INDEX TO EXHIBITS
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3.4 Articles of Amendment of the Articles of Incorporation of the Registrant, dated
March 19, 1998.
5.1 Opinion of Greenberg Traurig Hoffman Rosen Lipoff & Quentel, P.A. as to the
validity of the Common Stock being registered.
10.18 HEICO Corporation 1993 Stock Option Plan, as amended.
23.2 Consent of Deloitte & Touche LLP.
27 Financial Data Schedule
EXHIBIT 3.4
ARTICLES OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
HEICO CORPORATION
Pursuant to the provisions of Section 607.1006, Florida Statutes, HEICO
Corporation (the "Corporation") adopts the following Articles of Amendment to
the Articles of Incorporation (the "Amendment"):
FIRST: Amendment adopted: Article III is hereby amended in its entirety as
attached hereto as EXHIBIT A.
SECOND: The date of the Amendment's adoption is March 17, 1998.
THIRD: Adoption of the amendment. This Amendment was approved by the Board of
Directors and the Shareholders of the Corporation. The number of votes
cast for the amendment was sufficient for approval.
IN WITNESS WHEREOF, HEICO Corporation has caused this Amendment to be
executed by the Vice President on this 17th day of March, 1998.
HEICO CORPORATION
By: /s/ Victor Mendelson
-------------------------------
Victor Mendelson, Vice President
ARTICLE III: CAPITAL STOCK
(a) The corporation is authorized to issue seventy million
(70,000,0000) shares of capital stock, $0.01 par value per share, of which
thirty million (30,000,000) are designated Common Stock; thirty million
(30,000,000) are designated Class A Common Stock; and ten million (10,000,000)
are designated Preferred Stock.
The Board of Directors may change the name and reference to the Common
Stock and the Class A Common Stock without altering and changing any of the
rights, priviledges and preferences of the holders of the Common Stock and the
Class A Common Stock, including but not limited to renaming the Class A Common
Stock Class B Common Stock and renaming the Common Stock Class A Common Stock.
(b) The Common Stock and the Class A Common Stock shall be subject to
the express terms of the Preferred Stock and any class or series thereof. The
powers, preferences and rights of the Common Stock and the Class A Common Stock
and the qualifications, limitations and restrictions thereof, shall in all
respects be identical, except as otherwise required by law or as expressly
provided in this Section (b).
(1) Except as otherwise required by law or as may be
provided by the resolutions of the Board authorizing the issuance of any class
or series of the Preferred Stock, as herein provided, all rights to vote and all
voting power shall be vested exclusively in the holders of the Common Stock and
Class A Common Stock. The holders of shares of Common Stock and Class A Common
Stock shall have the following voting rights:
(A) the holders of Common Stock shall be entitled to
one (1) vote for each share of Common Stock held on all matters voted upon by
the shareholders of the Company and shall vote together with the holders of
Class A Common Stock and together with the holders of any other classes or
series of stock who are entitled to vote in such manner and not as a separate
class; and
(B) the holders of Class A Common Stock shall be
entitled to one-tenth (1/10th) vote for each share of Class A Common Stock held
on all matters voted upon by the shareholders of the Company and shall vote
together with the holders of Common Stock and together with the holders of any
other classes or series of stock who are entitled to vote in such manner and not
as a separate class.
(2) Subject to the rights of the holders of the Preferred
Stock, the holders of the Common Stock and the Class A Common Stock shall be
entitled to receive when, as and if declared by the Board, out of funds legally
available therefor, dividends and other distributions payable in cash, property,
stock (including shares of any class or series of the Company, whether or not
shares of such class or series are already outstanding) or otherwise. Each share
Common Stock and each share of Class A Common Stock shall have identical rights
with respect to dividends and distributions, subject to the following:
(A) a dividend or distribution in common stock on
Common Stock may be paid or made in shares of Common Stock or shares of Class A
Common Stock or a combination of both;
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(B) a dividend or distribution in common stock on
Class A Common Stock may be paid in shares of Class A Common Stock or shares of
Common Stock or a combination of both;
(C) whenever a dividend or distribution is payable in
shares of Common Stock and/or Class A Common Stock, the number of shares of
Common Stock payable as a dividend or distribution per each share of Common
Stock or Class A Common Stock shall be equal in number;
(D) a dividend or distribution on Common Stock which
is paid or made in shares of Common Stock shall be considered identical to a
dividend or distribution on Class A Common Stock which is paid or made in a
proportionate number of shares of Class A Common Stock; and
(E) If any shares of Class A Common Stock require
registration with or approval of any governmental authority under any federal or
state law before such shares may be issued upon conversion, the Company shall
cause such shares to be duly registered or approved, as the case may be. The
Company shall endeavor to use its best efforts to list the shares of Class A
Common Stock to be delivered upon conversion prior to such delivery upon each
national securities exchange upon which the outstanding shares of Class A Common
Stock are listed at the time of such delivery.
(3) If the Company shall in any manner split, subdivide or
combine the outstanding shares of Common Stock or Class A Common Stock, then the
outstanding shares of the Common Stock and the Class A Common Stock shall be
proportionately split, subdivided or combined in the same manner and on the same
basis as the outstanding shares of the class that has been split, subdivided or
combined.
(4) In the event of a merger, consolidation or combination
of the Company with another entity (whether or not the Company is the surviving
entity), the holders of Common Stock and Class A Common Stock shall be entitled
to receive the same per share consideration in that transaction, except that any
common stock that holders of Class A Common Stock are entitled to receive in any
such event may differ as to voting rights and otherwise to the extent and only
the extent that the Common Stock and the Class A Common Stock differ as set
forth in this Section (b).
(5) Upon any liquidation, dissolution or winding-up of the
Company, whether voluntary or involuntary, and after the holders of the
Preferred Stock shall have been paid in full the amounts to which they shall be
entitled, if any, or a sum sufficient for such payment in full shall have been
set aside, the remaining net assets of the Company, if any, shall be divided
among and paid ratably to the holders of Common Stock and Class A Common Stock
treated as a single class.
(6) The Board shall have the power to cause the Company to
issue and sell shares of either class of Common Stock to such individuals,
partnerships, joint ventures, limited liability companies, associations,
corporations, trusts or other legal entities (collectively, "persons") and for
such consideration as the Board shall from time to time in its discretion
determine, whether or not greater consideration could be received upon the issue
or sale of the same number of shares of the Common Stock or the Class A Common
Stock, and as otherwise permitted by law. The Board shall have the power to
cause the Company to purchase, out of funds legally available therefor, shares
of either the Common Stock or the Class A Common Stock from such persons and for
such consideration as the Board shall from time to time in its discretion
determine, whether or not less consideration could be paid upon the purchase of
the same number of shares of the Common Stock or the Class A Common Stock, and
as otherwise permitted by law.
(c) The holders of record of any outstanding shares of Preferred
Stock shall be entitled to dividends when and as declared by the Board of
Directors of the corporation at such rate per share, if any, and at such time
and in such manner, as shall be determined by the Board of Directors of the
corporation in the resolution authorizing the series of Preferred Stock of which
such shares of Preferred Stock are a part.
(d) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the corporation, the holders of record of the
outstanding shares of Preferred Stock shall be entitled to such amount, if any,
for each share of Preferred Stock, as the Board of Directors of the corporation
shall determine in the resolution authorizing the series of Preferred Stock of
which such shares of Preferred Stock are a part, whether or not the corporation
shall have any surplus or earnings available for dividends, and no more. If the
assets of the corporation shall not be sufficient to pay to all holders of
Preferred Stock the amounts to which they would be entitled in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the
corporation, the
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holders of record of each series of the Preferred Stock which is entitled to
share in the assets of the corporation in any such event shall be entitled to
share in the assets of the corporation to the extent, if any, and in the manner,
determined by the Board of Directors of the corporation in the resolution
authorizing the series of Preferred Stock of which such shares are a part and in
such cases holders of record of shares of Preferred Stock of the same series
shall be entitled to share ratably in accordance with the number of shares of
Preferred Stock of the series held of record by them to the extent, if any, that
the series is entitled to share in the assets of the corporation in such event.
(e) Preferred Stock may be issued from time to time in one or more
series. All Preferred Stock shall be of equal rank and identical, except in
respect to the particulars that may be fixed by the Board of Directors. The
Board of Directors is authorized to establish series of Preferred Stock and to
fix, in the manner and to the full extent provided and permitted by law, the
following rights, preferences and limitations of each series of the Preferred
Stock and the relative rights, preferences and limitations between or among such
series:
(1) the distinctive designation of each series and the number
of shares that shall constitute the series;
(2) the rate of dividends, if any, the preferences and
conditions under which, dividends shall be payable on the shares of each series
and the time and manner of payment, the status of such dividends as cumulative
or noncumulative, the date or dates from which dividends, if cumulative, shall
accumulate, and the status of such shares as participating or nonparticipating
after the payment of dividends as to which such shares are entitled to any
preference;
(3) whether shares of each series may be redeemed and, if so,
the redemption price and the terms and conditions of redemption;
(4) sinking fund provisions, if any, for the redemption or
purchase of shares of each series which is redeemable;
(5) the amount, if any, payable upon shares of each series in
the event of the voluntary or involuntary liquidation, dissolution or winding up
of the corporation, and the manner and preference of such payment;
(6) voting rights, if any, on the shares of each series and
any conditions upon the exercisability of such rights;
(7) the rights, if any, of the holders of shares of each
series to convert those shares into Common Stock or shares of any other series
of Preferred Stock and the terms and conditions of conversion;
(8) the limitations, if any, applicable while each series is
outstanding, on the payment of dividends or making of distributions on, or the
acquisition or redemption of, Common Stock or any other class of shares ranking
junior, either as to dividends or upon liquidation, to the shares of each
series.
(9) the conditions or restrictions, if any, upon the issue
of any additional shares (including additional shares of such series or any
other series or of any other class) ranking on a parity with or prior to the
shares of such series either as to dividends or upon liquidation; and
(10) any other relative powers, preferences and
participations, optional or other special rights, and the qualifications,
limitations or restrictions thereof, of shares of such series.
When such series of Preferred Stock is established by the Board of
Directors, articles of amendment setting forth the amendment, certifying that
the amendment has been duly adopted by the Board of Directors in accordance with
the applicable provisions of the Florida Business Corporation Act, and
containing such other statements as may be necessary or advisable, shall be
assigned by its president or vice president and by its secretary or an assistant
secretary, and filed with the Department of State of the State of Florida.
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(f) Series A Junior Participating Preferred Stock.
(1) Dividends and Distributions. The shares of such series
shall be designated as "Series A Junior Participating Preferred Stock" (the
"Series A Preferred Stock") and the number of shares constituting such series
shall be 50,000.
(2) Dividends and Distributions.
(A) Subject to the provisions for adjustment
hereinafter set forth, the holders of shares of Series A Preferred Stock shall
be entitled to receive, when, as and if declared by the Board of Directors out
of funds legally available for the purpose, (i) cash dividends in an amount per
share (rounded to the nearest cent) equal to 100 times the aggregate per share
amount of all cash dividends declared or paid on the Common Stock of the
corporation and (ii) a preferential cash dividend (the "Series A Preferential
Cash Dividends"), if any, on the first day of February, May, August and November
of each year (each a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a shares of Series A Preferred Stock, in an amount equal to $.75 per share of
Series A Preferred Stock less the per share amount of all cash dividends
declared on the Series A Preferred Stock pursuant to clause (i) of this sentence
since the immediately preceding Quarterly Dividend Payment Date or, with respect
to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the event the
corporation shall, at any time after the issuance of any share or fraction of a
series of Series A Preferred Stock, make any distribution on the shares of
Common Stock of the corporation, whether by way of a dividend or a
reclassification of stock, a recapitalization, reorganization or partial
liquidation of the corporation or otherwise, which is payable in cash or any
debt security, debt instrument, real or personal property or any other property
(other than cash dividends subject to the immediately preceding sentence, a
distribution of shares of Common Stock or other capital stock of the corporation
or a distribution of rights or warrants to acquire any such share, including any
debt security convertible into or exchangeable for any such share, at a price
less than the Fair Market Value (as defined in Section (e)(7)(D) of this Article
III) of such share), then and in each such event the corporation shall
simultaneously pay on each then outstanding shares of Series A Preferred Stock
of the Corporation a distribution, in like kind, of 100 times such distribution
paid on a share of Common Stock (subject to the provisions for adjustment
hereinafter set forth). The dividends and distributions on the Series A
Preferred Stock to which holders thereof are entitled pursuant to clause (i) of
the first sentence of this paragraph and pursuant to the second sentence of this
paragraph are hereinafter referred to as "Participating Dividends" and the
multiple of such cash and non-cash dividends on the Common Stock applicable to
the determination of the Participating Dividends, which shall be 100 initially
but shall be adjusted from time to time as hereinafter provided, is hereinafter
referred to as the "Dividend Multiple." In the event the Corporation shall at
any time after November 2, 1993 declare or pay any dividend or make any
distribution on a combination, consolidation or reverse split of the outstanding
shares of Common Stock into a greater or lesser number of shares of Common
Stock, then in each such case the Dividend Multiple thereafter applicable to the
determination of the amount of Participating Dividends which holders of shares
of Series A Preferred Stock shall be entitled to receive shall be the Dividend
Multiple applicable immediately prior to such event multiplied by a fraction,
the numerator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare each
Participating Dividend at the same time it declares any cash or non-cash
dividend or distribution on the Common Stock in respect of which a Participating
Dividend is required to be paid. No cash or non-cash dividend or distribution on
the Common Stock in respect of which a Participating Dividend is required to be
paid shall be paid or set aside for payment on the Common Stock unless a
Participating Dividend in respect of such dividend or distribution on the Common
Stock shall be simultaneously paid, or set aside for payment, on the Series A
Preferred Stock.
(C) Series A Preferential Cash Dividends shall begin
to accrue on outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issuance of any shares of
Series A Preferred Stock. Accrued but unpaid Series A Preferential Cash
Dividends shall be cumulative but shall not bear interest. Series A Preferential
Cash Dividends paid on the share of Series A
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Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
(3) Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provisions for adjustment
hereinafter set forth, each share of Series A Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of the
shareholders of the Corporation. The number of votes which a holder of a share
of Series A Preferred Stock is entitled to cast, as the same may be adjusted
from time to time as hereinafter provided, is hereinafter referred to as the
"Vote Multiple." In the event the Corporation shall at any time after November
2, 1993 declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or split or a combination, consolidation or
reverse split of the outstanding shares of Common Stock into a greater or lesser
number of shares of Common Stock, then in each such case the Vote Multiple
thereafter applicable to the determination of the number of votes per share to
which holders of shares of Series A Preferred Stock shall be entitled after such
event shall be the Vote Multiple immediately prior to such event multiplied by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) Except as otherwise provided in these Articles of
Incorporation or the Bylaws of the Corporation, the holders of shares of Series
A Preferred Stock and the holders of shares of Common Stock shall vote together
as a single voting group on all matters submitted to a vote of shareholders of
the Corporation.
(C) Unless otherwise provided in these Articles of
Incorporation, in the event that any preferential cash dividend to which the
holders of any currently existing or future series of the Preferred Stock are
entitled (collectively, the "Preferred Cash Dividends") has accrued for four or
more quarterly dividend periods, whether consecutive or not, and shall not have
been declared and paid (or a sum sufficient for the payment thereof has been set
aside) in full, the holders of record of such series of Preferred Stock, other
than any series in respect of which such right is expressly withheld by these
Articles of Incorporation (such holders existing from time to time being
hereinafter referred to as the "Unpaid Series Holders"), acting as a single
voting group, shall have the right, at the next meeting of shareholders called
for the election of Directors, to elect two members to the Board of Directors,
which Directors (hereinafter, the "Preferred Directors") shall be in addition to
the number of Directors required by the Bylaws of the Corporation prior to such
event, to serve until the next annual meeting of shareholders and until their
successors are elected and qualified or their earlier resignation, removal or
incapacity or until such earlier time as all accrued and unpaid Preferred Cash
Dividends shall have been paid (or a sum sufficient for the payment thereof has
been set aside) in full. If at any annual meeting of shareholders at which the
term of a Preferred Director is fixed to expire there are accrued Preferred Cash
Dividends which have not been paid (or a sum sufficient for payment thereof has
not been set aside) in full, the Unpaid Series Holders shall have the right to
elect a Preferred Director to the vacant Directorship resulting from the
expiration of the term of such Preferred Director in the manner provided in the
immediately preceding sentence until all accrued and unpaid Preferred Cash
Dividends shall have been paid (or a sum sufficient for payment thereof has been
set aside) in full; PROVIDED, HOWEVER, that at no time shall more than two
Preferred Directors be members of the Board of Directors. The Preferred
Directors may be removed, with or without cause, by the Unpaid Series Holders.
Vacancies in such Directorships (whether caused by death, resignation, removal
or otherwise) may be filled (if any accrued Preferred Cash Dividends remain
unpaid or a sum sufficient for payment thereof has not been set aside) only by
the Unpaid Series Holders (or by the remaining Director elected by the Unpaid
Series Holders, if there be one) in the manner permitted by law; PROVIDED,
HOWEVER, that any such action by the Unpaid Series Holders shall be taken at a
meeting of shareholders and shall not be taken by written consent; PROVIDED
FURTHER, HOWEVER, that by a vote of a majority of the Board of Directors in
office other than the Preferred Directors, the Preferred Directors may be
removed immediately after all accrued and unpaid Preferred Cash Dividends shall
have been paid (or a sum sufficient for the payment thereof has been set aside)
in full.
(D) Except as otherwise provided in these Articles of
Incorporation or the Bylaws of the Corporation, holders of Series A Preferred
Stock shall have no special voting rights and their consent shall
5
not be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for the taking of any corporate action.
(4) Certain Restrictions.
(A) Whenever Series A Preferential Cash Dividends or
Participating Dividends are in arrears or the Corporation shall be in default of
payment thereof, thereafter and until all accrued and unpaid Series A
Preferential Cash Dividends and Participating Dividends, whether or not
declared, on shares of Series A Preferred Stock outstanding shall have been paid
(or a sum sufficient for payment thereof has been set aside) in full, and in
addition to any and all other rights which any holder of shares of Series A
Preferred Stock may have in such circumstances, the Corporation shall not
(i) declare or pay dividends on, make any
other distributions on, or redeem or purchase or otherwise acquire for
consideration, any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares of stock ranking on a parity as to dividends
with the Series A Preferred Stock, unless dividends are paid ratably on the
Series A Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled if the full dividends accrued thereon were to
be paid;
(iii) except as permitted by subparagraph
(iv) of this paragraph (4)(a), redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Preferred Stock,
PROVIDED that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for shares of any stock of
the Corporation ranking junior (both as to dividends and upon liquidation,
dissolution or winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any shares of stock
ranking on a parity with the Series A Preferred Stock (either as to dividends or
upon liquidation, dissolution or winding up), except in accordance with a
purchase offer made to all holders of such shares upon such terms as the Board
of Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(B) The Corporation shall not permit any Subsidiary
(as hereinafter defined) of the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless the Corporation
could, under paragraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner. A "Subsidiary" of the Corporation shall
mean any corporation or other entity of which securities or other ownership
interests having ordinary voting power sufficient to elect a majority of the
Board of Directors or other persons performing similar functions are
beneficially owned, directly or indirectly, by the Corporation or by any
corporation or other entity that is otherwise controlled by the Corporation.
(C) The Corporation shall not issue any shares of
Series A Preferred Stock except upon exercise of Rights (the "Rights") issued
pursuant to that certain Rights Agreement dated as of November 2, 1993 between
the Corporation and SunBank, National Association, as rights agent, a copy of
which is on file with the Secretary of the Corporation at its principal
executive office and shall be made available to shareholders of record without
charge upon written request therefor addressed to said Secretary.
Notwithstanding the foregoing sentence, nothing contained in the provisions
hereof shall prohibit or restrict the Corporation from issuing for any purpose
any series of Preferred Stock with rights and privileges similar to, different
from or greater than those of the Series A Preferred Stock.
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(5) Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares upon their retirement and cancellation shall become authorized
but unissued shares of Preferred Stock, without designation as to series, and
such shares may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors.
(6) Liquidation, Dissolution or Winding Up. Upon any
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (A) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock unless the holders of shares of
Series A Preferred Stock shall have received, subject to adjustment as
hereinafter provided, (i) $45 per one-hundredth share plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, or (ii) if greater than the amount specified in
clause (A)(i) of this sentence, an amount equal to 100 times the aggregate
amount to be distributed per share to holders of Common Stock, as the same may
be adjusted as hereinafter provided, and (B) to the holders of stock ranking on
a parity upon liquidation, dissolution or winding up with the Series A Preferred
Stock, unless simultaneously therewith distributions are made ratably on the
Series A Preferred Stock and all other shares of such parity stock in proportion
to the total amounts to which the holders of shares of Series A Preferred Stock
are entitled under clause (A)(i) of this sentence and to which the holders of
such parity shares are entitled, in each case upon such liquidation, dissolution
or winding up. The amount to which holders of Series A Preferred Stock may be
entitled upon liquidation, dissolution or winding up of the Corporation pursuant
to clause (A) of the foregoing sentence is hereinafter referred to as the
"Participating Liquidation Amount" and the multiple of the amount to be
distributed to holders of shares of Common Stock upon the liquidation,
dissolution or winding up of the Corporation applicable pursuant to said clause
to the determination of the Participating Liquidation Amount, as said multiple
may be adjusted from time to time as hereinafter provided, is hereinafter
referred to a the "Liquidation Multiple." In the event the Corporation shall at
any time after November 2, 1993 declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision of split or a
combination, consolidation or reverse split of the outstanding shares of Common
Stock into a greater or lesser number of shares of Common Stock, then in each
such case the Liquidation Multiple thereafter applicable to the determination of
the Participating Liquidation Amount to which holders of Series A Preferred
Stock shall be entitled after such event shall be the Liquidation Multiple
applicable immediately prior to such event multiplied by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(7) Certain Reclassifications and Other Events.
(A) In the event that holders of shares of Common
Stock of the Corporation receive after November 2, 1993 in respect of their
shares of Common Stock any share of capital stock of the Corporation (other than
any share of Common Stock of the Corporation), whether by way of
reclassification, recapitalization, reorganization, dividend or other
distribution or otherwise (a "Transaction"), then and in each such event the
dividend rights, voting rights and rights upon the liquidation, dissolution or
winding up of the Corporation of the shares of Series A Preferred Stock shall be
adjusted so that after such event the holders of Series A Preferred Stock shall
be entitled, in respect of each share of Series A Preferred Stock held, in
addition to such rights in respect thereof to which such holder was entitled
immediately prior to such adjustment, to (i) such additional dividends as equal
the Dividend Multiple in effect immediately prior to such Transaction multiplied
by the additional dividends which the holder of a share of Common Stock shall be
entitled to receive by virtue of the receipt in the Transaction of such capital
stock, (ii) such additional voting rights as equal the Vote Multiple in effect
immediately prior to such Transaction multiplied by the additional voting rights
which the holder of a share of Common Stock shall be entitled to receive by
virtue of the receipt in the Transaction of such capital stock and (iii) such
additional distributions upon liquidation, dissolution or winding up of the
Corporation as equal the Liquidation Multiple in effect immediately prior to
such Transaction multiplied by the additional amount which the holder of a share
of Common Stock shall be entitled to receive upon liquidation, dissolution or
winding up of the Corporation by virtue of the receipt in the Transaction of
such capital stock, as the case may be, all as provided by the terms of such
capital stock.
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(B) In the event that holders of shares of Common
Stock of the Corporation receive after November 2, 1993 in respect of their
shares of Common Stock any right or warrant to purchase Common Stock (including
as such a right, for all purposes of this paragraph, any security convertible
into or exchangeable for Common Stock) at a purchase price per share less than
the Fair Market Value (as hereinafter defined) of a share of Common Stock on the
date of issuance of such right or warrant, then and in each such event the
dividend rights, voting rights and rights upon the liquidation, dissolution or
winding up of the Corporation of the shares of Series A Preferred Stock shall
each be adjusted so that after such event the Dividend Multiple, the Vote
Multiple and the Liquidation Multiple shall each be the product of the Dividend
Multiple, the Voting Multiple and the Liquidation Multiple, as the case may be,
in effect immediately prior to such event multiplied by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately before such issuance of rights or warrants plus the maximum number
of shares of Common Stock which could be acquired upon exercise in full of all
such rights or warrants and the denominator of which shall be the number of
shares of Common Stock outstanding immediately before such issuance of rights or
warrants plus the number of shares of Common Stock which could be purchased, at
the Fair Market Value of the Common Stock at the time of such issuance, by the
maximum aggregate consideration payable upon exercise in full of all such rights
or warrants.
(C) In the event that holders of shares of Common
Stock of the Corporation receive after November 2, 1993 in respect of their
shares of Common Stock any right or warrant to purchase capital stock of the
Corporation (other than shares of Common Stock), including as such a right, for
all purposes of this paragraph, any security convertible into or exchangeable
for capital stock of the Corporation (other than Common Stock), at a purchase
price per share less than the Fair Market Value of such shares of capital stock
on the date of issuance of such right or warrant, then and in each such event
the dividend rights, voting rights and rights upon liquidation, dissolution or
winding up of the Corporation of the shares of Series A Preferred Stock shall
each be adjusted so that after such event each holder of a share of Series A
Preferred Stock shall be entitled, in respect of each share of Series A
Preferred Stock held, in addition to such rights in respect thereof to which
such holder was entitled immediately prior to such event, to receive (i) such
additional dividends as equal the Dividend Multiple in effect immediately prior
to such event multiplied, first, by the additional dividends to which the holder
of a share of Common Stock shall be entitled upon exercise of such right or
warrant by virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction (as hereinafter defined)
and (ii) such additional voting rights as equal the Vote Multiple in effect
immediately prior to such event multiplied, first, by the additional voting
rights to which the holder of a share of Common Stock shall be entitled upon
exercise of such right or warrant by virtue of the capital stock which could be
acquired upon such exercise and multiplied again by the Discount Fraction and
(iii) such additional distributions upon liquidation, dissolution or winding up
of the Corporation as equal the Liquidation Multiple in effect immediately prior
to such event multiplied, first, by the additional amount which the holder of a
share of Common Stock shall be entitled to receive upon liquidation, dissolution
or winding up of the Corporation upon exercise of such right or warrant by
virtue of the capital stock which could be acquired upon such exercise and
multiplied again by the Discount Fraction. For purposes of this paragraph, the
"Discount Fraction" shall be a fraction, the numerator of which shall be the
difference between the Fair Market Value of a share of the capital stock subject
to a right or warrant distributed to holders of shares of Common Stock of the
Corporation as contemplated by this paragraph immediately after the distribution
thereof and the purchase price per share for such share of capital stock
pursuant to such right or warrant and the denominator of which shall the Fair
Market Value of a share of such capital stock immediately after the distribution
of such right or warrant.
(D) For purposes of this Section (e) of Article III,
the "Fair Market Value" of a share of capital stock of the Corporation
(including a share of Common Stock) on any date shall be deemed to be the
average of the daily closing price per share thereof over the 30 consecutive
Trading Days (as such term is hereinafter defined) immediately prior to such
date; PROVIDED, HOWEVER, that, in the event that such Fair Market Value of any
such share of capital stock is determined during a period which includes any
date that is within 30 Trading Days after (i) the ex-dividend date for a
dividend or distribution on stock payable in shares of such stock or securities
convertible into shares of such stock, or (ii) the effective date of any
subdivision, split, combination, consolidation, reverse stock split or
reclassification of such stock, then, and in each such case, the Fair Market
Value shall be appropriately adjusted by the Board of Directors of the
Corporation to take into account ex-dividend or post-effective date trading. The
closing price for any day shall be the last sale price, regular way, or, in case
no
8
such sale takes place on such day, the average of the closing bid and asked
prices, regular way (in either case, as reported in the applicable transaction
reporting system with respect to securities listed or admitted to trading on the
New York Stock Exchange), or, if the shares are not listed or admitted to
trading on the New York Stock Exchange, as reported in the applicable
transaction reporting system with respect to securities listed on the principal
national securities exchange on which the shares are listed or admitted to
trading or, if the shares are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported by
the National Association of Securities Dealers, Inc. Automated Quotation
System's National Market System ("NASDAQ/NMS") or such other system then in use,
or if on any such date the shares are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the shares selected by the Board of Directors of
the Corporation. The term "Trading Day" shall mean a day on which the principal
national securities exchange on which the shares are listed or admitted to
trading is open for the transaction of business or, if the shares are not listed
or admitted to trading on any national securities exchange, on which the
NASDAQ/NMS or such national securities exchange as may be selected by the Board
of Directors of the Corporation is open. If the shares are not publicly held or
not so listed or traded on any day within the period of 30 Trading Days
applicable to the determination of Fair Market Value thereof as aforesaid, "Fair
Market Value" shall mean the fair market value thereof per share as determined
in good faith by the Board of Directors of the Corporation. In either case
referred to in the foregoing sentence, the determination of Fair Market Value
shall be described in a statement filed with the Secretary of the Corporation.
(8) Consolidation, Merger, Etc. In case the Corporation
shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case each
outstanding share of Series A Preferred Stock shall at the same time be
similarly exchanged for or changed into the aggregate amount of stock,
securities, cash and/or other property (payable in like kind), as the case may
be, for which or into which each share of Common Stock is changed or exchanged
multiplied by the highest of the Vote Multiple, the Dividend Multiple or the
Liquidation Multiple in effect immediately prior to such event.
(9) Effective Time of Adjustments.
(A) Adjustments to the Series A Preferred Stock
required by the provisions hereof shall be effective as of the time at which the
event requiring such adjustments occur.
(B) The Corporation shall give prompt written notice
to each holder of a share of Series A Preferred Stock of the effect of any
adjustment to the voting rights, dividend rights or rights upon liquidation,
dissolution or winding up of the Corporation of such shares required by the
provisions hereof. Notwithstanding the foregoing sentence, the failure of the
Corporation to give such notice shall not affect the validity of or the force or
effect of or the requirement for such adjustment.
(10) No Redemption. The shares of Series A Preferred Stock
shall not be redeemable at the option of the Corporation or any holder thereof.
Notwithstanding the foregoing sentence of this Section 10, the Corporation may
acquire shares of Series A Preferred Stock in any other manner permitted by law
and the Articles of Incorporation.
(11) Ranking. Unless otherwise provided in these Articles
of Incorporation, the Series A Preferred Stock shall rank junior to all other
series of the Corporation's Preferred Stock as to the payment of dividends and
the distribution of assets on liquidation, dissolution or winding up and shall
rank senior to the Common Stock.
(12) Amendment. These Articles of Incorporation of the
Corporation shall not be amended in any manner which would adversely affect the
rights, preferences or limitations of the Series A Preferred Stock without, in
addition to any other vote of shareholders required by law, the approval of (1)
the holders of the then outstanding Rights (as defined in Section (e)(4)(C) of
this Article III) and (2) the holders of the then outstanding shares of the
Series A Preferred Stock, with the holders of the Rights and the holders of the
Series A Preferred
9
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.
10
EXHIBIT 5.1
March 23, 1998
HEICO Corporation
3000 Taft Street
Hollywood, Florida 33021
Re: OFFERING OF COMMON STOCK OF HEICO CORPORATION
Gentleman:
On the date hereof, HEICO Corporation, a Florida corporation (the
"Company"), filed with the Securities and Exchange Commission a Registration
Statement on Form S-3 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Act"). The Registration Statement relates to the offering
and sale by certain selling shareholders of 218,590 shares of the Company's
Common Stock, par value$.01 per share (the "Shares").
We have acted as special counsel to the Company in connection with the
preparation and filing of the Registration Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Amended Articles of
Incorporation and the Amended Bylaws of the Company; (ii) resolutions of the
Board of Directors of the Company authorizing the offering and related matters;
(iii) the Registration Statement and exhibits thereto; and (iv) such other
documents and instruments as we have deemed necessary or appropriate for the
expression of the opinion herein contained. In making the foregoing
examinations, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of all documents submitted to us as certfied or
photostatic copies. As to various questions of fact material to this opinion, we
have relied, to the extent we deem reasonably appropriate, upon representations
or certificates of officers or directors of the Company and upon documents,
records and instruments furnished to us by the Company, without independently
checking or verifying the accuracy of such documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the
Shares have been duly and validly authorized and issued and are fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the Prospectus forming a part of the Registration Statement. In
giving such consent, we do not admit that we come within the category of persons
whose consent is required by Section 7 of the Act or rules and regulations of
the Commission thereunder.
Sincerely,
/s/ GREENBERG TRAURIG HOFFMAN
LIPOFF ROSEN & QUENTEL, P.A.
EXHIBIT 10.18
HEICO CORPORATION
1993 STOCK OPTION PLAN
1. PURPOSE. The purpose of this Plan is to advance the interests of
HEICO Corporation, a Florida corporation (the "Company"), and its Subsidiaries
by providing an additional incentive to attract and retain qualified and
competent persons who provide management and other services and upon whose
efforts and judgement the success of the Company and Subsidiaries is largely
dependent, through the encouragement of stock ownership in the Company by such
persons.
2. DEFINITIONS. As used herein, the following terms shall have the
meanings indicated:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Committee" shall mean the stock option committee
appointed by the Board pursuant to Section 12 hereof, or if not
appointed, the Board.
(c) "Common Stock" shall mean the common stock, par value $.01
per share, of the Company.
(d) "Director" shall mean a member of the Board.
(e) "Disinterested Person" shall mean a Director who, during
one year prior to the time he serves on the Committee and during such
service, has not received Shares, options for Shares or any rights with
respect to Shares under this Plan or any other employee and/or Director
benefit plan of the Company or any of its affiliates except pursuant to
an election to receive annual director's fees in securities of the
Company.
(f) "Employee" and "employment" shall, except where the
context otherwise requires, mean or refer to a Director and his
Directorship as well as to a regular employee and his employment.
(g) "Fair Market Value" of a Share on any date of reference
shall mean the Closing Price of the Common Stock on such date, unless
the Committee in its sole discretion shall determine otherwise in a
fair and uniform manner. For this purpose, the Closing Price of the
Common Stock on any business day shall be (i) if the Common Stock is
listed or admitted for trading on any United States national securities
exchange, or if actual transactions are otherwise reported on a
consolidated transaction reporting system, the last reported sale price
of Common Stock on such exchange or reporting system, as reported in
any newspaper of general circulation, or (ii) if the Common Stock is
quoted on the National Association of Securities Dealers Automated
Quotations System ("NASDAQ"), or any similar system of automated
dissemination of quotations of securities prices in common use, the
mean between the closing bid and asked quotations for Common Stock as
reported by the National Quotation Bureau, Incorporated, if at least
two securities dealers have inserted both bid and asked quotations for
Common Stock on at least 5 of the 10 preceding business days.
(h) "Grantee" shall mean a person to whom a stock option is
granted under this Plan or any person who succeeds to the rights of
such person under this Plan by reason of death of such person or
transfer of such option as may be allowed under this Plan.
(i) "Incentive Stock Option" means an option to purchase
Shares of Common Stock which is intended to qualify as an incentive
stock option as defined in Section 422 of the Internal Revenue Code.
(j) "Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time.
1
(k) "Key Employee" means any person, including officers and
Directors, in the regular full-time employment of the Company or any
Subsidiary who, in the opinion of the Committee, is or is expected to
be responsible for the management, growth or protection of some part or
all of the business of the Company or a Subsidiary.
(l) "Non-qualified Stock Option" means an option to purchase
Shares of Common Stock which is not intended to qualify as an Incentive
Stock Option.
(m) "Option" (when capitalized) shall mean any option granted
under this Plan.
(n) "Plan" shall mean this 1993 Stock Option Plan for HEICO
Corporation.
(o) "Share(s)" shall mean a share or shares of the Common
Stock.
(p) "Subsidiary" shall mean any corporation (other than the
Company) in any unbroken chain of corporations, beginning with the
Company if, at the time of the granting of the Option, each of the
corporations other than the last corporation in the unbroken chain owns
stock possessing ten (10) percent or more of any class of any equity
security in one of the other corporations in such chain and has the
right to direct the management of the other corporation.
3. SHARES AND OPTIONS. The Company may grant to Grantees from time to
time Options to purchase an aggregate of up to 1,682,500 Shares from Shares held
in the Company's treasury or from authorized and unissued Shares. Of this
amount, all or any may be optioned as Incentive Stock Options, as Non-qualified
Stock Options, or any combination thereof. If any Option granted under this Plan
shall terminate, expire, or be cancelled or surrendered as to any Shares, new
Options may thereafter be granted covering such Shares.
4. CONDITIONS FOR GRANT OF OPTIONS.
(a) Each Option shall be evidenced by an Option Agreement,
which Option Agreement may be altered consistent with this Plan and
with the approval of both the Committee and the Grantee, that may
contain terms deemed necessary or desirable by the Committee,
including, but not limited to, a requirement that the Grantee agree
that, for a specified period after termination of his employment, he
will not enter into any employment with, or participate directly or
indirectly in, any entity which is directly or indirectly competitive
with the Company or any of its Subsidiaries, provided such terms are
not inconsistent with this Plan or any applicable law. Grantees shall
be selected by the Committee in its discretion and shall be employees
and Directors who are not employees; provided, however, that Directors
who are not employees shall not be eligible to receive Incentive Stock
Options. Any person who files with the Committee, in a form
satisfactory to the Committee, a written waiver of eligibility to
receive any Option under this Plan shall not be eligible to receive any
Option under this Plan for the duration of such waiver.
(b) In granting Options, the Committee shall take into
consideration the contribution the person has made to the success of
the Company or its Subsidiaries and such other factors as the Committee
shall determine. The Committee shall also have the authority to consult
with and receive recommendations from officers and other personnel of
the Company and its Subsidiaries with regard to these matters. The
Committee may from time to time in granting Options under the Plan
prescribe such other terms and conditions concerning such Options as it
deems appropriate, including, without limitation, (i) prescribing the
date or dates on which the Option becomes exercisable, (ii) providing
that the Option rights accrue or become exercisable in installments
over a period of years, or upon the attainment of stated goals or both,
or (iii) relating an Option to the continued employment of the Grantee
for a specified period of time, provided that such terms and conditions
are not more favorable to the Grantee than those expressly permitted
herein.
2
(c) The Options granted to Grantees under this Plan shall be
in addition to regular salaries, Director's fees, pension, life
insurance or other benefits related to their employment or
Directorships with the Company or its Subsidiaries. Neither the Plan
nor any Option granted under the Plan shall confer upon any person any
right to employment or Directorship or continuation of employment or
Directorship by the Company or any of its Subsidiaries.
(d) The Committee in its sole discretion shall determine in
each case whether periods of military or government service shall
constitute a continuation of employment for the purposes of this Plan
or any Option.
(e) During each fiscal year of the Company, no Employee may be
granted Option(s) to purchase more than 100,000 Shares.
(f) No employee may be granted any Incentive Stock Option
pursuant to this plan to the extent that the aggregate fair market
value (determined at the time the Option is granted) of the Shares with
respect to which Incentive Stock Options granted to the employee under
the terms of this Plan or its predecessor after December 31, 1986 are
exercisable for the first time by the employee during any calendar year
exceeds $100,000.
(g) Option agreements with respect to Incentive Stock
Options shall contain such terms and conditions as may be required
under Section 422 of the Internal Revenue Code, as such section may be
amended from time to time.
5. OPTION PRICE. The option price per share of any Option shall be
the price determined by the Committee; provided, however, that in no event shall
the option price per Share of any Incentive Stock Option be less than (i) 100%
or (ii) in the case of an individual who owns stock possessing more than 10% of
the total combined voting power of all classes of stock of the Company, 110%, of
the Fair Market Value of the Shares underlying such Option on the date such
Option is granted.
6. EXERCISE OF OPTIONS. An Option shall be deemed exercised when (i)
the Company has received written notice of such exercise in accordance with the
terms of the Option, (ii) full payment of the aggregate option price of the
Shares as to which the Option is exercised has been made, and (iii) arrangements
that are satisfactory to the Committee in its sole discretion have been made for
the Grantee's payment to the Company of the amount, if any, that is necessary to
withhold in accordance with applicable Federal or State tax withholding
requirements. Unless further limited by the Committee in any Option Agreement,
the option price of any Shares shall be paid in cash, by certified check or
official bank check, by money order, by the Grantee's promissory note, with
Shares (including Shares acquired pursuant to a partial and simultaneous
exercise of the Option) or by a combination of the above; provided further,
however, that the Committee in its sole discretion may accept a personal check
in full or partial payment of any Shares. If the exercise price is paid in whole
or in part with Shares, the value of the Shares surrendered shall be their Fair
Market Value on the business day immediately preceding the date the Option is
exercised. The Company in its sole discretion may, on an individual basis or
pursuant to a general program established in connection with this Plan, lend
money to a Grantee to obtain the cash necessary to exercise all or a portion of
an Option granted hereunder or to pay any tax liability of the Grantee
attributable to such exercise. If the exercise price is paid in whole or in part
with the Grantee's promissory note, such note shall, unless specified by the
Committee at the time of grant or any time thereafter, (w) provide for full
recourse to the maker, (x) be collateralized by the pledge of the Shares that
the Grantee purchases upon exercise of the Option, (y) bear interest at the
prime rate of the Company's principal lender and (z) contain such other terms as
the Committee in its sole discretion shall reasonably require. No Grantee or
permitted transferee(s) thereof shall be deemed to be a holder of any Shares
subject to an Option unless and until exercise has been completed pursuant to
clauses (i-iii) above. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights for which the record date is prior to the date of exercise,
except as expressly provided in Section 9 hereof.
3
7. EXERCISABILITY OF OPTIONS. Any Option shall become exercisable in
such amounts, at such intervals and upon such terms as the Committee shall
provide in the corresponding Option agreement, except as otherwise provided in
this Section 7.
(a) The expiration date of an Option shall be determined by
the Committee at the time of grant, but in no event shall an Incentive
Stock Option be exercisable after the expiration of (i) ten (10) years
from the date of grant of the Option or (ii) in the case of an
individual who owns stock possessing more than 10% of the total
combined voting power of all classes of voting stock of the Company,
five years from the date of the grant of the Option.
(b) Except to the extent otherwise provided in any Option
agreement, each outstanding Option shall become immediately fully
exercisable
(i) if any "person" (as such term is used in
Sections 13(d) and 14(d) (2) of the Securities Exchange Act of
1934), except the Mendelson Reporting Group, as that group is
defined in an Amendment to a Schedule 13D filed on February
26, 1992 or any subsequent amendment to the aforementioned
13D, is or becomes a beneficial owner, directly or indirectly,
of securities of the Company representing 15% or more of the
combined voting power of the Corporation's then outstanding
securities;
(ii) if, during any period of two consecutive
years, individuals who at the beginning of such period
constitute the Board cease for any reason to constitute at
least a majority thereof, unless the Board in existence
immediately preceding the two year period shall have nominated
the new Directors whose Directorships have create the altered
Board composition; or
(iii) if the stockholders of the Company shall
approve a plan of merger, consolidation, reorganization,
liquidation or dissolution in which the Company does not
survive (unless the merger, consolidation, reorganization,
liquidation or dissolution is subsequently abandoned)
provided, however, that a merger or reorganization pursuant to
which the Company merges with a Subsidiary which is owned
principally by the Company's pre-merger or reorganization
shareholders and which becomes publicly traded within five (5)
business days thereafter shall not trigger immediate
exercisability under this Section 7; or
(iv) if the stockholders of the Company shall
approve a plan for the sale, lease, exchange or other
disposition of all or substantially all of the property and
assets of the Company (unless such approved plan is
subsequently abandoned).
(c) The Committee may in its sole discretion accelerate the
date on which any Option may be exercised.
8. TERMINATION OF OPTION PERIOD.
(a) The unexercised portion of any Option shall
automatically and without notice terminate and become null and void at
the time of the earliest to occur of the following:
(i) one week after the date on which the Grantee's
employment is terminated for any reason other than by reason
of (A) cause (which, for purposes of this Plan, shall mean the
termination of the Grantee's employment by reason of the
Grantee's willful misconduct or gross negligence), (B) a
mental or physical disability as determined by a medical
doctor satisfactory to the Committee, or (C) death; provided,
however, that the one week period may be extended by the
Committee to up to three (3) months with respect to Incentive
Stock Options and up to thirty six (36) months in the case of
Non-qualified Stock Options;
4
(ii) immediately upon termination of the Grantee's
employment for cause, provided, however, that the Committee
may extend the period to up to three (3) months with respect
to Incentive Stock Options and up to thirty six (36) months in
the case of Non-qualified Stock Options;
(iii) six months after the date on which the
Grantee's employment is terminated by reason of mental or
physical disability as determined by a medical doctor
satisfactory to the Committee, provided, however, that the
Committee may extend the period to up to thirty six (36)
months in respect to Non-qualified Stock Options;
(iv) (A) twelve months after the date of
termination of the Grantee's employment by reason of death of
the Grantee, or (B) three months after the date on which the
Grantee shall die if such death shall occur during the six (6)
month period specified in Subsection 8(a)(iii) hereof,
provided, however, that the Committee may extend the period to
up to thirty six (36) months in respect to Non-qualified Stock
Options.
(b) The Committee in its sole discretion may by giving
written notice ("cancellation notice") cancel, effective upon the date
of the consummation of any corporate transaction described in
Subsections 7(b)(iii) or (iv) hereof, any Option that remains
unexercised on such date. Such cancellation notice shall be given a
reasonable period of time prior to the proposed date of such
cancellation and may be given either before or after stockholder
approval of such corporate transaction.
9. ADJUSTMENT OF SHARES.
(a) If, at any time while the Plan is in effect or
unexercised Options are outstanding, there shall be any increase or
decrease in the number of issued and outstanding Shares through the
declaration of a stock dividend or through any recapitalization
resulting in a stock split-up, combination or exchange of Shares, then
and in such event:
(i) appropriate adjustment shall be made in the
maximum number of Shares available for grant under the Plan
(including, but not limited to, shares permitted to be granted
to any one individual employee), so that the same percentage
of the Company's issued and outstanding Shares shall continue
to be subject to being so optioned; and
(ii) appropriate adjustment shall be made in the
number of Shares and the option price per Share thereof then
subject to any outstanding Option, so that the same percentage
of the Company's issued and outstanding Shares shall remain
subject to purchase at the same aggregate option price.
(b) Subject to the specific terms of any Option agreement,
the Committee may change the terms of Options outstanding under this
Plan with respect to the option price or the number of Shares subject
to the Options, or both, when, in the Committee's sole discretion, such
adjustments become appropriate by reason of a corporate transaction
described in Subsections 7(b)(iii) or (iv) hereof.
(c) Except as otherwise expressly provided herein, the
issuance by the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class,
either in connection with direct sale or upon the exercise of rights or
warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to the number of or option price of Shares then
subject to outstanding Options granted under this Plan.
(d) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under the Plan shall not
affect in any manner the right or power of the Company to make,
authorize or consummate (i) any or all adjustments, recapitalizations,
reorganizations or other changes in
5
the Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issuance by the Company of debt
securities or preferred or preference stock that would rank above the
Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Company; (v) any sale, transfer or assignment of all
or any part of the assets or business of the Company; or (vi) any other
corporate act or proceeding, whether of a similar character or
otherwise.
10. TRANSFERABILITY OF OPTIONS. Each Option agreement shall provide
that the Option shall not be transferable by the Grantee otherwise than by will
or the laws of descent and distribution or, in the case of Non-qualified Stock
Options, pursuant to a qualified domestic relations order as defined by the
Internal Revenue Code or Title I of the Employee Retirement Income Security Act,
or the rules thereunder; provided, however, that the Committee may waive the
foregoing transferability restriction with respect to Non-qualified Stock
Options on a case-by-case basis.
11. ISSUANCE OF SHARES. As a condition of any sale or issuance of
Shares upon exercise of any Option, the Committee may require such arrangement
or undertakings, if any, as the Committee may deem necessary or advisable to
ensure compliance with any applicable federal or state securities law or
regulation, including, but not limited to, the following:
(i) a representation and warranty by the Grantee to
the Company, at the time any Option is exercised, that he is
acquiring the Shares to be issued to him for investment and
not with a view to, or for sale in connection with, the
distribution of any such Shares; and
(ii) a representation, warranty and/or agreement
to be bound by any legends that are, in the opinion of the
Committee, necessary or appropriate to comply with the
provisions of any securities laws deemed by the Committee to
be applicable to the issuance of the Shares and are endorsed
upon the Share certificates.
12. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by a stock option
committee (herein called the "Committee") consisting of not less than
two (2) Directors, all of whom shall be Disinterested Persons;
provided, however, that if no Committee is appointed, the Board may
administer the Plan provided that all members of the Board at the time
are Disinterested Persons. The Committee shall have all of the powers
of the Board with respect to the Plan. Any member of the Committee may
be removed at any time, with or without cause, by resolution of the
Board, and any vacancy occurring in the membership of the Committee may
be filled by appointment of the Board.
(b) The Committee, from time to time, may adopt rules and
regulations for carrying out the purposes f the Plan. The
determinations and the interpretation and construction of any provision
of the Plan by the Committee shall be final and conclusive.
(c) Any and all decisions or determinations of the Committee
shall be made either (i) by a majority vote of the members of the
Committee at a meeting or (ii) without a meeting by the unanimous
written approval of the members of the Committee.
13. INTERPRETATION.
(a) If any provision of the Plan should be held invalid for
any reason, such holding shall not affect the remaining provisions
hereof, but instead the Plan shall be construed and enforced as if such
provision had never been included in the Plan.
(b) This Plan shall be governed by the laws of the State of
Florida.
6
(c) Headings contained in this Plan are for convenience only
and shall in no manner be construed as part of this Plan.
(d) Any reference to the masculine, feminine, or neuter gender
shall be a reference to such other gender as is appropriate.
14. AMENDMENT AND DISCONTINUATION OF THE PLAN. The Committee may
from time to time amend the Plan or any Option consistent with the Plan;
provided, however, that (except to the extent provided in Section 9) no such
amendment may, without approval by the stockholders of the Company, (a) increase
the number of Shares reserved for Options, (b) change the requirements for
eligibility to receive Options, or (c) materially increase the benefits accruing
to the participants under the Plan; and provided, further, that (except to the
extent provided in Section 8) no amendment or suspension of the Plan or any
Option issued hereunder shall substantially impair any Option previously granted
to any Grantee without the consent of such Grantee.
7
15. EFFECTIVE DATE AND TERMINATION DATE. The effective date of this
Plan shall be March 17, 1993 provided that the Plan is approved by the Company's
Stockholder(s), and the Plan shall terminate on the tenth (10th) anniversary of
the effective date. After such termination date, no Options may be granted
hereunder; provided, however, that Options outstanding at such date may be
exercised pursuant to their terms.
Dated as of the 17TH HEICO CORPORATION
day of MARCH, 1998.
By: /S/ LAURANS A. MENDELSON
------------------------
Laurans A. Mendelson
Chairman, President and
Chief Executive Officer
8
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of HEICO Corporation on Form S-3 of our report dated December 24,
1997, except for the matter described in the fourth paragraph of Note 13, as to
which the date is January 27, 1998, appearing in and incorporated by reference
in the Annual Report on Form 10-K/A, Amendment No. 1, of HEICO Corporation for
the year ended October 31, 1997 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
Deloitte & Touche LLP
Certified Public Accountants
Miami, Florida
March 19, 1998
5
3-MOS
OCT-31-1998
JAN-31-1998
26,222,000
0
12,682,000
(381,000)
20,586,000
62,039,000
24,046,000
(15,218,000)
93,240,000
14,199,000
10,427,000
0
0
83,000
61,894,000
93,240,000
19,783,000
19,783,000
12,479,000
12,479,000
3,483,000
0
129,000
4,206,000
1,406,000
2,282,000
0
0
0
2,282,000
.28
.22
