Rights shall for all purposes be deemed to have become the
holder of record of the Series A Preferred Stock represented thereby on, and
such certificate shall be dated as of, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the Exercise Price
(and any applicable Transfer Taxes) was made; PROVIDED, HOWEVER, that, if the
date of such surrender and payment is a date upon which the Series A Preferred
Stock transfer books of the Company are closed, such Person shall be deemed to
have become the record holder of such shares on, and such certificate shall be
dated as of, the next succeeding Business Day on which the Series A Preferred
Stock transfer books of the Company are open. Prior to the exercise of the
Rights evidenced thereby, the holder of a Right Certificate, as such, shall not
be entitled to any rights of a shareholder of the Company with respect to shares
for which the Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
Section 11. ADJUSTMENT OF EXERCISE PRICE OR NUMBER OF SHARES. The
Exercise Price, the number of shares which may be purchased upon exercise of a
Right and the number
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of Rights outstanding are subject to adjustment from time to time as provided in
this Section 11.
(a) (i) In the event the Company shall at any time after the date of
this Rights Agreement (A) declare or pay any dividend on Common Stock
payable in shares of Common Stock, (B) subdivide or split the
outstanding shares of Common Stock into a greater number of shares or
(C) combine or consolidate the outstanding shares of Common Stock into
a smaller number of shares or effect a reverse split of the
outstanding shares of Common Stock, then and in each such event the
number of shares of Series A Preferred Stock issuable upon the
exercise of a Right after the record date for such event (if one shall
have been established or, if not, after the date of such event) shall
be the number of shares of Series A Preferred Stock issuable
immediately prior to such event multiplied by a fraction the numerator
of which is the number of Rights outstanding immediately prior to such
event and the denominator of which is the number of Rights outstanding
immediately after such event and the Exercise Price after such event
shall be the Exercise Price in effect immediately prior to such event
multiplied by such fraction. If an event occurs which would require
an adjustment under both this Section 11(a)(i) and Section 11(a)(ii)
hereof, the adjustment provided for in this Section 11(a)(i) shall be
in addition to, and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii).
(ii) In the event that any Person (other than an Exempt Person),
alone or together with its Affiliates and Associates, shall become an
Acquiring Person,
-22-
except pursuant to a transaction approved in advance by a majority of
the Continuing Directors provided the Continuing Directors constitute
a majority of the Board of Directors (the "Trigger Event"), then,
within ten days after occurrence of the Trigger Event, proper
provision shall be made so that each holder of a Right, except as
provided in Section 7(e) hereof, shall thereafter have a right to
receive for each Right, upon exercise thereof in accordance with the
terms of this Rights Agreement and payment of the Exercise Price, the
greater of (1) the number of shares of Series A Preferred Stock for
which such Right was exercisable immediately prior to such event or
(2) such number of shares of Series A Preferred Stock, based on the
Fair Market Value of the Series A Preferred Stock (determined pursuant
to Section 11(b) hereof) on the date of the occurrence of such event,
having a value equal to twice the Exercise Price; PROVIDED, HOWEVER,
that if the transaction that would otherwise give rise to the
foregoing adjustment is also subject to the provisions of Section 13
hereof, then only the provisions of Section 13 hereof shall apply and
no adjustment shall be made pursuant to this Section 11(a)(ii).
(iii) In the event that the Company does not have available
sufficient authorized but unissued Series A Preferred Stock to permit
the adjustments required pursuant to the foregoing subparagraph (i) or
the exercise in full of the Rights in accordance with the foregoing
subparagraph (ii), the Company shall take all such action as may be
necessary to authorize and reserve for issuance such number of
additional shares of Series A Preferred Stock as may from time to
-23-
time be required to be issued upon the exercise in full of all Rights
from time to time outstanding and, if necessary, shall use its best
efforts to obtain shareholder approval thereof. In lieu of issuing
shares of Series A Preferred Stock in accordance with the foregoing
subparagraphs (i) and (ii), the Company may, if a majority of the
Continuing Directors determines that such action is necessary or
appropriate and not contrary to the interests of holders of Rights,
elect to issue or pay, upon the exercise of the Rights, cash,
property, shares of Series A Preferred or Common Stock, or any
combination thereof, having an aggregate Fair Market Value equal to
the Fair Market Value of the shares of Series A Preferred Stock which
otherwise would have been issuable pursuant to Section 11(a)(ii),
which Fair Market Value shall be determined by an investment banking
firm selected by a majority of the Continuing Directors. For purposes
of the preceding sentence, the Fair Market Value of the Series A
Preferred Stock shall be as determined pursuant to Section 11(b).
Subject to Section 23 hereof, any such election by a majority of the
Continuing Directors of the Company must be made and publicly
announced within thirty (30) days after the date on which the event
described in Section 11(a)(ii) occurs.
(b) For the purpose of this Rights Agreement, the "Fair Market Value"
of any share of Series A Preferred Stock, Common Stock or any other stock or any
Right or other security or any other property on any date shall be determined as
provided in this Section 11(b). In the case of a publicly-traded stock or other
security, the Fair Market Value on any date shall be deemed to be the average of
the daily closing prices per share of such stock or
-24-
per unit of such other security for the 30 consecutive Trading Days (as such
term is hereinafter defined) immediately prior to such date; PROVIDED, HOWEVER,
that in the event that the Fair Market Value per share of any share of Common
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
such stock payable in shares of Common Stock or securities convertible into
shares of Common 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 Company 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 securities 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 such security is listed or admitted to trading; or, if 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 NASDAQ/NMS or such other system then
in use; or, if no bids for such security are 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 such security selected by the Board of Directors
of the Company. The term "Trading Day" shall mean a day on which the principal
national securities exchange on
-25-
which such security is listed or admitted to trading is open for the transaction
of business or, if such security is not listed or admitted to trading on any
national securities exchange, a Business Day. If a security is not publicly
held or not so listed or traded, "Fair Market Value" shall mean the fair value
per share of stock or per other unit of such other security, as determined by an
independent investment banking firm experienced in the valuation of securities
selected in good faith by the Board of Directors of the Company, or, if no such
investment banking firm is, in the good faith judgment of the Board of
Directors, available to make such determination, in good faith by the Board of
Directors of the Company; PROVIDED, HOWEVER, that for purposes of making the
adjustment provided for by Section 11(a)(ii) hereof, the Fair Market Value of a
share of Series A Preferred Stock shall not be less than 100% of the product of
the Fair Market Value of a share of Common Stock multiplied by the higher of the
then "Dividend Multiple" or "Vote Multiple" applicable to the Series A Preferred
Stock (as such terms are defined in the Company's Articles of Incorporation) and
shall not exceed 105% of the product of the then Fair Market Value of a share of
Common Stock multiplied by the higher of the then Dividend Multiple or Vote
Multiple applicable to the Series A Preferred Stock. In the case of property
other than securities, the "Fair Market Value" thereof shall be determined in
good faith by the Board of Directors of the Company based upon such appraisals
or valuation reports of such independent experts as the Board of Directors of
the Company shall in good faith determine to be appropriate in accordance with
good business practices and the interests of the holders of Rights. Any such
determination of Fair Market Value shall be described in a statement filed with
the Rights Agent and shall be binding upon the Rights Agent.
-26-
(c) All calculations under this Section 11 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
(d) Irrespective of any adjustment or change in the Exercise Price or
the number of shares of Series A Preferred Stock issuable upon the exercise of
the Rights, the Right Certificates theretofore and thereafter issued may
continue to express the Exercise Price and the number of shares to be issued
upon exercise of the Rights as in the initial Right Certificates issued
hereunder but, nevertheless, shall represent the Rights as so adjusted.
(e) Before taking any action that would cause an adjustment reducing
the purchase price per whole share of Series A Preferred Stock upon exercise of
the Rights below the then par value, if any, of the shares of Series A Preferred
Stock, the Company shall use its best efforts to take any corporate action which
may, in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue fully paid and non-assessable shares of such Series A
Preferred Stock at such adjusted purchase price per share.
(f) Anything in this Section 11 to the contrary notwithstanding, in
the event of any reclassification of stock of the Company or any
recapitalization, reorganization or partial liquidation of the Company or
similar transaction, the Company shall be entitled to make such further
adjustments in the number of shares of Series A Preferred Stock which may be
acquired upon exercise of the Rights, and such adjustments in the purchase price
per share therefor, in addition to those adjustments expressly required by the
other paragraphs of this Section 11, as the Board of Directors of the Company
shall determine to be necessary or appropriate in order for the holders of the
Rights in such event to be treated equitably and in accordance with the purpose
and intent of this Rights Agreement or in order that any such
-27-
event shall not, but for such adjustment, in the opinion of counsel to the
Company, result in the shareholders of the Company being subject to any United
States federal income tax liability by reason thereof.
(g) In the event the Company shall at any time after the Record Date
make any distribution on the shares of Common Stock of the Company, whether by
way of a dividend or a reclassification of stock, a recapitalization,
reorganization or partial liquidation of the Company or otherwise, in cash or
any debt security, debt instrument, real or personal property or any other
property (other than any shares of Common Stock or other capital stock of the
Company and other than any right or warrant to acquire any such shares,
including any debt security convertible into or exchangeable for any such share,
at less than the Fair Market Value of such shares) and the amount of such cash
dividend or the Fair Market Value of such debt security, debt instrument or
property exceeds 150% of the aggregate amount of the cash dividends declared or
paid on the Common Stock of the Company in the 15-month period immediately
preceding such distribution, then and in each such event, unless such
distribution is part of or is made in connection with a transaction to which
Section 11(a)(ii) or Section 13 hereof applies, the Exercise Price shall be
reduced by an amount equal to the cash or the Fair Market Value of such
distribution, as the case may be, per share of Common Stock of the Company. For
purposes hereof, the Fair Market Value of any property distributed to the
holders of shares of Common Stock of the Company shall be the Fair Market Value
of such property as determined by an independent investment banking firm
experienced in the valuation of securities or the other property so distributed,
as the case may be, selected in good faith by the Board of Directors of the
Company, or, if no such investment banking firm is in the good
-28-
faith judgment of the Board of Directors available to make such determination,
in good faith by the Board of Directors of the Company, whose determination
shall be final and binding on the Company, the Rights Agent and the holders of
Rights.
Section 12. CERTIFICATION OF ADJUSTED EXERCISE PRICE OR NUMBER OF
SHARES. Whenever an adjustment is made as provided in Section 11, 13 or 23(c),
the Company shall (a) promptly prepare a certificate setting forth such
adjustment, and a brief statement of the facts giving rise to such adjustment,
(b) promptly file with the Rights Agent and with each transfer agent for the
Series A Preferred Stock a copy of such certificate and (c) mail a brief summary
thereof to each holder of a Right Certificate in accordance with Section 25.
Notwithstanding the foregoing sentence, the failure of the Company to make such
certification or give such notice shall not affect the validity of or the force
or effect of the requirement for such adjustment. Any adjustment to be made
pursuant to Section 11, 13 or 23(c) of this Rights Agreement shall be effective
as of the date of the event giving rise to such adjustment. The Rights Agent
shall be fully protected in relying on any such certificate and on any
adjustment therein contained and shall not be deemed to have knowledge of any
adjustment unless and until it shall have received such certificate.
Section 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNING POWER.
(a) Except pursuant to a transaction approved in advance by a
majority of the Continuing Directors, in the event that, at any time on or after
the Distribution Date, (x) the Company shall, directly or indirectly,
consolidate with, or merge with and into, any other Person or Persons (other
than an Exempt Person) and the Company shall not be the surviving
-29-
or continuing corporation of such consolidation or merger, or (y) any Person or
Persons (other than an Exempt Person) shall, directly or indirectly, consolidate
with, or merge with and into, the Company, and the Company shall be the
continuing or surviving corporation of such consolidation or merger and, in
connection with such consolidation or merger, all or part of the outstanding
shares of Common Stock shall be changed into or exchanged for stock or other
securities of any other Person (other than an Exempt Person) or of the Company
or cash or any other property, or (z) the Company or one or more of its
Subsidiaries shall, directly or indirectly, sell or otherwise transfer to any
other Person or any Affiliate or Associate of such Person, in one or more
transactions, or the Company or one or more of its Subsidiaries shall sell or
otherwise transfer to any Persons in one or a series of related transactions,
assets or earning power aggregating more than 50% of the assets or earning power
of the Company and its Subsidiaries (taken as a whole), then, on the first
occurrence of any such event, proper provision shall be made so that (i) each
holder of record of a Right shall thereafter have the right to receive, upon the
exercise thereof and payment of the Exercise Price in accordance with the terms
of this Rights Agreement, such number of shares of validly issued, fully paid
and non-assessable Common Stock of the Principal Party (as defined herein) as
shall, based on the Fair Market Value of the Common Stock of the Principal Party
on the date of consummation of such consolidation, merger, sale or transfer,
equal to twice the Exercise Price; (ii) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such consolidation, merger, sale or
transfer, all the obligations and duties of the Company pursuant to this Rights
Agreement; (iii) the term "Company" for all purposes of this Rights Agreement
shall thereafter be deemed to refer to such Principal Party; and (iv) such
Principal Party shall take such steps
-30-
(including, but not limited to, the reservation of a sufficient number of shares
of its Common Stock in accordance with the provisions of Section 9 hereof
applicable to the reservation of Series A Preferred Stock) in connection with
such consummation as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to its
shares of Common Stock thereafter deliverable upon the exercise of the Rights;
PROVIDED, HOWEVER, that, upon the subsequent occurrence of any merger,
consolidation, sale of all or substantially all of the assets, recapitalization,
reclassification of shares, reorganization or other extraordinary transaction in
respect of such Principal Party, each holder of a Right shall thereupon be
entitled to receive, upon exercise of a Right and payment of the Exercise Price,
such cash, shares, rights, warrants and other property which such holder would
have been entitled to receive had it, at the time of such transaction, owned the
shares of Common Stock of the Principal Party purchasable upon the exercise of a
Right, and such Principal Party shall take such steps (including, but not
limited to, reservation of shares of stock) as may be necessary to permit the
subsequent exercise of the Rights in accordance with the terms hereof for such
cash, shares, rights, warrants and other property.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in (x) or (y) of
the first sentence of Section 13(a) hereof: (A) the Person that is the issuer
of the securities into which shares of Common Stock of the Company are converted
in such merger or consolidation, or, if there is more than one such issuer, the
issuer of the Common Stock of which has the greatest market value or (B) if no
securities are so issued, (x) the Person that is the other party to the merger
or consolidation and that survives such merger or consolidation, or, if there is
more
-31-
than one such Person, the Person the Common Stock of which has the greatest
market value or (y) if the Person that is the other party to the merger or
consolidation does not survive the merger or consolidation, the Person that does
survive the merger or consolidation (including the Company if it survives); and
(ii) in the case of any transaction described in (z) of the first
sentence in Section 13(a), the Person that is the party receiving the greatest
portion of the assets or earning power transferred pursuant to such transaction
or transactions, or, if each Person that is a party to such transaction or
transactions receives the same portion of the assets or earning power so
transferred or if the Person receiving the greatest portion of the assets or
earning power cannot be determined, whichever of such Persons as is the issuer
of Common Stock having the greatest market value of shares outstanding;
PROVIDED, HOWEVER, that in any such case, if the Common Stock of such Person is
not at such time and has not been continuously over the preceding 12-month
period registered under Section 12 of the Exchange Act, and such Person is a
direct or indirect Subsidiary of another Person the Common Stock of which is and
has been so registered, the term "Principal Party" shall refer to such other
Person, or if such Person is a Subsidiary, directly or indirectly, of more than
one Person, the Common Stocks of all of which are and have been so registered,
the term "Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest market value of shares
outstanding.
(c) The Company shall not consummate any consolidation, merger or
sale or transfer of assets or earning power referred to in Section 13(a) unless
prior thereto the Company and the Principal Party involved therein shall have
executed and delivered to the
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Rights Agent an agreement confirming that the Principal Party shall, upon
consummation of such consolidation, merger or sale or transfer of assets or
earning power, assume this Rights Agreement in accordance with Sections 13(a)
and (b) hereof and that all rights of first refusal or preemptive rights in
respect of the issuance of shares of Common Stock of the Principal Party upon
exercise of outstanding Rights have been waived and that such transaction shall
not result in a default by the Principal Party under this Rights Agreement, and
further providing that, as soon as practicable after the date of any
consolidation, merger or sale or transfer of assets or earning power referred to
in Section 13(a) hereof, the Principal Party will:
(i) prepare and file a registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Rights and the securities purchasable upon exercise
of the Rights on an appropriate form, use its best efforts to cause
such registration statement to become effective as soon as
practicable after such filing and use its best efforts to cause such
registration statement to remain effective (with a prospectus at all
times meeting the requirements of the Securities Act) until the date
of expiration of the Rights, and similarly comply with applicable
state securities laws;
(ii) use its best efforts to list (or continue the listing of)
the Rights and the securities purchasable upon exercise of the
Rights on a national securities exchange or to meet the eligibility
requirements for quotation on the American Stock Exchange; and
-33-
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party which comply in all respects
with the requirements for registration on Form 10 (or any successor
form) under the Exchange Act.
In the event that any of the transactions described in Section 13(a) hereof
shall occur at any time after the occurrence of a transaction described in
Section 11(a)(ii) hereof, the Rights which have not theretofore been exercised
shall, subject to the provisions of Section 7(e) hereof, thereafter be
exercisable in the manner described in Section 13(a) (without taking into
account any prior adjustment required by Section 11(a)(ii)).
Section 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue fractions of Rights or
to distribute Right Certificates which evidence fractional Rights (i.e., Rights
to acquire less than one one-hundredth of a share of Series A Preferred Stock),
unless such fractional Rights result from a transaction referred to in Section
11(a)(i) hereof. If the Company shall determine not to issue such fractional
Rights, then, in lieu of such fractional Rights, there shall be paid to the
holders of record of the Right Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal to the same fraction
of the Fair Market Value of a whole Right.
(b) The Company shall not be required to issue fractions of shares of
Series A Preferred Stock (other than fractions which are integral multiples of
one-hundredth of a share) upon exercise of the Rights or to distribute
certificates which evidence fractional shares (other than fractions which are
integral multiples of one-hundredth of a share). In lieu of issuing
-34-
fractions of shares of Series A Preferred Stock, the Company may, at its
election, issue depositary receipts evidencing fractions of shares pursuant to
an appropriate agreement between the Company and a depositary selected by it,
provided that such agreement shall provide that the holders of such depositary
receipts shall have all of the rights, privileges and preferences to which they
would be entitled as owners of the Series A Preferred Stock. With respect to
fractional shares that are not integral multiples of one-hundredth of a share,
if the Company does not issue such fractional shares or depositary receipts in
lieu thereof, there shall be paid to the holders of record of Right Certificates
at the time such Right Certificates are exercised as herein provided an amount
in cash equal to the same fraction of the Fair Market Value of a share of Series
A Preferred Stock.
(c) The holder of a Right by the acceptance of a Right expressly
waives his right to receive any fractional Right or any fractional shares (other
than fractions which are integral multiples of one-hundredth of a share) upon
exercise of a Right.
Section 15. RIGHTS OF ACTION. All rights of action in respect of
this Rights Agreement, except the rights of action given to the Rights Agent in
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the holders of record of the
Common Stock); and any holder of record of any Right Certificate (or, prior to
the Distribution Date, of the Common Stock), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Right Certificate
-35-
in the manner provided in such Right Certificate and in this Rights Agreement.
Without limiting the foregoing or any remedies available to the holders of
Rights, it is specifically acknowledged that the holders of Rights would not
have an adequate remedy at law for any breach of this Rights Agreement and will
be entitled to specific performance of the obligations under, and injunctive
relief against actual or threatened violations of, the obligations of any Person
subject to this Rights Agreement.
Section 16. AGREEMENT OF RIGHT HOLDERS. Each holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights shall be evidenced
(subject to the provisions of Section 3(b) hereof) by the certificates for
Common Stock registered in the name of the holders of the Common Stock
(which certificates for Common Stock shall also constitute certificates for
Rights) and not by separate Right Certificates, and each Right shall be
transferable only simultaneously and together with the transfer of shares
of Common Stock;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the principal office of the Rights Agent, duly endorsed or accompanied
by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the person in
whose name the Right Certificate (or, prior to the Distribution Date, the
associated Common Stock certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations
of ownership or writing on the Right Certificates
-36-
or the associated Common Stock certificate made by anyone other than the
Company or the Rights Agent) for all purposes whatsoever, and neither the
Company nor the Rights Agent shall be affected by any notice to the
contrary.
Section 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER. No
holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of Series A Preferred Stock or
any other securities which may at any time be issuable on the exercise of the
Rights represented thereby, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any Right Certificate, as
such, any of the rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to shareholders at any
meeting thereof (except as provided in Section 7(f) hereof), or to give or
withhold consent to any corporate action (except as provided in Section 7(f)
hereof), or to receive notice of meetings or other actions affecting
shareholders (except as provided in Section 24 hereof), or to receive dividends
or subscription rights, or otherwise, until the Right or Rights evidenced by
such Right Certificate shall have been exercised in accordance with the
provisions hereof.
Section 18. CONCERNING THE RIGHTS AGENT.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and counsel fees and
other disbursements incurred in the administration and execution of this Rights
Agreement and the exercise and performance of its duties hereunder. The Company
also agrees to indemnify the Rights Agent for, and to hold it harmless against,
any loss, liability, or expense, incurred without negligence, bad faith or
-37-
willful misconduct on the part of the Rights Agent, for anything done or omitted
to be done by the Rights Agent in connection with the acceptance and
administration of this Rights Agreement, including the cost and expenses of
defending against any claim of liability relating to the Rights or this Rights
Agreement.
(b) The Rights Agent shall be protected against, and shall incur no
liability for or in respect of, any action taken, suffered or omitted by it in
connection with its administration of this Rights Agreement in reliance upon any
Right Certificate or certificate for Series A Preferred Stock or for other
securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified or acknowledged, by
the proper person or persons.
(c) The Rights Agent shall only be responsible to act in accordance
with those express duties and obligations set forth herein.
(d) The Rights Agent shall not be required to expend its own funds
hereunder.
Section 19. MERGER OR CONSOLIDATION OF, OR CHANGE IN NAME OF, THE
RIGHTS AGENT.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any corporation succeeding to
the corporate trust or stock transfer business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent under
-38-
this Rights Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto, PROVIDED that such
corporation would be eligible for appointment as a successor Rights Agent under
the provisions of Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Rights Agreement any of the
Right Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of the predecessor Rights
Agent and deliver such Right Certificates so countersigned; and in case at that
time any of the Right Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Right Certificates either in the
name of the predecessor Rights Agent or in the name of the successor Rights
Agent; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall be changed
and at such time any of the Right Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Right Certificates so countersigned; in case at that time any
of the Right Certificates shall not have been countersigned, the Rights Agent
may countersign such Right Certificates either in its prior name or in its
changed name; in all such cases such Right Certificates shall have the full
force provided in the Right Certificates and in this Rights Agreement.
Section 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes only
those express duties and obligations set forth in this Rights Agreement, subject
to the following terms and conditions, by all of which the Company and the
holders of Right Certificates, by their acceptance thereof, shall be bound:
-39-
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action taken
or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Rights
Agreement the Rights Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect thereof
be herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman of the Board, the President
or any Vice President and by the Treasurer or the Secretary of the Company and
delivered to the Rights Agent. Any such certificate shall be full authorization
to the Rights Agent for any action taken or suffered in good faith by it under
the provisions of this Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Rights Agreement or in the
Right Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be deemed to
have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Rights Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certifi-
-40-
cate (except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Rights
Agreement or in any Right Certificate; nor shall it be responsible for any
adjustment required under the provisions of Section 11 or 13 hereof or
responsible for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such adjustment
(except with respect to the exercise of Rights evidenced by Right Certificates
after receipt of a certificate describing any such adjustment); nor shall it by
any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Series A Preferred Stock to be
issued pursuant to this Rights Agreement or any Right Certificate or as to
whether any shares of Series A Preferred Stock will, when issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of the Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the President or any Vice President or the Secretary or
the Treasurer of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be liable for any
action taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer.
-41-
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not the Rights
Agent under this Rights Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Company or for any other legal
entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the selection
and continued employment thereof.
Section 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Rights Agreement upon 30 days' notice in writing mailed to the Company and to
each transfer agent of the Common Stock and the Series A Preferred Stock by
registered or certified mail. The Company may remove the Rights Agent or any
successor Rights Agent (with or without cause) upon 30 days' notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the case may be, and to
each transfer agent of the Common Stock and the Series A Preferred Stock by
registered or certified mail. If the Rights Agent shall resign or be removed or
shall otherwise become incapable of acting, the Company shall appoint a
successor to the Rights Agent. Notwithstanding the foregoing provisions of this
Section 21, in no event shall the resignation
-42-
or removal of a Rights Agent be effective until a successor Rights Agent shall
have been appointed and have accepted such appointment. If the Company shall
fail to make such appointment within a period of 30 days after such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Right Certificate
(who shall, with such notice, submit his Right Certificate for inspection by the
Company), then the incumbent Rights Agent or the holder of record of any Right
Certificate may apply to any court of competent jurisdiction for the appointment
of a new Rights Agent. Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be (a) a corporation organized and doing
business under the laws of the United States or of any state thereof, in good
standing, which is authorized under such laws to exercise corporate trust or
stock transfer powers and is subject to supervision or examination in the
conduct of its corporate trust or stock transfer business by federal or state
authorities and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $5,000,000 or (b) an Affiliate
controlled by a corporation described in clause (a) of this sentence. After
appointment, the successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights
Agent without further act or deed, but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the time held
by it hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of any
such appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Stock and Series
A Preferred Stock, and mail a notice thereof in writing by mail to the
registered holders of the
-43-
Right Certificates. Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be. Notwithstanding the foregoing provisions, in
the event of resignation, removal or incapacity of the Rights Agent, the Company
shall have the authority to act as the Rights Agent until a successor Rights
Agent shall have assumed the duties of the Rights Agent hereunder.
Section 22. ISSUANCE OF NEW RIGHT CERTIFICATES. Notwithstanding any
of the provisions of this Rights Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right Certificates evidencing Rights in
such form as may be approved by its Board of Directors to reflect any adjustment
or change in the Exercise Price per share and the number or kind or class of
shares of stock or other securities or property purchasable under the Right
Certificates made in accordance with the provisions of this Rights Agreement.
Section 23. REDEMPTION.
(a) The Board of Directors of the Company may, at its option, redeem
all but not less than all the then outstanding Rights, at any time prior to the
close of business on the earlier of (i) the tenth day following the Stock
Acquisition Date (or such later date as a majority of the Continuing Directors
in office may determine) or (ii) the Final Expiration Date, at a redemption
price of $.01 per Right, subject to adjustments as provided in subsection (c)
below (the "Redemption Price"). Notwithstanding anything contained in this
Agreement to the contrary, the Rights shall not be exercisable pursuant to
Section 11(a)(ii) prior to the expiration of the Company's right of redemption
hereunder.
-44-
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights, and without any further action
and without any notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to receive the
Redemption Price. Within 10 days after the action of the Board of Directors
ordering the redemption of the Rights, the Company shall give notice of such
redemption to the holders of the then outstanding Rights by mailing such notice
to all such holders at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on the registry
books of the transfer agent for the Common Stock. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each notice of redemption will state the method by which
the payment of the Redemption Price will be made.
(c) In the event the Company shall at any time after the date of this
Rights Agreement (A) pay any dividend on Common Stock in shares of Common Stock,
(B) subdivide or split the outstanding shares of Common Stock into a greater
number of shares or (C) combine or consolidate the outstanding shares of Common
Stock into a smaller number of shares or effect a reverse split of the
outstanding shares of Common Stock, then and in each such event the Redemption
Price shall be adjusted so that the Redemption Price after such event shall
equal the Redemption Price 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 outstanding immediately prior to such event;
PROVIDED, HOWEVER, that in each case such
-45-
adjustment to the Redemption Price shall be made only if the amount of the
Redemption Price shall be reduced or increased by $.01 per Right.
Section 24. NOTICE OF PROPOSED ACTIONS.
(a) In case the Company, after the Distribution Date, shall propose
(i) to effect any of the transactions referred to in Section 11(a)(i) or to pay
any dividend to the holders of record of its Common Stock payable in stock of
any class or to make any other distribution to the holders of record of its
Common Stock (other than a regular periodic cash dividend at a rate not in
excess of 150% of the rate of the last cash dividend theretofore paid), or (ii)
to offer to the holders of record of its Common Stock options, warrants, or
other rights to subscribe for or to purchase shares of Common Stock (including
any security convertible into or exchangeable for Common Stock) or shares of
stock of any class or any other securities, options, warrants, convertible or
exchangeable securities or other rights, or (iii) to effect any reclassification
of its Series A Preferred Stock or Common Stock or any recapitalization or
reorganization of the Company, or (iv) to effect any consolidation or merger
with or into, or to effect any sale or other transfer (or to permit one or more
of its Subsidiaries to effect any sale or other transfer), in one or more
transactions, of more than 50% of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to, any other Person or Persons, or (v) to
effect the liquidation, dissolution or winding up of the Company, then, in each
such case, the Company shall give to each holder of record of a Right
Certificate, in accordance with Section 25, notice of such proposed action,
which shall specify the record date for the purposes of such transaction
referred to in Section 11(a)(i) or such dividend or distribution, or the date on
which such reclassification, recapitalization, reorganization, consolidation,
merger,
-46-
sale or transfer of assets, liquidation, dissolution, or winding up is to take
place and the record date for determining participation therein by the holders
of record of Common Stock or Series A Preferred Stock, if any such date is to be
fixed, and such notice shall be so given in the case of any action covered by
clause (i) or (ii) above at least 10 days prior to the record date for
determining holders of record of the Series A Preferred Stock for purposes of
such action, and in the case of any such other action, at least 10 days prior to
the date of the taking of such proposed action or the date or participation
therein by the holders of record of Common Stock or Series A Preferred Stock,
whichever shall be the earlier. The failure to give notice required by this
Section 24 or any defect therein shall not affect the legality or validity of
the action taken by the Company or the vote upon any such action.
(b) In case any of the transactions referred to in either Section
11(a)(i) or Section 13 of this Rights Agreement are proposed, then, in any such
case, the Company shall give to each holder of Rights, in accordance with
Section 25 hereof, notice of the proposal of such transaction at least 10 days
prior to consummating such transaction, which notice shall specify the proposed
event and the consequences of the event to holders of Rights under Section
11(a)(i) or Section 13 hereof, as the case may be, and, upon consummating such
transaction, shall similarly give notice thereof to each holder of Rights.
Section 25. NOTICES. Notices or demands authorized by this Rights
Agreement to be given or made by the Rights Agent or by the holder of record of
any Right Certificate or Right to or on the Company shall be sufficiently given
or made if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Rights Agent) as follows:
-47-
HEICO Corporation
3000 Taft Street
Hollywood, Florida 33301
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or demand authorized by this
Rights Agreement to be given or made by the Company or by the holder of record
of any Right Certificate or Right to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as
follows:
Sun Bank, National Association
Corporate Trust Department
225 East Robinson Street
Suite 350
Orlando, Florida 32801
Notices or demands authorized by this Rights Agreement to be given or made by
the Company or the Rights Agent to the holder of record of any Right Certificate
or Right shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Company.
Section 26. SUPPLEMENTS AND AMENDMENTS. The Company and the Rights
Agent, if the Company so directs, may from time to time supplement or amend this
Rights Agreement without the approval of any holders of Right Certificates (i)
in order to cure any ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent with any other
provisions herein, (iii) prior to the Distribution Date, to otherwise amend or
supplement in any respect any provision herein which the Company may deem
necessary or desirable, or (iv) subsequent to the Distribution Date, to amend or
supplement in any respect any provision herein which the Company may deem
necessary or desirable and
-48-
which shall not adversely affect the interest of the holders of Rights (other
than an Acquiring Person or any Affiliate or Associate of an Acquiring Person),
PROVIDED, HOWEVER, that this Agreement may be amended or supplemented following
the Distribution Date only with the approval of a majority of the Continuing
Directors and only if the Continuing Directors constitute a majority of the
number of directors then in office. This Agreement may be amended or
supplemented at any time with the approval of a majority of the registered
holders of the Right Certificates (and, prior to the Distribution Date, the
Common Stock).
Section 27. SUCCESSORS. All of the covenants and provisions of this
Rights Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 28. BENEFITS OF THIS RIGHTS AGREEMENT. Nothing in this
Rights Agreement shall be construed to give to any person or corporation other
than the Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Stock) any legal
or equitable right, remedy or claim under this Rights Agreement; but this Rights
Agreement shall be for the sole and exclusive benefit of the Company, the Rights
Agent and the holders of record of the Right Certificates (and, prior to the
Distribution Date, the Common Stock).
Section 29. FLORIDA CONTRACT. This Rights Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Florida and for all purposes shall be governed by and
construed and enforced in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state.
-49-
Section 30. COUNTERPARTS. This Rights Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 31. DESCRIPTIVE HEADINGS. Descriptive headings of the
several Sections of this Rights Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
Section 32. SEVERABILITY. If any term, provision, covenant or
restriction of this Rights Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Rights
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed, all as of the day and year first above written.
HEICO CORPORATION
By: /s/ Thomas S. Irwin
Title: Executive Vice President
SUN BANK, NATIONAL ASSOCIATION
By: /s/ [ILLEGIBLE]
Title: Vice President
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EXHIBIT A
ARTICLES OF AMENDMENT
OF
HEICO CORPORATION
The undersigned, being a Director HEICO CORPORATION, a Florida corporation
(the "Corporation"), does hereby file these Articles of Amendment to the
Corporation's Articles of Incorporation, pursuant to Sections 607.1006 and
607.0602 of the Florida Business Corporation Act.
1. The name of the Corporation is HEICO CORPORATION.
2. Article III of the Corporation's Articles of Incorporation shall be amended
by adding a new Section (e) thereto, to read as follows:
"(e) SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
(1) DESIGNATION AND AMOUNT. 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 share 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 share 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 share 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 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 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
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) 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
-2-
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
shares 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
-3-
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
-4-
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
-5-
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 Sun Bank, 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
-6-
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 as 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 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 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.
-7-
(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
Vote 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
-8-
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 be 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
-9-
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 occurs.
(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.
-10-
(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."
3. The foregoing amendment was adopted by the Board of Directors on November
2, 1993. A vote of shareholders of the Corporation was not needed for the
adoption of these Articles of Amendment.
IN WITNESS WHEREOF, the undersigned Director of the Corporation has
executed these Articles of Amendment on November 3, 1993.
HEICO CORPORATION
__________________________________
Laurans A. Mendelson
Chairman of the Board of Directors
-11-
EXHIBIT B
HEICO CORPORATION
SUMMARY OF RIGHTS TO PURCHASE
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
On November 2, 1993, the Board of Directors of HEICO CORPORATION (the
"Company") declared a dividend distribution of one Preferred Stock Purchase
Right for each outstanding share of common stock, par value $0.01 per share (the
"Common Stock"), of the Company. The distribution is payable as of November 12,
1993 to shareholders of record on that date. Each Right entitles the registered
holder to purchase from the Company one one-hundredth (1/100th) of a share of
preferred stock of the Company, designated as Series A Junior Participating
Preferred Stock (the "Series A Preferred Stock") at a price of $45 per one one-
hundredth (1/100th) of a share of Series A Preferred Stock (the "Purchase
Price"). The description and terms of the Rights are set forth in a Rights
Agreement, dated as of November 2, 1993 (the "Rights Agreement") between the
Company and Sun Bank, National Association, as Rights Agent (the "Rights
Agent").
AS DISCUSSED BELOW, INITIALLY THE RIGHTS WILL NOT BE EXERCISABLE,
CERTIFICATES WILL NOT BE SENT TO SHAREHOLDERS AND THE RIGHTS WILL AUTOMATICALLY
TRADE WITH THE COMMON STOCK.
Until the close of business on the tenth day (or such later date as
may be determined by action of the Board of Directors) after the earlier to
occur of (i) a public announcement that a person or group of affiliated or
associated persons has acquired beneficial ownership of 15% or more of the
Company's voting stock ("Acquiring Person"), except that Acquiring Person shall
not include (A) the Company, (B) any subsidiary of the Company, (C) any employee
benefit plan or employee stock plan of the Company or of any subsidiary of the
Company, (D) any person whose ownership of 15% or more of the shares of voting
stock of the Company then outstanding results from a transaction or transactions
approved by the Continuing Directors (as defined in the Rights Agreement) and
effected before such person acquires such 15% beneficial ownership (provided
that such person shall become an Acquiring Person upon his acquisition of an
additional 1% of the Company's voting stock unless otherwise approved by the
Continuing Directors), (E) any person whose beneficial ownership of shares of
voting stock of the Company is increased to 15% or more of the shares of voting
stock of the Company then outstanding solely by reason of a reduction in the
number of issued and outstanding shares of voting stock of the Company pursuant
to a transaction or transactions approved by the Continuing Directors of the
Company (provided that such person shall become an Acquiring Person upon his
acquisition of an additional 1% of the Company's voting stock unless otherwise
approved by the Continu-
ing Directors), (F) any person whose owner ship of 15% or more of the shares of
voting stock of the Company then outstanding results from any action or
transaction deemed by a resolution of the Continuing Directors of the Company
not to cause such person to become an Acquiring Person which resolution is
passed prior to such person otherwise becoming an Acquiring Person (provided
such person shall become an Acquiring Person upon his acquisition of an
additional 1% of the Company's voting stock unless otherwise approved by the
Continuing Directors), (G) any person who on the date of the Rights Agreement
owned 15% or more of the shares of voting stock of the Company then outstanding
(provided such person shall become an Acquiring Person upon his acquisition of
an additional 1% of the Company's voting stock unless such acquisition is from
the Company or is the result of his holding conversion rights, exchange rights,
other rights (other than the Rights), warrants or options acquired from the
Company), or (H) any person who shares of voting stock are acquired from the
Company, or (ii) the date of the commencement or announcement of a person's or
group's intention to commence a tender or exchange offer (other than a tender or
exchange offer by the Company, any subsidiary of the Company, or any employee
benefit plan of the Company or of any subsidiary of the Company) whose
consummation would result in the ownership of 30% or more of the outstanding
shares of Common Stock of the Company, even if no purchases actually occur
pursuant to such offer (the earlier of such dates being called the "Distribution
Date"), the Rights will be evidenced, with respect to any of the Common Stock
certificates outstanding as of November 12, 1993, by such Common Stock
certificate with a copy of this Summary of Rights attached thereto. Voting
stock of the Company owned by any person and acquired by such person from
Company or deemed to be beneficially owned by such person pursuant to the
exercise or holding of conversion rights, exchange rights, other rights (other
than the Rights), warrants or options acquired from the Company is excluded in
determining whether such person has acquired 15% or more of the outstanding
voting stock. The Rights Agreement provides that, until the Distribution Date,
the Rights will be represented by and transferred with, and only with, the
Common Stock. Until the Distribution Date (or earlier redemption or expiration
of the Rights), new Common Stock certificates issued after November 12, 1993
will contain a legend incorporating the Rights Agreement by reference. Until
the Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any of the Common Stock certificates outstanding as of
November 12, 1993, with or without a copy of this Summary of Rights attached
thereto, will also constitute the transfer of the Rights associated with the
Common Stock represented by such certificate. As soon as practicable following
the Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Common Stock as of the
close of business on the Distribution Date and such separate certificates alone
will evidence the Rights from and after the Distribution Date.
-2-
The Rights are not exercisable until the Distribution Date. The
Rights will expire at the close of business on November 2, 2003, unless earlier
redeemed by the Company as described below.
The Series A Preferred Stock is nonredeemable and, unless otherwise
provided in connection with the creation of a subsequent series of preferred
stock, subordinate to any other series of the Company's preferred stock. Series
A Preferred Stock may not be issued except upon exercise of Rights. Each share
of Series A Preferred Stock will be entitled to receive when, as and if
declared, a quarterly dividend in an amount equal to the greater of $.75 per
share or 100 times the cash dividends declared on a share of Common Stock. In
the event that any preferential cash dividends to which the holders of any
current or future series of the Company's preferred stock, including the Series
A Preferred Stock, are entitled has accrued for four or more quarterly dividend
payment periods, whether consecutive or not, and shall not have been declared
and paid (or a sum sufficient for the payment thereof shall not have been set
aside) in full, the holders of such series of preferred stock shall have the
right, acting as a single voting group to elect two directors to the Company's
Board of Directors and to continue to have two directors on the Board of
Directors for so long as any such dividends remain unpaid (or a sum sufficient
for the payment thereof has not been set aside) in full.
In addition, each share of Series A Preferred Stock is entitled to 100
times any non-cash dividends (other than dividends payable in equity securities)
declared on each share of Common Stock, in like kind. In the event of the
liquidation of the Company, the holders of the Series A Preferred Stock will be
entitled to receive a liquidation payment in an amount equal to the greater of
$45 per one one-hundredth share or 100 times the payment made per share of
Common Stock. Each share of Series A Preferred Stock will have 100 votes,
voting together with the Common Stock. In the event of any merger,
consolidation or other transaction in which Common Stock is exchanged, each
share of Series A Preferred Stock will be entitled to receive 100 times the
amount received per share of Common Stock. The rights of the Series A Preferred
Stock as to dividends, liquidation and voting are protected by anti-dilution
provisions.
The number of shares of Series A Preferred Stock issuable upon
exercise of the Rights are subject to certain adjustments from time to time in
the event of a stock dividend on, or a subdivision or combination of, the Common
Stock. The Purchase Price is subject to adjustment in the event of
extraordinary distributions of cash or other property to holders of Common
Stock.
Unless the Rights are earlier redeemed or the transaction is approved
by the Continuing Directors, in the event that, after the Rights have become
exercisable,
-3-
the Company were to be acquired in a merger or other business combination (in
which any shares of the Common Stock are changed into or exchanged for other
securities or assets) or more than 50% of the assets or earning power of the
Company and its subsidiaries (taken as a whole) were to be sold or transferred
in one or a series of related transactions, the Rights Agreement provides that
proper provision will be made so that each holder of record of a Right will,
from and after such date, have the right to receive, upon payment of the
Purchase Price, that number of shares of common stock of the acquiring company
having a market value at the time of such transaction equal to two times the
Purchase Price. In addition, unless the Rights are earlier redeemed or the
transaction is approved by the Continuing Directors, in the event that a person
or group, with certain exceptions, becomes the beneficial owner of 15% or more
of the Company's voting stock, the Rights Agreement provides that proper
provisions will be made so that each holder of record of a Right, other than the
Acquiring Person (whose Rights will thereupon become null and void), will
thereafter have the right to receive, upon payment of the Purchase Price, that
number of shares of the Series A Preferred Stock having a market value at the
time of the transaction equal to two times the Purchase Price.
Fractions of shares of Series A Preferred Stock may, at the election
of the Company, be evidenced by depositary receipts. The Company may also issue
cash in lieu of fractional shares which are not integral multiples of one-
hundredth of a share.
At any time on or prior to the close of business on the earlier of (i)
the tenth day after a public announcement that a person has become an Acquiring
Person (or such later date as a majority of the Continuing Directors may
determine) or (ii) November 2, 2003, the Company may redeem the Rights in whole,
but not in part, at a price of $.01 per Right (the "Redemption Price").
Immediately upon the action of the Board of Directors of the Company authorizing
redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the Redemption Price.
Until a Right is exercised, the holder, as such, will have no rights
as a shareholder of the Company, including, without limitation, the right to
vote or to receive dividends, except that the Company's Articles of
Incorporation may not be amended so as to adversely affect the rights,
preferences and limitations of the Series A Preferred Stock without approval of
(i) the holders of the then outstanding Rights and (ii) the holders of the then
outstanding shares of Series A Preferred Stock. Such approval shall be by a
two-thirds vote, 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
-4-
holder of each Right shall have one one-hundredth of a vote with respect to each
such amendment.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A dated
November __, 1993. A copy of the Rights Agreement is available free of charge
from the Secretary of the Company. This summary description of the Rights does
not purport to be complete and is qualified in its entirety by reference to the
Rights Agreement which is incorporated in this summary description by reference.
-5-
EXHIBIT C
[Form of Right Certificate]
Certificate No. W- _________ Rights
NOT EXERCISABLE AFTER NOVEMBER 2, 2003 OR EARLIER IF
REDEEMED. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT
THE OPTION OF THE CORPORATION AND UNDER CERTAIN
OTHER CIRCUMSTANCES, AT $.01 PER RIGHT ON THE TERMS
SET FORTH OR REFERRED TO IN THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY
OWNED BY AN ACQUIRING PERSON OR ANY AFFILIATE OR
ASSOCIATE THEREOF (AS DEFINED IN THE RIGHTS AGREE-
MENT) MAY BECOME NULL AND VOID. [THE BENEFICIAL
OWNER OF THE RIGHTS REPRESENTED BY THIS RIGHT CERTIF-
ICATE IS AN ACQUIRING PERSON OR AN AFFILIATE OR ASSO-
CIATE OF AN ACQUIRING PERSON. ACCORDINGLY, THIS
RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY
MAY BE OR BECOME VOID IN THE CIRCUMSTANCES SPECIFIED
IN SECTION 7(e) OF THE RIGHTS AGREEMENT.]*
RIGHT CERTIFICATE
HEICO CORPORATION
This certifies that , or registered assigns,
is the registered owner of the number of Rights set forth above, each of which
entitled the owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement dated as of November 2, 1993 (the "Rights Agreement")
between HEICO CORPORATION, a Florida corporation (the "Company"), and Sun Bank,
National Association, a national banking association (the "Rights Agent"), to
purchase from the Company at any time after the Distribution (as such term is
defined in the Rights Agreement) and prior to 5:00 P.M. (Miami time) on November
2, 2003 at the office of the Rights Agent designated for such purpose, or its
successors as Rights Agent, one one-hundredth (1/100th) of a fully paid
nonassessable share of the Series A Junior Participating Preferred Stock (the
"Series A Preferred Stock") of the Company at a purchase price of $45, as the
same may from time to time be adjusted in accordance with the Rights Agreement
(the "Purchase Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed.
- -------------------------
* THE PORTION OF THE LEGEND IN BRACKETS SHALL BE INSERTED ONLY IF APPLICABLE
AND SHALL REPLACE THE PRECEDING SENTENCE.
As provided in the Rights Agreement, the Purchase Price and the number of
Series A Preferred Stock which may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to modification and adjustment
upon the happening of certain events and, upon the happening of certain events,
securities other than Series A Preferred Stock, or other property, may be
acquired upon exercise of the Rights evidenced by this Right Certificate, as
provided by the Rights Agreement.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
incorporated herein by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities of the Rights Agent,
the Company and the holders of record of the Right Certificates. Copies of the
Rights Agreement are on file at the principal executive office of the Company
and at the office of the Rights Agent designated for such purpose.
This Right Certificate, with or without other Right Certificates, upon
surrender at the office of the Rights Agent designated for such purpose, may be
exchanged for another Right Certificate or Right Certificates of like tenor and
date evidencing Rights entitling the holder of record to purchase a like
aggregate number of Series A Preferred Stock as the Rights evidenced by the
Right Certificate or Right Certificates surrendered shall have entitled such
holder to purchase. If this Right Certificate shall be exercised in part, the
holder shall be entitled to receive upon surrender thereof, another Right
Certificate or Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate may be redeemed by the Company at its option or under certain
other circumstances at a redemption price of $.01 per Right.
No fractional Series A Preferred Stock (other than fractions which are
integral multiples of one-hundredth of a share of Series A Preferred Stock) are
required to be issued upon the exercise of any Right or Rights evidenced hereby,
and in lieu thereof the Company may cause depositary receipts to be issued
and/or a cash payment may be made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to vote or
receive distributions or be deemed for any purpose the holder of Series A
Preferred Stock or of any other securities of the Company which may at any time
be issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a shareholder of the Company or any right to vote upon any
matter submitted to the shareholders of the Company
2
at any meeting thereof, or to give or withhold consent to any Company action or
to receive notice of meetings or other actions affecting shareholders of the
Company (except as provided in the Rights Agreement), or to receive
distributions or subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised as provided in the
Rights Agreement; PROVIDED, HOWEVER, that the Company's Articles of
Incorporation may not be amended so as to adversely affect the rights,
preferences and limitations of the Series A Preferred Stock without approval of
(i) the holders of the then outstanding Rights and (ii) the holders of the then
outstanding shares of Series A Preferred Stock. Such approval shall be by a
two-thirds vote, with the holders of the Rights and the holders of the Series A
Preferred Stock voting together as a single voting group; PROVIDED FURTHER,
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.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
IN WITNESS WHEREOF, the parties hereto have executed this Right Certificate
as of the ___ day of _______________ , _____ .
ATTEST: HEICO CORPORATION
___________________________ By: _____________________
Secretary Title: __________________
Countersigned:
SUN BANK, NATIONAL ASSOCIATION
By: ________________________
Authorized Signature
3
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificates.)
FOR VALUE RECEIVED __________________________________________________
hereby sells, assigns and transfers unto _____________________________________
______________________________________________________________________________
(Please print name and address of transferee)
______________________________________________________________________________
Rights evidenced by this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint _________
______________ Attorney to transfer the within Right Certificate on the books of
the within-named Company, with full power of substitution.
Dated: ________________, 19__
_______________________________
Signature
Signature Guaranteed:
4
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned
or transferred by or on behalf of a Person who is or was an Acquiring Person or
an Associate or an Affiliate thereof (as such terms are defined pursuant to the
Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Right Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate thereof (as such terms are defined pursuant to the Rights
Agreement).
Dated: ____________ , 19__ ____________________________
Signature
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any change whatsoever.
5
FORM OF ELECTION TO PURCHASE
(To be executed if registered holder
desires to exercise the Right Certificate.)
TO HEICO CORPORATION
The undersigned hereby irrevocably elects to exercise ______________
_____________________________________________________ Rights represented by
this Right Certificate to purchase the Series A Preferred Stock issuable upon
the exercise of such Rights and requests that certificates for such share(s) be
issued in the name:
Please insert social security
or other identifying number: _________________________________________________
______________________________________________________________________________
(Please print name and address)
______________________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in
6
the name of and delivered to:
Please insert social security
or other identifying number: _________________________________________________
______________________________________________________________________________
(Please print name and address)
______________________________________________________________________________
Dated: _____________ , 19__
_________________________________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the fact of this
Right Certificate)
Signature Guaranteed:
7