Unassociated Document
As filed with the Securities and
Exchange Commission on September 16,
2009
SECURITIES AND EXCHANGE
COMMISSION
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF
1933
(Exact name of registrant as
specified in its charter)
(State or other jurisdiction
of incorporation
or organization)
(IRS Employer Identification No.)
(Address,
including zip code, and telephone number, including area
code,
of registrant’s principal
executive offices)
Executive
Vice President and Chief Financial Officer
Phone:
(954) 987-4000 Fax: (954) 987-8228
(Name,
address, including zip code, and telephone number, including
area
code, of agent for service)
One
Southeast Third Avenue, 27th Floor
Phone:
(305) 374-5600 Fax: (305) 374-5095
Approximate date of commencement of
proposed sale to the public: From time to time after this
registration statement becomes effective.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. þ
If this
Form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. þ
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and
“smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
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Large
accelerated filer þ
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Accelerated
filer o
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Non-accelerated
filer o
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Smaller
reporting company o
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Proposed
maximum
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Proposed
maximum
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Title
of each class
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Amount
to be
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offering
price
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aggregate
offering
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Amount
of
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of securities to be
registered (1)
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registered (2)
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per unit
(3)
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price
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registration fee
(4)
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Common
Stock, par value $.01 per share
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Class
A Common Stock, par value $.01 per share
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Preferred
Stock, par value $.01 per share
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Debt
Securities
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Depositary
Shares
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Warrants
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Units
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Subtotal
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Secondary
Offering of Common Stock
by Selling
Shareholders
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Secondary
Offering of Class A Common Stock
by
Selling Shareholders
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Total
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(1)
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This
Registration Statement also covers Common Stock, Class A Common Stock,
preferred stock, debt securities, depositary shares, warrants and units
which may be issued in exchange for, or upon conversion of, as the case
may be, the securities registered
hereunder.
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(2)
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An
indeterminate number of Common Stock, Class A Common Stock, preferred
stock, debt securities, depositary shares, warrants and units are being
registered.
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There
also is being registered hereunder an indeterminate number of rights to purchase
one one-hundredth of a share of our Series B Junior Participating Preferred
Stock, par value $.01 per share, which attach to each share of Common Stock
pursuant to the Rights Agreement described in the prospectus contained in this
Registration Statement. There also is being registered hereunder an
indeterminate number of rights to purchase one one-hundredth of a share of our
Series C Junior Participating Preferred Stock, par value $.01 per share, which
attach to each share of Class A Common Stock pursuant to the Rights Agreement
described in the prospectus contained in this Registration Statement. These
rights will be issued for no additional consideration because the value
attributable to the rights, if any, is reflected in the value of the Common
Stock and Class A Common Stock. Accordingly, no additional registration fee is
payable.
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(3)
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The
proposed maximum offering price per unit (a) has been omitted pursuant to
Instruction II.E of Form S-3 and (b) will be determined, from time to
time, by the Registrant in connection with the issuance by the Registrant
of the securities registered
hereunder.
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(4)
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In
accordance with Rules 456(b) and 457(r) under the Securities Act, the
Registrant is deferring payment of all of the registration
fee.
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[LOGO
OF HEICO CORPORATION]
HEICO
Corporation may offer Common Stock, Class A Common Stock, preferred stock, debt
securities, depositary shares, warrants and units from time to time in amounts,
at prices and on terms that will be determined at the time of any such offering.
In addition, the selling shareholders listed on the selling shareholder table
included in this prospectus may offer Common Stock and Class A Common Stock from
time to time in amounts, at prices and on terms that will be determined at the
time of any such offering. We will not receive any proceeds from sales of common
shares by the selling shareholders.
This
prospectus describes the general terms of these securities and the general
manner in which we and the selling shareholders will offer the securities. The
specific terms of any securities we or the selling shareholders offer will be
included in a supplement to this prospectus. The prospectus supplement will also
describe the specific manner in which we and the selling shareholders will offer
the securities. The prospectus supplements may also add, update or change
information contained in this prospectus. You should read this prospectus and
any supplements carefully before you invest. This prospectus may not be used to
sell securities unless accompanied by a prospectus supplement.
Our
Common Stock is traded on the New York Stock Exchange (“NYSE”) under the symbol
“HEI.” The last reported sale price of our Common Stock on September 9, 2009,
was $37.78 per share. Our Class A Common Stock is traded on the NYSE under the
symbol “HEI.A.” The last reported sale price of our Class A Common Stock on
September 9, 2009 was $30.49 per share. We will make application to list any
shares of Common Stock or Class A Common Stock sold pursuant to a supplement to
this prospectus on the NYSE. We have not determined whether we will list any of
the other securities we may offer on any exchange or over-the-counter market. If
we decide to seek the listing of any securities, the supplement will disclose
the exchange or market.
Investing
in these securities involves risks. You should carefully consider the
risks described under the “Risk Factors” section of this prospectus beginning on
page 7, our filings with the Securities and Exchange Commission (“SEC”) and any
applicable prospectus supplement.
Neither
the SEC nor any state securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
September
16, 2009
----------
You
should rely only on the information contained or incorporated by reference in
this prospectus and any prospectus supplement. Neither we nor the
selling shareholders have authorized anyone to provide you with different
information. If anyone provides you with different or inconsistent
information, you should not rely on it. Neither we nor the selling
shareholders are making an offer to sell these securities in any jurisdiction
where the offer or sale of these securities is not permitted. You
should assume that the information appearing in this prospectus is accurate only
as of the date on the front cover of this prospectus and that any information we
have incorporated by reference is accurate only as of the date of the document
incorporated by reference. Our business, financial condition, results
of operations and prospects may have changed since these dates.
This
prospectus is part of a Registration Statement on Form S-3 that we filed with
the SEC utilizing a “shelf” registration process. Under this shelf registration
process, we may, from time to time, sell any combination of securities described
in this prospectus in one or more offerings. In addition, the selling
shareholders listed on the table included in this prospectus may offer Common
Stock and Class A Common Stock from time to time in amounts, at prices and on
terms that will be determined at the time of any such offering. This prospectus
provides you with a general description of the securities we and the selling
shareholders may offer. Each time we or the selling shareholders sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering and the securities being offered.
The prospectus supplement may also add, update or change information contained
in this prospectus. You should read both this prospectus and any applicable
prospectus supplement together with the additional information described below
under the heading “Where You Can Find Additional Information.”
When used
in this prospectus and any prospectus supplement, the terms “HEICO,” “we,”
“our,” and “us” refer to HEICO Corporation and its subsidiaries. The following
summary contains basic information about us. It likely does not contain all the
information that is important to you. We encourage you to read this entire
prospectus, any prospectus supplement and the documents to which we have
referred you to before you choose to invest in these securities.
Certain
statements in this prospectus constitute “forward-looking statements” within the
meaning of the Private Securities Litigation Reform Act of 1995. All statements
contained herein that are not clearly historical in nature may be
forward-looking and the words “anticipate,” “believe,” “expect,” “estimate” and
similar expressions are generally intended to identify forward-looking
statements. Any forward-looking statements contained herein, in press releases,
written statements, or other documents filed with the Securities and Exchange
Commission or in communications and discussions with investors and analysts in
the normal course of business through meetings, phone calls and conference
calls, concerning our operations, economic performance and financial condition
are subject to known and unknown risks, uncertainties and contingencies. We have
based these forward-looking statements on our current expectations and
projections about future events. All forward-looking statements involve risks
and uncertainties, many of which are beyond our control, which may cause actual
results, performance or achievements to differ materially from anticipated
results, performance or achievements. Also, forward-looking statements are based
upon management’s estimates of fair values and of future costs, using currently
available information. Therefore, actual results may differ materially from
those expressed or implied in those statements. Factors that could cause such
differences include, but are not limited to:
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·
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Lower
demand for commercial air travel or airline fleet changes, which could
cause lower demand for our goods and
services;
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Product
specification costs and requirements, which could cause an increase to our
costs to complete contracts;
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·
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Governmental
and regulatory demands, export policies and restrictions, reductions in
defense, space or homeland security spending by U.S. and/or foreign
customers or competition from existing and new competitors, which could
reduce our sales;
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·
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Our
ability to introduce new products and product pricing levels, which could
reduce our sales or sales growth;
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·
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Our
ability to make acquisitions and achieve operating synergies from acquired
businesses, customer credit risk, interest rates and economic conditions
within and outside of the aviation, defense, space and electronics
industries, which could negatively impact our costs and revenues;
and
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·
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Our
ability to maintain effective internal controls, which could adversely
affect our business and the market price of our common
stock.
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We
undertake no obligation to publicly update or revise any forward-looking
statement, whether as a result of new information, future events or
otherwise.
This
summary highlights information contained elsewhere in this prospectus or the
documents incorporated by reference herein. It is not complete and may not
contain all of the information that you should consider before investing in
these securities. You should carefully read the entire prospectus, including the
“Risk Factors” section, the documents incorporated by reference into this
prospectus, and any prospectus supplement.
HEICO
Corporation
HEICO
Corporation through its subsidiaries believes it is the world’s largest
manufacturer of Federal Aviation Administration (“FAA”)-approved jet engine and
aircraft component replacement parts, other than the original equipment
manufacturers (“OEMs”) and their subcontractors. HEICO also believes it is a
leading manufacturer of various types of electronic equipment for the aviation,
defense, space, medical, telecommunication and electronic
industries.
The
Company was organized in 1993 creating a new holding corporation known as HEICO
Corporation and renaming the former holding company (formerly known as HEICO
Corporation, organized in 1957) as HEICO Aerospace Corporation. The
reorganization, which was completed in 1993, did not result in any change in the
business of the Company, its consolidated assets or liabilities or the relative
interests of its shareholders.
Our
business is comprised of two operating segments:
The Flight Support Group. Our
Flight Support Group, consisting of HEICO Aerospace Holdings Corp. (“HEICO
Aerospace”) and its subsidiaries, accounted for 75%, 76% and 71% of our net
sales in fiscal 2008, 2007 and 2006, respectively. The Flight Support Group uses
proprietary technology to design and manufacture jet engine and aircraft
component replacement parts for sale at lower prices than those manufactured by
OEMs. These parts are approved by the FAA and are the functional equivalent of
parts sold by OEMs. In addition, the Flight Support Group repairs and
distributes jet engine and aircraft components, avionics and instruments for
domestic and foreign commercial air carriers and aircraft repair companies as
well as military and business aircraft operators; and manufactures thermal
insulation products and other component parts primarily for aerospace, defense
and commercial applications.
The
Flight Support Group competes with the leading industry OEMs and, to a lesser
extent, with a number of smaller, independent parts distributors. Historically,
the three principal jet engine OEMs, General Electric (including CFM
International), Pratt & Whitney and Rolls Royce, have been the sole source
of substantially all jet engine replacement parts for their jet engines. Other
OEMs have been the sole source of replacement parts for their aircraft component
parts. While we believe that we currently supply less than 2% of the market for
jet engine and aircraft component replacement parts, we have consistently been
adding new products to our line and currently hold Parts Manufacturer Approvals,
which we refer to as “PMAs,” for over 7,000 jet engine and aircraft component
replacement parts.
We
believe that, based on our competitive pricing, reputation for high quality,
short lead time requirements, strong relationships with domestic and foreign
commercial air carriers and repair stations (companies that overhaul aircraft
engines and/or components), strategic relationships with Lufthansa and other
major airlines and successful track record of receiving PMAs from the FAA, we
are uniquely positioned to continue to increase our product lines and gain
market share.
The Electronic Technologies
Group. Our Electronic Technologies Group, consisting of HEICO Electronic
Technologies Corp. and its subsidiaries, accounted for 25%, 24% and 29% of our
net sales in fiscal 2008,
2007 and
2006, respectively. Through our Electronic Technologies Group, which derived
approximately 41% of its sales in fiscal 2008 from the sale of products and
services to U.S. and foreign military agencies, we design, manufacture and sell
various types of electronic, microwave and electro-optical products, including
infrared simulation and test equipment, laser rangefinder receivers, electrical
power supplies, back-up power supplies, power conversion products,
electromagnetic interference and radio frequency interference shielding, high
power capacitor charging power supplies, amplifiers, photodetectors, amplifier
modules, flash lamp drivers, laser diode drivers, arc lamp power supplies,
custom power supply designs, cable assemblies, high voltage interconnection
devices and wire, high voltage energy generators, high frequency power delivery
systems and high-speed interface products that link devices such as telemetry
receivers, digital cameras, high resolution scanners, simulation systems and
test systems to almost any computer.
In
October 1997, we entered into a strategic alliance with Lufthansa. Lufthansa is
the world’s largest independent provider of engineering and maintenance services
for commercial aircraft components and jet engines and supports over 200
airlines, governments and other customers. As part of this strategic alliance,
Lufthansa has invested over $60 million in our Company to acquire and maintain a
20% minority interest in HEICO Aerospace. This strategic alliance has
enabled us to expand domestically and internationally by enhancing our ability
to (i) identify key jet engine and aircraft component replacement parts with
significant profit potential by utilizing Lufthansa’s extensive operating data
on engine and component parts; (ii) introduce those parts throughout the world
in an efficient manner due to Lufthansa’s testing and diagnostic resources; and
(iii) broaden our customer base by capitalizing on Lufthansa’s established
relationships and alliances within the airline industry.
In March
2001, we entered into a joint venture with American Airlines, one of the world’s
largest airlines, to develop, design and sell FAA-approved jet engine and
aircraft component replacement parts through HEICO Aerospace. The joint venture
is partly owned by American Airlines. American Airlines and HEICO Aerospace have
agreed to cooperate regarding technical services and marketing support on a
worldwide basis. We have also entered into several strategic relationships with
other leading airlines, such as United Airlines (May 2002), Delta Air Lines
(February 2003), Japan Airlines (March 2004) and British Airways (May 2007).
These relationships accelerate HEICO’s efforts in developing a broad range of
jet engine and aircraft component replacement parts for FAA approval. Each of
the aforementioned airlines purchase these newly developed parts, and many of
HEICO Aerospace’s current FAA-approved parts product line, on an exclusive basis
from HEICO Aerospace.
In
February 2006, we entered into a Joint Cooperation Agreement with China Aviation
Import and Export Group Corporation (“CASGC”) of the Peoples Republic of China
to promote HEICO Aerospace’s FAA-approved aircraft and engine replacement
products in China. CASGC is a state-owned company, which is a comprehensive
service provider for aviation supplies, primarily engaged in the import and
export of aviation-related products in China including aircraft engines, spares,
ground support and safety equipment. CASGC’s business scope also covers leasing
maintenance, component repair and overhaul, consignment stores, manufacturing
and training.
HEICO has
continuously operated in the aerospace industry for more than 50 years. Since
assuming control in 1990, our current management has achieved significant sales
and profit growth through a broadened line of product offerings, an expanded
customer base, increased research and development expenditures and the
completion of a number of acquisitions. As a result of internal growth and
acquisitions, our net sales from continuing operations have grown from $26.2
million in fiscal 1990 to $582.3 million in fiscal 2008, a compound annual
growth rate of approximately 19%. During the same period, we improved our net
income from continuing operations from $2.0 million to $48.5 million,
representing a compound annual growth rate of approximately 20%.
Corporate
Information
Our
principal executive offices are located at 3000 Taft Street, Hollywood, Florida
33021, and our telephone number is (954) 987-4000. Our website
address is www.heico.com. Information on, or accessible through, our
website is not a part of, and is not incorporated into, this
prospectus.
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FOR
THE FISCAL YEAR ENDED OCTOBER 31
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FOR
THE NINE MONTHS ENDED
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2004
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2005
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2006
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2007
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2008
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July
31, 2009
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EARNINGS:
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Earnings
before minority interests and income taxes
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$ |
36,555,000 |
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$ |
44,041,000 |
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$ |
63,983,000 |
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$ |
82,816,000 |
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$ |
102,837,000 |
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$ |
63,896,000 |
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Fixed
charges
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2,336,000 |
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2,318,000 |
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4,886,000 |
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4,930,000 |
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4,666,000 |
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2,285,000 |
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Adjusted
earnings
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$ |
38,891,000 |
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$ |
46,359,000 |
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$ |
68,869,000 |
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$ |
87,746,000 |
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$ |
107,503,000 |
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$ |
66,181,000 |
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FIXED
CHARGES:
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Interest
expense
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$ |
1,090,000 |
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$ |
1,136,000 |
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$ |
3,523,000 |
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$ |
3,293,000 |
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$ |
2,314,000 |
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$ |
484,000 |
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Amortization
of debt issuance costs
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334,000 |
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289,000 |
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227,000 |
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230,000 |
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327,000 |
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208,000 |
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Portion
of rental payments deemed to be interest (1)
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912,000 |
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893,000 |
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1,136,000 |
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1,407,000 |
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2,025,000 |
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1,593,000 |
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Total
fixed charges
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$ |
2,336,000 |
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$ |
2,318,000 |
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$ |
4,886,000 |
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$ |
4,930,000 |
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$ |
4,666,000 |
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$ |
2,285,000 |
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Ratio
of earnings to fixed charges:
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16.6 |
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20.0 |
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14.1 |
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17.8 |
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23.0 |
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29.0 |
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(1) Interest
portion of rental expense is estimated to be one-third of rental
expense.
Investing
in our securities involves risks. In addition to the information set
forth elsewhere in this prospectus and in the documents incorporated by
reference into this prospectus and in any prospectus supplement, you should
carefully consider the following factors relating to us and our securities in
deciding whether to invest in our securities.
Our
success is highly dependent on the performance of the aviation industry, which
could be impacted by lower demand for commercial air travel or airline fleet
changes causing lower demand for our goods and services.
Economic
factors and passenger security concerns that affect the aviation industry also
affect our business. The aviation industry has historically been subject to
downward cycles from time to time which reduce the overall demand for jet engine
and aircraft component replacement parts and repair and overhaul services, and
such downward cycles result in lower prices and greater credit risk. These
economic factors and passenger security concerns may have a material adverse
effect on our business, financial condition and results of
operations.
We
are subject to governmental regulation and our failure to comply with these
regulations could cause the government to withdraw or revoke our authorizations
and approvals to do business and could subject us to penalties and sanctions
that could harm our business.
Governmental
agencies throughout the world, including the FAA, highly regulate the
manufacture, repair and overhaul of aircraft parts and accessories. We include,
with the replacement parts that we sell to our customers, documentation
certifying that each part complies with applicable regulatory requirements and
meets applicable standards of airworthiness established by the FAA or the
equivalent regulatory agencies
in other
countries. In addition, our repair and overhaul operations are subject to
certification pursuant to regulations established by the FAA. Specific
regulations vary from country to country, although compliance with FAA
requirements generally satisfies regulatory requirements in other countries. The
revocation or suspension of any of our material authorizations or approvals
would have an adverse effect on our business, financial condition and results of
operations. New and more stringent government regulations, if adopted and
enacted, could have an adverse effect on our business, financial condition and
results of operations. In addition, some sales to foreign countries of the
equipment manufactured by our Electronic Technologies Group require approval or
licensing from the U.S. government. Denial of export licenses could reduce our
sales to those countries and could have a material adverse effect on our
business.
The
retirement of commercial aircraft could reduce our revenues.
Our
Flight Support Group designs, engineers, manufactures and distributes jet engine
and aircraft component replacement parts and also repairs, refurbishes and
overhauls jet engine and aircraft components. If aircraft or engines for which
we have replacement parts or supply repair and overhaul services are retired and
there are fewer aircraft that require these parts or services, our revenues may
decline.
Reductions
in defense, space or homeland security spending by U.S. and/or foreign customers
could reduce our revenues.
In fiscal
2008, approximately 41% of the sales of our Electronic Technologies Group were
derived from the sale of products and services to U.S. and foreign military
agencies and their suppliers. A decline in defense, space or homeland security
budgets or additional restrictions imposed by the U.S. government on sales of
products or services to foreign military agencies could lower sales of our
products and services.
Intense
competition from existing and new competitors may harm our
business.
We face
significant competition in each of our businesses.
Flight
Support Group
|
|
·
|
For
jet engine replacement parts, we compete with the industry’s leading jet
engine OEMs, particularly Pratt & Whitney and General
Electric.
|
|
|
·
|
For
the overhaul and repair of jet engine and airframe components as well as
avionics and navigation systems, we compete
with:
|
|
|
-
|
major
commercial airlines, many of which operate their own maintenance and
overhaul units;
|
|
|
-
|
OEMs,
which manufacture, repair and overhaul their own parts;
and
|
|
|
-
|
other
independent service companies.
|
Electronic
Technologies Group
|
|
·
|
For
the design and manufacture of various types of electronic and
electro-optical equipment as well as high voltage interconnection devices
and high speed interface products, we compete in a fragmented marketplace
with a number of companies, some of which are well
capitalized.
|
The
aviation aftermarket supply industry is highly fragmented, has several highly
visible leading companies, and is characterized by intense competition. Some of
our OEM competitors have greater name recognition than HEICO, as well as
complementary lines of business and financial, marketing and other resources
that HEICO does not have. In addition, OEMs, aircraft maintenance providers,
leasing companies and FAA-certificated repair facilities may attempt to bundle
their services and product offerings in the supply industry, thereby
significantly increasing industry competition. Moreover, our smaller competitors
may be able to offer more attractive pricing of parts as a result of lower labor
costs or other factors. A variety of potential actions by any of our
competitors, including a reduction of product prices or the establishment by
competitors of long-term relationships with new or existing customers, could
have a material adverse effect on our business, financial condition and results
of operations. Competition typically intensifies during cyclical downturns in
the aviation industry, when supply may exceed demand. We may not be able to
continue to compete effectively against present or future competitors, and
competitive pressures may have a material and adverse effect on our business,
financial condition and results of operations.
Our
success is dependent on the development and manufacture of new products,
equipment and services. Our inability to develop, manufacture and introduce new
products and services at profitable pricing levels could reduce our sales or
sales growth.
The
aviation, defense, space and electronics industries are constantly undergoing
development and change and, accordingly, new products, equipment and methods of
repair and overhaul service are likely to be introduced in the future. In
addition to manufacturing electronic and electro-optical equipment and selected
aerospace and defense components for OEMs and the U.S. government and repairing
jet engine and aircraft components, we re-design sophisticated aircraft
replacement parts originally developed by OEMs so that we can offer the
replacement parts for sale at substantially lower prices than those manufactured
by the OEMs. Consequently, we devote substantial resources to research and
product development. Technological development poses a number of challenges and
risks, including the following:
|
|
·
|
We
may not be able to successfully protect the proprietary interests we have
in various aircraft parts, electronic and electro-optical equipment and
our repair processes;
|
|
|
·
|
As
OEMs continue to develop and improve jet engines and aircraft components,
we may not be able to re-design and manufacture replacement parts that
perform as well as those offered by OEMs or we may not be able to
profitably sell our replacement parts at lower prices than the
OEMs;
|
|
|
·
|
We
may need to expend significant capital
to:
|
|
|
-
|
purchase
new equipment and machines,
|
|
|
-
|
train
employees in new methods of production and service,
and
|
|
|
-
|
fund
the research and development of new products;
and
|
|
|
·
|
Development
by our competitors of patents or methodologies that preclude us from the
design and manufacture of aircraft replacement parts or electrical and
electro-optical equipment could adversely affect our business, financial
condition and results of
operations.
|
In
addition, we may not be able to successfully develop new products, equipment or
methods of repair and overhaul service, and the failure to do so could have a
material adverse effect on our business, financial condition and results of
operations.
Product
specification costs and requirements could cause an increase to our costs to
complete contracts.
The costs
to meet customer specifications and requirements could result in us having to
spend more to design or manufacture products and this could reduce our profit
margins on current contracts or those we obtain in the future.
We
may incur product liability claims that are not fully insured.
Our jet
engine and aircraft component replacement parts and repair and overhaul services
expose our business to potential liabilities for personal injury or death as a
result of the failure of an aircraft component that we have designed,
manufactured or serviced. The commercial aviation industry occasionally has
catastrophic losses that may exceed policy limits. An uninsured or partially
insured claim, or a claim for which third-party indemnification is not
available, could have a material adverse effect on our business, financial
condition and results of operations. Additionally, insurance coverage costs may
become even more expensive in the future. Our customers typically require us to
maintain substantial insurance coverage and our inability to obtain insurance
coverage at commercially reasonable rates could have a material adverse effect
on our business.
We
may not have the administrative, operational or financial resources to continue
to grow the company.
We have
experienced rapid growth in recent periods and intend to continue to pursue an
aggressive growth strategy, both through acquisitions and internal expansion of
products and services. Our growth to date has placed, and could continue to
place, significant demands on our administrative, operational and financial
resources. We may not be able to grow effectively or manage our growth
successfully, and the failure to do so could have a material adverse effect on
our business, financial condition and results of operations.
We
may not be able to execute our acquisition strategy, which could slow our
growth.
A key
element of our strategy is growth through the acquisition of additional
companies. Our acquisition strategy is affected by and poses a number of
challenges and risks, including the following:
|
|
·
|
Availability
of suitable acquisition candidates;
|
|
|
·
|
Availability
of capital;
|
|
|
·
|
Diversion
of management’s attention;
|
|
|
·
|
Integration
of the operations and personnel of acquired
companies;
|
|
|
·
|
Potential
write downs of acquired intangible
assets;
|
|
|
·
|
Potential
loss of key employees of acquired
companies;
|
|
|
·
|
Use
of a significant portion of our available
cash;
|
|
|
·
|
Significant
dilution to our shareholders for acquisitions made utilizing our
securities; and
|
|
|
·
|
Consummation
of acquisitions on satisfactory
terms.
|
We may
not be able to successfully execute our acquisition strategy, and the failure to
do so could have a material adverse effect on our business, financial condition
and results of operations.
We
may incur environmental liabilities and these liabilities may not be covered by
insurance.
Our
operations and facilities are subject to a number of federal, state and local
environmental laws and regulations, which govern, among other things, the
discharge of hazardous materials into the air and water as well as the handling,
storage and disposal of hazardous materials. Pursuant to various environmental
laws, a current or previous owner or operator of real property may be liable for
the costs of removal or remediation of hazardous materials. Environmental laws
typically impose liability whether or not the owner or operator knew of, or was
responsible for, the presence of hazardous materials. Although management
believes that our operations and facilities are in material compliance with
environmental laws and regulations, future changes in them or interpretations
thereof or the nature of our operations may require us to make significant
additional capital expenditures to ensure compliance in the future.
We do not
maintain specific environmental liability insurance and the expenses related to
these environmental liabilities, if we are required to pay them, could have a
material adverse effect on our business, financial condition and results of
operations.
We
are dependent on key personnel and the loss of these key personnel could have a
material adverse effect on our success.
Our
success substantially depends on the performance, contributions and expertise of
our senior management team led by Laurans A. Mendelson, our Chairman, President
and Chief Executive Officer. Technical employees are also critical to our
research and product development, as well as our ability to continue to
re-design sophisticated products of OEMs in order to sell competing replacement
parts at substantially lower prices than those manufactured by the OEMs. The
loss of the services of any of our executive officers or other key employees or
our inability to continue to attract or retain the necessary personnel could
have a material adverse effect on our business, financial condition and results
of operations.
Our
executive officers and directors have significant influence over our management
and direction.
As of
September 9, 2009, collectively our executive officers and entities controlled
by them, our 401(k) Plan and members of the Board of Directors beneficially
owned approximately 26% of our outstanding Common Stock and approximately 7% of
our outstanding Class A Common Stock. Accordingly, they will be able to
substantially influence the election of the Board of Directors and control our
business, policies and affairs, including our position with respect to proposed
business combinations and attempted takeovers.
Unless we
inform you otherwise in a prospectus supplement, we intend to use the net
proceeds of any securities sold under this prospectus for general corporate
purposes. General corporate purposes may include any of the
following:
|
|
·
|
funding
capital expenditures;
|
|
|
·
|
paying
for possible acquisitions or the expansion of our business;
and
|
|
|
·
|
providing
working capital.
|
When a
particular series of securities is offered, the prospectus supplement relating
to that offer will set forth our intended use for the proceeds we receive from
the sale of those securities. Pending the application of the net proceeds, we
may invest the proceeds in short-term, interest-bearing instruments or other
investment-grade securities.
From time
to time, we engage in preliminary discussions and negotiations with various
businesses in order to explore the possibility of an acquisition or investment.
However, as of the date of this prospectus, we have not entered into any
agreements or arrangements which would make an acquisition or investment
probable under Rule 3-05(a) of Regulation S-X. In addition, as of the
date of this prospectus, we have not entered into any agreements or arrangements
for capital expenditures that would be paid for from the proceeds of this
offering.
We will
not receive any proceeds from sales of common shares by the selling
shareholders.
We have
historically paid semi-annual cash dividends on both our Common Stock and Class
A Common Stock. In July 2009, we paid our 62nd consecutive semi-annual cash
dividend since 1979. Our Board of Directors presently intends to continue the
payment of regular semi-annual cash dividends on both classes of our common
stock. Our ability to pay dividends could be affected by future business
performance, liquidity, capital needs, alternative investment opportunities and
loan covenants under our revolving credit facility. For the frequency
and amount of cash dividends paid on our Common Stock and Class A Common Stock
for the two most recent fiscal years and quarterly periods, see the section
“Price Range of Common Stock and Class A Common Stock and
Dividends.”
CLASS
A COMMON STOCK AND DIVIDENDS
Our
Common Stock and Class A Common Stock are listed and traded on the NYSE under
the symbols “HEI,” and “HEI.A,” respectively. The following tables set forth,
for the periods indicated, the high and low share prices for the Common Stock
and Class A Common Stock as reported on the NYSE, as well as the amount of cash
dividends paid per share during such periods.
Common
Stock
|
|
|
High
|
|
|
Low
|
|
|
Cash
Dividends
Per Share
|
|
|
Fiscal
2007:
|
|
|
|
|
|
|
|
|
|
|
First
Quarter
|
|
$ |
40.07 |
|
|
$ |
34.01 |
|
|
$ |
.04 |
|
|
Second
Quarter
|
|
|
40.35 |
|
|
|
33.76 |
|
|
|
— |
|
|
Third
Quarter
|
|
|
44.43 |
|
|
|
35.81 |
|
|
|
.04 |
|
|
Fourth
Quarter
|
|
|
54.52 |
|
|
|
39.51 |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal
2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First
Quarter
|
|
$ |
56.92 |
|
|
$ |
42.00 |
|
|
$ |
.05 |
|
|
Second
Quarter
|
|
|
52.78 |
|
|
|
41.80 |
|
|
|
— |
|
|
Third
Quarter
|
|
|
54.35 |
|
|
|
30.16 |
|
|
|
.05 |
|
|
Fourth
Quarter
|
|
|
48.27 |
|
|
|
26.49 |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal
2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First
Quarter
|
|
$ |
42.78 |
|
|
$ |
24.30 |
|
|
$ |
.06 |
|
|
Second
Quarter
|
|
|
41.64 |
|
|
|
21.40 |
|
|
|
— |
|
|
Third
Quarter
|
|
|
40.50 |
|
|
|
26.32 |
|
|
|
.06 |
|
As of
September 9, 2009, there were 598 holders of record of our Common
Stock.
Class A Common
Stock
|
|
|
High
|
|
|
Low
|
|
|
Cash
Dividends
Per Share
|
|
|
Fiscal
2007:
|
|
|
|
|
|
|
|
|
|
|
First
Quarter
|
|
$ |
33.01 |
|
|
$ |
28.72 |
|
|
$ |
.04 |
|
|
Second
Quarter
|
|
|
34.29 |
|
|
|
29.10 |
|
|
|
— |
|
|
Third
Quarter
|
|
|
37.58 |
|
|
|
30.65 |
|
|
|
.04 |
|
|
Fourth
Quarter
|
|
|
44.36 |
|
|
|
32.65 |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal
2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First
Quarter
|
|
$ |
44.63 |
|
|
$ |
32.05 |
|
|
$ |
.05 |
|
|
Second
Quarter
|
|
|
42.24 |
|
|
|
32.80 |
|
|
|
— |
|
|
Third
Quarter
|
|
|
41.68 |
|
|
|
24.87 |
|
|
|
.05 |
|
|
Fourth
Quarter
|
|
|
36.19 |
|
|
|
19.82 |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal
2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First
Quarter
|
|
$ |
31.36 |
|
|
$ |
18.27 |
|
|
$ |
.06 |
|
|
Second
Quarter
|
|
|
30.63 |
|
|
|
17.34 |
|
|
|
— |
|
|
Third
Quarter
|
|
|
32.76 |
|
|
|
23.26 |
|
|
|
.06 |
|
As of
September 9, 2009, there were 595 holders of record of our Class A Common
Stock.
The table
below sets forth, as of September 9, 2009, the number of shares of our Common
Stock and our Class A Common Stock that each selling shareholder beneficially
owns. The percentage of outstanding shares of Common Stock and Class A Common
Stock beneficially owned before the offering is based on 10,395,141 shares of
our Common Stock and 15,695,984 shares of our Class A Common Stock outstanding
as of September 9, 2009 and is calculated in accordance with Rule 13d-3 under
the Exchange Act.
The term
“selling shareholders,” as used in this prospectus, includes each of the holders
listed below and its donees or heirs receiving shares from the holder listed
below after the date of this prospectus. The selling shareholders may sell,
transfer or otherwise dispose of some or all of their shares of Common Stock and
Class A Common Stock, including shares of Common Stock and Class A Common Stock
and other of our securities not covered by this prospectus, in transactions
exempt from the registration requirements of the Securities Act of 1933,
including in open-market transactions in reliance on Rule 144 under the
Securities Act. We will update, amend or supplement this prospectus from time to
time to update the disclosure in this section as may be required.
The
selling shareholders will not bear the expenses of the registration in
connection with the offering of their shares. The registration of the selling
shareholders' shares of Common Stock and Class A Common Stock does not
necessarily mean that the selling shareholders will offer or sell any of their
shares.
|
Name
|
|
Shares
Beneficially Owned Prior to Offering*
|
|
|
Percentage
of Outstanding Shares Beneficially Owned Prior to Offering*
|
|
|
|
|
|
|
|
|
|
|
Mendelson
Reporting Group
|
|
|
|
|
|
|
|
Common Stock
(1)
|
|
|
1,926,922 |
|
|
|
17.5 |
% |
|
Class A Common Stock
(2)
|
|
|
398,058 |
|
|
|
2.5 |
% |
_____________________________________
|
(1)
|
Consists
of 1,049,623 shares deemed to be beneficially owned by Laurans A.
Mendelson, 445,901 shares deemed to be beneficially owned by Eric A.
Mendelson, and 431,398 shares deemed to be beneficially owned by Victor H.
Mendelson. Laurans A. Mendelson is the Chairman of the Board,
President and Chief Executive Officer of HEICO. Eric A.
Mendelson is the President – Flight Support Group, President and Chief
Executive Officer of HEICO Aerospace Holdings Corp., and a director of
HEICO. Victor H. Mendelson is the President – Electronic
Technologies Group, President and Chief Executive Officer of HEICO
Electronic Technologies Corp., and a director of
HEICO.
|
|
(2)
|
Consists
of 84,631 shares deemed to be beneficially owned by Laurans A. Mendelson,
115,106 shares deemed to be beneficially owned by Eric A. Mendelson,
133,612 shares deemed to be beneficially owned by Victor H. Mendelson and
64,709 shares owned by Mendelson International Corporation, which may be
deemed to be beneficially owned by each or any of Laurans, Eric or Victor
Mendelson, however Laurans Mendelson disclaims beneficial ownership of
these shares.
|
|
*
|
We
have determined the number and percentage of shares beneficially owned in
accordance with Rule 13d-3 of the Exchange Act and this information does
not necessarily indicate ownership for any other
purpose.
|
General
We are
authorized to issue 30,000,000 shares of Common Stock, par value $.01 per share,
30,000,000 shares of Class A Common Stock, par value $.01 per share, and
10,000,000 shares of Preferred Stock, par value $.01 per share, of which 300,000
shares have been designated as Series B Junior Participating Preferred Stock and
300,000 shares have been designated as Series C Junior Participating Preferred
Stock. As of September 9, 2009, (i) 10,395,141 shares of Common Stock
were outstanding and such shares were held by approximately 598 holders of
record and (ii) 15,695,984 shares of Class A Common Stock were outstanding and
such shares were held by approximately 595 holders of record. None of the
Preferred Stock is outstanding.
The
following descriptions of the Common Stock, the Class A Common Stock, the
Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock
are based on our Articles and Bylaws and applicable Florida law.
Common
Stock
Each
holder of Common Stock is entitled to one vote for each share owned of record on
all matters presented to the shareholders. In the event of a
liquidation, dissolution or winding up of the company, the holders of Common
Stock are entitled to share equally and ratably in the assets of the company, if
any, remaining after the payment of all of our debts and liabilities and the
liquidation preference of any outstanding Preferred Stock. The Common
Stock has no preemptive rights, no cumulative voting rights and no redemption,
sinking fund or conversion provisions. As of September 9, 2009,
3,220,376 shares are reserved for issuance as either Common Stock or Class A
Common Stock under our existing stock option plans.
Holders
of Common Stock are entitled to receive dividends if, as and when declared by
the Board of Directors out of funds legally available therefor, subject to the
dividend and liquidation rights of any Preferred Stock that may be issued and
outstanding and subject to any dividend restrictions in our revolving credit
facility. No dividends or other distributions (including redemptions
or repurchases of shares of capital stock) may be made if, after giving effect
to any such dividends or distributions, we would not be able to pay our debts as
they become due in the usual course of business or our total assets would be
less than the sum of its total liabilities plus the amount that would be needed
at the time of a liquidation to satisfy the preferential rights of any holders
of Preferred Stock.
The
transfer agent and registrar for the Common Stock is BNY Mellon Shareowner
Services, Pittsburgh, Pennsylvania.
Class
A Common Stock
Each
holder of Class A Common Stock is entitled to the identical rights as the
holders of Common Stock except that each share of Common Stock will entitle the
holder thereof to one vote in respect of matters submitted for the vote of
holders of Common Stock, whereas each share of Class A Common Stock will entitle
the holder thereof to one-tenth of a vote on such matters.
Preferred
Stock, Series B Preferred Stock and Series C Preferred Stock
Our Board
of Directors is authorized, without further shareholder action, to designate and
issue from time to time one or more series of Preferred Stock, including the
Series B Preferred Stock and Series C Preferred Stock. The Board of
Directors may fix and determine the designations, preferences and relative
rights and qualifications, limitations or restrictions of any series of
Preferred Stock so established, including voting powers, dividend rights,
liquidation preferences, redemption rights and conversion
privileges. Because the Board of Directors has the power to establish
the preferences and rights of each series of Preferred Stock, it may afford the
holders of any series of Preferred Stock preferences and rights, voting or
otherwise senior to the rights of holders of Common Stock and Class A Common
Stock. Subject to adjustment, holders of shares of the Series B and
Series C Preferred Stock will be entitled to, among other things, (i) receive,
when, as and if declared by the Board of Directors cash dividends in an amount
per share equal to 100 times the aggregate per share amount of all cash
dividends declared or paid on the applicable class of stock and (ii) 100 votes
per share of Series B Preferred Stock and 10 votes per share of Series C
Preferred Stock on all matters submitted to a vote of the shareholders and the
right to vote together with the holders of shares of Common Stock and Class A
Common Stock as a single voting group on all matters submitted to a vote of the
shareholders. As of the date of this Prospectus, the Board of
Directors has not issued any Preferred Stock or Series B or Series C Preferred
Stock, and has no plans to issue any shares of Preferred Stock or Series B or
Series C Preferred Stock.
Anti-takeover
Effects of Certain Provisions of Florida Law, Our Articles of Incorporation and
Bylaws, and the Preferred Stock Purchase Rights
Articles and
Bylaws. Some of the provisions of our articles of
incorporation and bylaws may be deemed to have anti-takeover effects and may
discourage, delay, defer or prevent a takeover attempt that a shareholder might
consider in its best interest. These provisions do the
following:
|
|
·
|
establish
advance notice procedures for the nomination of candidates for election as
directors and for shareholder proposals to be considered at annual
shareholders’ meetings;
|
|
|
·
|
provide
that special meetings of the shareholders may be called by the Chairman of
the Board of Directors or the President of HEICO or by a majority of the
Board of Directors;
|
|
|
·
|
authorize
the issuance of 10,000,000 shares of Preferred Stock with the
designations, rights, preferences and limitations as may be determined
from time to time by the Board of
Directors;
|
|
|
·
|
authorize
the issuance of 30,000,000 shares of Common Stock having one vote per
share; and
|
|
|
·
|
authorize
the issuance of 30,000,000 shares of Class A Common Stock having 1/10th
vote per share.
|
Accordingly,
without shareholder approval, the Board of Directors can, among other
things,
|
|
·
|
issue
preferred stock with dividend, liquidation, conversion, voting or other
rights that could adversely affect the voting powers or other rights of
holders of our Common Stock and Class A Common Stock;
and
|
|
|
·
|
help
maintain the voting power of existing Common Stock shareholders and deter
or frustrate takeover attempts that existing holders of Common Stock might
consider to be in their best interest by issuing additional shares of
Class A Common Stock.
|
Rights. In
addition, each Common Stock right entitles the registered holder to purchase
from us one one-hundredth of a share of our Series B Junior Participating
Preferred Stock, par value $.01 per share, at a price of $45.00 per one
one-hundredth of a share of Series B Preferred Stock, subject to
adjustment. Furthermore, each Class A Common Stock right entitles the
registered holder to purchase from us one one-hundredth of a share of our Series
C Junior Participating Preferred Stock, par value $.01 per share, at a price of
$39.00 per one one-hundredth of a share Series C Preferred Stock, subject to
adjustment. The rights trade with each outstanding share of Common
Stock and Class A Common Stock, as applicable. The rights applicable
to the Common Stock or Class A Common Stock are not exercisable or transferable
apart from the respective class of stock until a person or group acquires 15% or
more of the outstanding shares of that class of stock or commences, or announces
an intention to commence, a tender offer for 15% or more of the outstanding
shares of that class of stock. The rights applicable to the Common
Stock or Class A Common Stock expire on November 2, 2013, and will cause
substantial dilution to a person or a group who attempts to acquire our company
on terms not approved by the Board of Directors or who acquires 15% or more of
the outstanding shares of Common Stock or Class A Common Stock without approval
of the Board of Directors. We can redeem the rights 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 outstanding Common Stock
or Class A Common Stock or until a person commences or announces an intention to
commence a tender offer for 15% or more of the outstanding Common Stock or Class
A Common Stock.
Subject
to adjustment, holders of shares of the Series B and Series C Preferred Stock
will be entitled to, among other things, (i) receive, when, as and if declared
by the Board of Directors, cash dividends in an amount per share equal to 100
times the aggregate per share amount of all cash dividends declared or paid on
the applicable class of stock and (ii) 100 votes per share of Series B Preferred
Stock and 10 votes per share of Series C Preferred Stock on all matters
submitted to a vote of the shareholders and the right to vote together with the
holders of shares of common stock as a single voting group on all
matters submitted to a vote of the shareholders.
Florida
Law. Furthermore, some of the provisions of the Florida
Business Corporation Act could have the effect of delaying, deferring or
preventing a change in control.
The
following description, together with the additional information we include in
any applicable prospectus supplement, summarizes the material terms and
provisions of the debt securities that we may offer under this prospectus. While
the terms we have summarized below will generally apply to any future debt
securities we may offer under this prospectus, we will describe the particular
terms of any debt securities that we may offer in more detail in the applicable
prospectus supplement. The terms of any debt securities we offer
under a prospectus supplement may differ from the terms we describe
below.
We may
offer debt securities in the form of either senior debt securities or
subordinated debt securities. The senior debt securities and the
subordinated debt securities are together referred to in this prospectus as the
“debt securities.” Unless otherwise specified in a supplement to this
prospectus, the senior debt securities will be our direct, unsecured obligations
and will rank equally with all of our other unsecured and unsubordinated
indebtedness. The subordinated debt securities generally will be
entitled to payment only after payment of our senior debt. See
“--Subordination” below.
The debt
securities will be issued under an indenture between us and a
trustee. We have summarized below the general features of the debt
securities to be governed by the indenture. The form of summary is
not complete. The
form of indenture has been filed as an exhibit to the registration statement
that we have filed with the SEC, of which this prospectus forms a
part. We encourage you to read the applicable
prospectus
supplements related to the debt securities that we may offer under this
prospectus, as well as the indenture. Capitalized terms used in the
summary have the meanings specified in the indenture.
General
The terms
of each series of debt securities will be established by or pursuant to a
resolution of our Board of Directors, or a committee thereof, and set forth or
determined in the manner provided in an officers’ certificate or by a
supplemental indenture. The particular terms of each series of debt
securities will be described in a prospectus supplement relating to such series,
including any pricing supplement.
We can
issue an unlimited amount of debt securities under the indenture that may be in
one or more series with the same or various maturities, at par, at a premium or
at a discount. We will set forth in a prospectus supplement,
including any pricing supplement, relating to any series of debt securities
being offered, the aggregate principal amount and the following terms of the
debt securities:
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the
principal amount being offered, and, if a series, the total amount
authorized and the total amount
outstanding;
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any
limit on the amount that may be
issued;
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whether
or not we will issue the series of debt securities in global form and, if
so, the terms and who the depositary will
be;
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the
principal amount due at maturity, and whether the debt securities will be
issued with any original issue
discount;
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whether
and under what circumstances, if any, we will pay additional amounts on
any debt securities held by a person who is not a United States person for
tax purposes, and whether we can redeem the debt securities if we have to
pay such additional amounts;
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the
annual interest rate, which may be fixed or variable, or the method for
determining the rate, the date interest will begin to accrue, the dates
interest will be payable and the regular record dates for interest payment
dates or the method for determining such
dates;
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whether
or not the debt securities will be secured or unsecured, and the terms of
any secured debt;
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the
terms of the subordination of any series of subordinated
debt;
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the
place where payments will be
payable;
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restrictions
on transfer, sale or other assignment, if
any;
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our
right, if any, to defer payment of interest and the maximum length of any
such deferral period;
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provisions
for a sinking fund purchase or other analogous fund, if
any;
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the
date, if any, on which, and the price at which we are obligated, pursuant
to any mandatory sinking fund or analogous fund provisions or otherwise,
to redeem, or at the holder’s option to purchase, the series of debt
securities;
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a
discussion of any material or special United States federal income tax
considerations applicable to the debt
securities;
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information
describing any book-entry features;
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the
procedures for any auction and remarketing, if
any;
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the
denominations in which we will issue the series of debt securities, if
other than denominations of $1,000 and any integral multiple
thereof;
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if
other than dollars, the currency in which the series of debt securities
will be denominated; and
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any
other specific terms, preferences, rights or limitations of, or
restrictions on, the debt securities, including any events of default that
are in addition to those described in this prospectus or any covenants
provided with respect to the debt securities that are in addition to those
described above, and any terms which may be required by us or be advisable
under applicable laws or regulations or advisable in connection with the
marketing of the debt securities.
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We may issue debt securities that
provide for an amount less than their stated principal amount to be due and
payable upon declaration of acceleration of their maturity pursuant to the terms
of the indenture. We will provide you with information on the federal
income tax considerations and other special considerations applicable to any of
these debt securities in the applicable prospectus supplement.
Conversion
of Exchange Rights
We will
set forth in the prospectus supplement the terms on which a series of debt
securities may be convertible into or exchangeable for common stock or other
securities of ours or a third-party, including the conversion or exchange rate,
as applicable, or how it will be calculated, and the applicable conversion or
exchange period. We will include provisions as to whether conversion
or exchange is mandatory, at the option of the holder or at our
option. We may include provisions pursuant to which the number of our
securities or the securities of a third-party that the holders of the series of
debt securities receive upon conversion or exchange would, under the
circumstances described in those provisions, be subject to adjustment, or
pursuant to which those holders would, under those circumstances, receive other
property upon conversion or exchange, for example in the event of our merger or
consolidation with another entity.
Covenants
We will
set forth in the applicable prospectus supplement any restrictive covenants
applicable to any issue of debt securities.
Consolidation,
Merger and Sale of Assets
The
indenture in the form initially filed as an exhibit to the registration
statement of which this prospectus is a part does not contain any covenant which
restricts our ability to merge or consolidate, or sell, convey, transfer or
otherwise dispose of all or substantially all of our assets. However, any
successor of ours or acquirer of such assets must assume all of our obligations
under the indenture and the debt securities.
Events
of Default
The
following are events of default under the indenture with respect to any series
of debt securities that we may issue:
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if
we fail to pay interest when due and payable and our failure continues for
30 days and the time for payment has not been extended or
deferred;
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if
we fail to pay the principal, or premium, if any, when due and payable and
the time for payment has not been extended or
delayed;
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if
we fail to observe or perform any other covenant contained in the debt
securities or the indenture, other than a covenant specifically relating
to another series of debt securities, and our failure continues for 90
days after we receive notice from the trustee or holders of at least 25%
in aggregate principal amount of the outstanding debt securities of the
applicable series;
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if
specified events of bankruptcy, insolvency or reorganization occur;
and
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any
other event of default provided with respect to debt securities of that
series that is described in the applicable prospectus supplement
accompanying this prospectus.
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No event
of default with respect to a particular series of debt securities (except as to
certain events of bankruptcy, insolvency or reorganization) necessarily
constitutes an event of default with respect to any other series of debt
securities. The occurrence of an event of default may constitute an
event of default under our bank credit agreements in existence from time to
time. In addition, the occurrence of certain events of default or an
acceleration under the indenture may constitute an event of default under
certain of our other indebtedness outstanding from time to time.
If an
event of default with respect to debt securities of any series at the time
outstanding occurs and is continuing, then the trustee or the holders of not
less than a majority in principal amount of the outstanding debt securities of
that series may, by a notice in writing to us (and to the trustee if given by
the holders), declare to be due and payable immediately the principal (or, if
the debt securities of that series are discount securities, that portion of the
principal amount as may be specified in the terms of that series) of, and
accrued and unpaid interest, if any, on all debt securities of that
series. In the case of an event of default resulting from certain
events of bankruptcy, insolvency or reorganization, the principal (or such
specified amount) of and accrued and unpaid interest, if any, on all outstanding
debt securities will become and be immediately due and payable without any
declaration or other act on the part of the trustee or any holder of outstanding
debt securities. At any time after a declaration of acceleration with
respect to debt securities of any series has been made, but before a judgment or
decree for payment of the money due has been obtained by the trustee, the
holders of a majority in aggregate principal amount of the outstanding debt
securities of that series may, by written notice to us and to the trustee,
rescind and annul the acceleration if all events of default, other than the
non-payment of accelerated principal and interest, if any, with respect to debt
securities of that series, have been cured or waived as provided in the
indenture. We refer you to the prospectus supplement relating to any
series of debt securities that are
discount
securities for the particular provisions relating to acceleration of a portion
of the principal amount of such discount securities upon the occurrence of an
event of default.
The
indenture provides that the trustee will be under no obligation to exercise any
of its rights or powers under the indenture at the request of any holder of
outstanding debt securities, unless the trustee receives indemnity satisfactory
to it against any loss, liability or expense. Subject to certain
rights of the trustee, the holders of a majority in principal amount of the
outstanding debt securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee or exercising any trust or power conferred on the trustee with
respect to the debt securities of that series.
No holder
of any debt security of any series will have any right to institute any
proceeding, judicial or otherwise, with respect to the indenture or for the
appointment of a receiver or trustee, or for any remedy under the indenture,
unless:
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that
holder has previously given to the trustee written notice of a continuing
event of default with respect to debt securities of that series;
and
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the
holders of at least a majority in aggregate principal amount of the
outstanding debt securities of that series then outstanding have made
written request, and offered reasonable indemnity, to the trustee to
institute the proceeding as trustee, and the trustee has failed to
institute the proceeding within 60 days and has not received from the
holders of a majority in aggregate principal amount of the outstanding
debt securities of that series a direction inconsistent with that request
during such 60 day period.
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Notwithstanding
the foregoing, the holder of any debt security will have an absolute and
unconditional right to receive payment of the principal of, and any premium and
interest on, that debt security on or after the due dates expressed in that debt
security and to institute suit for the enforcement of payment.
If any securities are outstanding under
the indenture, the indenture requires us, within 120 days after the end of our
fiscal year, to furnish to the trustee a statement as to compliance with the
indenture. The indenture provides that the trustee may withhold
notice to the holders of debt securities of any series of any default or event
of default (except in payment on any debt securities of that series) with
respect to debt securities of that series if it in good faith determines that
withholding notice is in the interest of the holders of those debt securities.
Modification
and Waiver
We may
modify and amend the indenture without the consent of or notice to the holders
to cure any ambiguity or to correct or supplement any provision contained in the
indenture, in any supplemental indenture, or in the debt securities of any
series that may be defective or inconsistent with any other provision contained
in the indenture or any supplemental indenture; to convey, transfer, assign,
mortgage or pledge any property to or with the trustee, or to make such other
provisions in regard to matters or questions arising under the indenture as
shall not adversely affect the legal rights of the holders under the indenture;
to establish the forms or terms of debt securities of any series which is not
yet issued; to add to the restrictive covenants for the benefit of the holders
of all or any series of debt securities (or if such covenants are for the
benefit of less than all series of debt securities, stating that such covenants
are expressly being included for the benefit of such series) or to surrender any
right or power herein conferred upon us; to change or eliminate any of the
provisions of the indenture with respect to any series of debt securities,
provided that any such change or elimination shall become effective only when
there is no debt security outstanding of any series created prior to the
execution of such supplemental indenture which is
entitled
to the benefit of such provision; to provide for the assumption of our
obligations to the holders of debt securities in the case of a merger or
consolidation or sale of all or substantially all of our assets; to make any
change that would provide any additional rights or benefits to the holders of
debt securities or that does not adversely affect the legal rights under the
indenture of any such holder; to modify or amend the indenture in such manner,
including pursuant to requirements of the SEC, in order to effect or maintain
the qualification of the indenture under the Trust Indenture Act; to add
guarantees with respect to the debt securities of any series or to secure the
debt securities of any series; to secure the debt securities pursuant to the
requirements of any indenture supplement; to supplement any of the provisions of
this indenture to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of debt securities under the terms of the
indenture; to evidence and provide for the acceptance of appointment by a
successor or separate trustee with respect to the debt securities of any series
and to add to or change any of the provisions of the indenture as shall be
necessary to provide for or facilitate the administration of the indenture by
more than one trustee; or to provide for uncertificated debt
securities.
Except as
described below, we and the trustee may, with respect to any series of debt
securities, amend or supplement the indenture or the debt securities of such
series with the consent of at least a majority in aggregate principal amount of
the outstanding debt securities of each series affected by the modifications or
amendments. The holders of a majority in aggregate principal amount of the
outstanding debt securities of any series may on behalf of the holders of all
the debt securities of such series waive any past default under the indenture
with respect to that series and its consequences, except a default in the
payment of the principal of, or any premium or interest on, any debt security of
that series or in respect of a covenant or provision, which cannot be modified
or amended without the consent of the holder of each outstanding debt security
of the series affected; provided, however, that the holders of a majority in
principal amount of the outstanding debt securities of any series may rescind an
acceleration and its consequences, including any related payment default that
resulted from the acceleration.
We may
not make any modification or amendment without the consent of the holders of
each affected debt security then outstanding if that amendment
will:
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reduce
the amount of debt securities whose holders must consent to an amendment
or waiver;
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reduce
the rate of or extend the time for payment of interest (including default
interest) on any debt security;
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reduce
the principal of or change the fixed maturity of any debt security or
alter the provisions, or waive any payment with respect to the redemption
of any debt security of that
series;
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waive
a default or event of default in the payment of the principal of, or
premium or interest on, any debt security (except a rescission of
acceleration of the debt securities of any series by the holders of at
least a majority in aggregate principal amount of the then outstanding
debt securities of that series and a waiver of the payment default that
resulted from such acceleration);
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make
the principal of, or premium or interest on, any debt security payable in
currency other than U.S. dollars;
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make
any change to certain provisions of the indenture relating to waivers of
past defaults or the rights of holders of debt securities of a series to
receive payments of principal of, and premium and interest on, those debt
securities and to institute suit for the enforcement of any such payment
and to waivers or amendments;
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release any guarantor from any of
its obligations under its guarantee or the indenture, except in accordance
with the terms of the
indenture;
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impair the right to institute
suit for the enforcement of any payment on or with respect to the
securities or the guarantees;
or
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make any change in the preceding
amendment and waiver
provisions.
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Defeasance
of Debt Securities and Certain Covenants in Certain Circumstances
Legal
Defeasance. The indenture provides that, unless otherwise
provided by the terms of the applicable series of debt securities, we may be
discharged from any and all obligations in respect of the debt securities of any
series (except for certain obligations to register the transfer or exchange of
debt securities of such series, to replace stolen, lost or mutilated debt
securities of such series, and to maintain paying agencies and certain
provisions relating to the treatment of funds held by paying
agents). We will be so discharged upon the irrevocable deposit with
the trustee, in trust for the benefit of the holders of the series of
securities, of cash in U.S. dollars, non-callable government securities, or a
combination of cash in U.S. dollars and non-callable government securities, in
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants to the principal of, premium and interest on the
debt securities of that series on the stated maturity or on the applicable
redemption date in accordance with the terms of the indenture and those debt
securities.
This
discharge may occur only if, among other things, we have delivered to the
trustee an opinion of counsel stating that we have received from, or there has
been published by, the United States Internal Revenue Service a ruling or, since
the date of execution of the indenture, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the holders of the debt
securities of that series will not recognize income, gain or loss for United
States federal income tax purposes as a result of the deposit, defeasance and
discharge and will be subject to United States federal income tax on the same
amounts and in the same manner and at the same times as would have been the case
if the deposit, defeasance and discharge had not occurred.
Covenant Defeasance. The
indenture provides that, unless otherwise provided by the terms of the
applicable series of debt securities, upon compliance with certain conditions we
shall be released from our obligations under any covenants that are made
applicable to such series of debt securities through a supplemental indenture
pursuant to the terms of the indenture, on and after the date the conditions set
forth in the indenture are satisfied and the debt securities of that series
shall thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
“outstanding” for all other purposes under the indenture (it being understood
that such debt securities shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding series of debt securities, we may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere in the indenture to any such covenant or by reason of any
reference in any such covenant to any other provision in the indenture or in any
other document and such omission to comply shall not constitute a default or an
event of default.
The
conditions include:
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the
irrevocable deposit with the trustee, in trust for the benefit of the
holders of the series of securities, of cash in U.S. dollars, non-callable
government securities, or a combination of cash in U.S. dollars and
non-callable government securities, in amounts as will be sufficient, in
the
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opinion
of a nationally recognized firm of independent public accountants, to the
principal of, premium and interest on the debt securities of that series on the
stated maturity or on the applicable redemption date in accordance with the
terms of the indenture and those debt securities; and
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delivery
to the trustee of an opinion of counsel stating that we have received
from, or there has been published by, the United States Internal Revenue
Service a ruling or, since the date of execution of the indenture, there
has been a change in the applicable United States federal income tax law,
in either case to the effect that, and based thereon such opinion shall
confirm that, the holders of the debt securities of that series will not
recognize income, gain or loss for United States federal income tax
purposes as a result of the deposit, defeasance and discharge and will be
subject to United States federal income tax on the same amounts and in the
same manner and at the same times as would have been the case if the
deposit, defeasance and discharge had not
occurred.
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Subordination
Unless
indicated differently in a prospectus supplement, our subordinated debt
securities will be subordinated in right of payment to the prior payment in full
of all our senior debt. This means that upon:
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any
distribution of our assets upon our dissolution, winding-up, liquidation
or reorganization in bankruptcy, insolvency, receivership or other
proceedings, or
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the
acceleration of the maturity of the subordinated debt securities,
or
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a
failure to pay any senior debt or interest thereon when due and the
continuance of that default beyond any applicable grace period,
or
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the
acceleration of the maturity of any senior debt as a result of a
default,
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the
holders of all of our senior debt will be entitled to receive:
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in
the case of the first two bullet points above, payment of all amounts due
or to become due on all senior debt,
and
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in
the case of the second two bullet points above, payment of all amounts due
on all senior debt,
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before
the holders of any of the subordinated debt securities are entitled to receive
any payment. So long as any of the events in the bullet points above
has occurred and is continuing, any amounts payable on the subordinated debt
securities will instead be paid directly to the holders of all senior debt to
the extent necessary to pay the senior debt in full and, if any payment is
received by the subordinated indenture trustee under the subordinated indenture
or the holders of any of the subordinated debt securities before all senior debt
is paid in full, the payment or distribution must be paid over to the holders of
the unpaid senior debt. Subject to paying the senior debt in full,
the holders of the subordinated debt securities will be subrogated to the rights
of the holders of the senior debt to the extent that payments are made to the
holders of senior debt out of the distributive share of the subordinated debt
securities.
The term
“senior debt” means with respect to the subordinated debt securities, the
principal of, premium, if any, and interest, if any, on and any other payment in
respect of indebtedness due pursuant to any of the following, whether
outstanding on the date the subordinated debt securities are issued or
thereafter incurred, created or assumed:
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all
of our indebtedness evidenced by notes, debentures, bonds or other
securities sold by us for money or other obligations for money
borrowed;
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all
indebtedness of others of the kinds described in the preceding bullet
point assumed by or guaranteed in any manner by us or in effect guaranteed
by us through an agreement to purchase, contingent or otherwise, as
applicable; and
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all
renewals, extensions or refundings of indebtedness of the kinds described
in either of the first two bullet points
above,
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unless,
in the case of any particular indebtedness, renewal, extension or refunding, the
instrument creating or evidencing the same or the assumption or guarantee of the
same by its terms provides that such indebtedness, renewal, extension or
refunding is not superior in right of payment to or is pari passu with such
securities.
Due to
the subordination, if our assets are distributed upon insolvency, certain of our
general creditors may recover more, ratably, than holders of subordinated debt
securities. The subordination provisions will not apply to money and
securities held in trust under the satisfaction and discharge and the defeasance
provisions of the applicable subordinated indenture.
The subordinated debt securities and
the subordinated indenture do not limit our ability to incur additional
indebtedness, including indebtedness that will rank senior to the subordinated
debt securities. We may incur substantial additional amounts of
indebtedness in the future.
Governing
Law
Unless
otherwise described in any prospectus supplement, the indenture and the debt
securities will be governed by, and construed in accordance with, the internal
laws of the State of New York.
This
section describes the general terms of the depositary shares we may offer and
sell by this prospectus. This prospectus and any accompanying
prospectus supplement will contain the material terms and conditions for the
depositary shares. The accompanying prospectus supplement may add,
update, or change the terms and conditions of the depositary shares as described
in this prospectus.
General
We may,
at our option, elect to offer depositary shares, each representing a fraction
(to be set forth in the prospectus supplement relating to a particular series of
preferred stock) of a share of a particular class or series of preferred stock
as described below. In the event we elect to do so, depositary
receipts evidencing depositary shares will be issued to the public.
The
shares of any class or series of preferred stock represented by depositary
shares will be deposited under a deposit agreement among us, a depositary
selected by us, and the holders of the depositary receipts. The
depositary will be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least $50,000,000.
Subject to the terms of the deposit agreement, each owner of a depositary share
will be entitled, in proportion to the applicable fraction of a share of
preferred stock represented by such depositary share, to all of the rights and
preferences of the shares of preferred stock represented by the depositary
share, including dividend, voting, redemption and liquidation
rights.
The
depositary shares will be evidenced by depositary receipts issued pursuant to
the deposit agreement. Depositary receipts will be distributed to
those persons purchasing the fractional shares of the related class or series of
preferred shares in accordance with the terms of the offering described in the
related prospectus supplement.
Pending
the preparation of definitive depositary receipts, the depositary may, upon our
written order, issue temporary depositary receipts substantially identical to,
and entitling the holders thereof to all the rights pertaining to, the
definitive depositary receipts but not in definitive form. Definitive depositary
receipts will be prepared without unreasonable delay, and temporary depositary
receipts will be exchangeable for definitive depositary receipts without charge
to the holder.
Dividends
and Other Distributions
The
depositary will distribute all cash dividends or other cash distributions
received for the preferred stock to the entitled record holders of depositary
shares in proportion to the number of depositary shares that the holder owns on
the relevant record date; provided, however, that if we or the depositary is
required by law to withhold an amount on account of taxes, then the amount
distributed to the holders of depositary shares shall be reduced
accordingly. The depositary will distribute only an amount that can
be distributed without attributing to any holder of depositary shares a fraction
of one cent. The depositary will add the undistributed balance to and
treat it as part of the next sum received by the depositary for distribution to
holders of the depositary shares.
If there is a non-cash distribution,
the depositary will distribute property received by it to the entitled record
holders of depositary shares, in proportion, insofar as possible, to the number
of depositary shares owned by the holders, unless the depositary determines,
after consultation with us, that it is not feasible to make such
distribution. If this occurs, the depositary may, with our approval,
sell such property and distribute the net proceeds from such sale to the
holders. The deposit agreement also will contain provisions relating
to how any subscription or similar rights that we may offer to holders of the
preferred stock will be available to the holders of the depositary
shares.
Withdrawal
of Shares
Upon
surrender of the depositary receipts at the corporate trust office of the
depositary, unless the related depositary shares have previously been called for
redemption, converted or exchanged into our other securities, the holder of the
depositary shares evidenced thereby is entitled to delivery of the number of
whole shares of the related class or series of preferred stock and any money or
other property represented by such depositary shares. Holders of
depositary receipts will be entitled to receive whole shares of the related
class or series of preferred stock on the basis set forth in the prospectus
supplement for such class or series of preferred stock, but holders of such
whole shares of preferred stock will not thereafter be entitled to exchange them
for depositary shares. If the depositary receipts delivered by the
holder evidence a number of depositary shares in excess of the number of
depositary shares representing the number of whole shares of preferred stock to
be withdrawn, the depositary will deliver to such holder at the same time a new
depositary receipt evidencing such excess number of depositary
shares. In no event will fractional shares of preferred stock be
delivered upon surrender of depositary receipts to the depositary.
Conversion,
Exchange and Redemption
If any
class or series of preferred stock underlying the depositary shares may be
converted or exchanged, each record holder of depositary receipts representing
the shares of preferred stock being converted or
exchanged
will have the right or obligation to convert or exchange the depositary shares
represented by the depositary receipts.
Whenever
we redeem or convert shares of preferred stock held by the depositary, the
depositary will redeem or convert, at the same time, the number of depositary
shares representing the preferred stock to be redeemed or
converted. The depositary will redeem the depositary shares from the
proceeds it receives from the corresponding redemption of the applicable series
of preferred stock. The depositary will mail notice of redemption or
conversion to the record holders of the depositary shares that are to be
redeemed between 30 and 60 days before the date fixed for redemption or
conversion. The redemption price per depositary share will be equal
to the applicable fraction of the redemption price per share on the applicable
class or series of preferred stock. If less than all the depositary
shares are to be redeemed, the depositary will select which shares are to be
redeemed by lot on a pro rata basis or by any other equitable method as the
depositary may decide.
After the
redemption or conversion date, the depositary shares called for redemption or
conversion will no longer be outstanding. When the depositary shares
are no longer outstanding, all rights of the holders will end, except the right
to receive money, securities or other property payable upon redemption or
conversion of the depositary shares.
Voting
the Preferred Stock
When the
depositary receives notice of a meeting at which the holders of the particular
class or series of preferred stock are entitled to vote, the depositary will
mail the particulars of the meeting to the record holders of the depositary
shares. Each record holder of depositary shares on the record date
may instruct the depositary on how to vote the shares of preferred stock
underlying the holder's depositary shares. The depositary will try,
if practical, to vote the number of shares of preferred stock underlying the
depositary shares according to the instructions. We will agree to
take all reasonable action requested by the depositary to enable it to vote as
instructed.
Amendment
and Termination of the Deposit Agreement
We and
the depositary may agree at any time to amend the deposit agreement and the
depositary receipt evidencing the depositary shares. Any amendment
that (a) imposes or increases certain fees, taxes or other charges payable by
the holders of the depositary shares as described in the deposit agreement or
(b) otherwise materially adversely affects any substantial existing rights of
holders of depositary shares, will not take effect until such amendment is
approved by the holders of at least a majority of the depositary shares then
outstanding. Any holder of depositary shares that continues to hold
its shares after such amendment has become effective will be deemed to have
agreed to the amendment.
We may
direct the depositary to terminate the deposit agreement by mailing a notice of
termination to holders of depositary shares at least 30 days before
termination. The depositary may terminate the deposit agreement if 90
days have elapsed after the depositary delivered written notice of its election
to resign and a successor depositary is not appointed. In addition,
the deposit agreement will automatically terminate if:
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the
depositary has redeemed all related outstanding depositary
shares;
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all
outstanding shares of preferred stock have been converted into or
exchanged for common stock; or
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we have liquidated, terminated or
wound up our business and the depositary has distributed the preferred
stock of the relevant series to the holders of the related depositary
shares.
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Reports
and Obligations
The
depositary will forward to the holders of depositary shares all reports and
communications from us that are delivered to the depositary and that we are
required by law, the rules of an applicable securities exchange or our amended
and restated articles of incorporation to furnish to the holders of the
preferred stock. Neither we nor the depositary will be liable if the
depositary is prevented or delayed by law or any circumstances beyond its
control in performing its obligations under the deposit
agreement. The deposit agreement limits our obligations to
performance in good faith of the duties stated in the deposit
agreement. The depositary assumes no obligation and will not be
subject to liability under the deposit agreement except to perform such
obligations as are set forth in the deposit agreement without negligence or bad
faith. Neither we nor the depositary will be obligated to prosecute
or defend any legal proceeding connected with any depositary shares or class or
series of preferred stock unless the holders of depositary shares requesting us
to do so furnish us with a satisfactory indemnity. In performing our
obligations, we and the depositary may rely and act upon the advice of our
counsel or accountants, on any information provided to us by a person presenting
shares for deposit, any holder of a receipt, or any other document believed by
us or the depositary to be genuine and to have been signed or presented by the
proper party or parties.
Payment
of Fees and Expenses
We will
pay all fees, charges and expenses of the depositary, including the initial
deposit of the preferred stock and any redemption of the preferred
stock. Holders of depositary shares will pay taxes and governmental
charges and any other charges as are stated in the deposit agreement for their
accounts.
Resignation
and Removal of Depositary
At any
time, the depositary may resign by delivering notice to us, and we may remove
the depositary at any time. Resignations or removals will take effect
upon the appointment of a successor depositary and its acceptance of the
appointment. The successor depositary must be appointed within 90
days after the delivery of the notice of resignation or removal and must be a
bank or trust company having its principal office in the United States and
having a combined capital and surplus of at least $50,000,000.
This
section describes the general terms of the warrants that we may offer and sell
by this prospectus. This prospectus and any accompanying prospectus
supplement will contain the material terms and conditions for each
warrant. The accompanying prospectus supplement may add, update or
change the terms and conditions of the warrants as described in this
prospectus.
General
We may
issue warrants to purchase debt securities or equity securities, including
Common Stock, Class A Common Stock or preferred stock. Warrants may
be issued independently or together with any securities and may be attached to
or separate from those securities. The warrants will be issued under
warrant agreements to be entered into between us and a bank or trust company, as
warrant agent, all of which will be described in the prospectus supplement
relating to the warrants we are offering. The warrant agent will act
solely as our agent in connection with the warrants and will not have any
obligation or
relationship
of agency or trust for or with any holders or beneficial owners of
warrants. A copy of the warrant agreement will be filed with the SEC
in connection with the offering of the warrants.
Debt
Warrants
We may
issue warrants for the purchase of our debt securities. As explained
below, each debt warrant will entitle its holder to purchase debt securities at
an exercise price set forth in, or to be determinable as set forth in, the
related prospectus supplement. Debt warrants may be issued separately
or together with debt securities.
The debt
warrants are to be issued under debt warrant agreements to be entered into
between us, and one or more banks or trust companies, as debt warrant agent, as
will be set forth in the prospectus supplement relating to the debt warrants
being offered by the prospectus supplement and this prospectus. A
copy of the debt warrant agreement, including a form of the debt warrant
certificate representing the debt warrants, will be filed with the SEC in
connection with the offering of the debt warrants.
The
particular terms of each issue of debt warrants, the debt warrant agreement
relating to the debt warrants and the debt warrant certificates representing
debt warrants will be described in the applicable prospectus supplement,
including, as applicable:
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the
title of the debt warrants;
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the
initial offering price;
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the
title, aggregate principal amount and terms of the debt securities
purchasable upon exercise of the debt
warrants;
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the
currency or currency units in which the offering price, if any, and the
exercise price are payable;
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the
title and terms of any related debt securities with which the debt
warrants are issued and the number of the debt warrants issued with each
debt security;
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the
date, if any, on and after which the debt warrants and the related debt
securities will be separately
transferable;
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the
principal amount of debt securities purchasable upon exercise of each debt
warrant and the price at which that principal amount of debt securities
may be purchased upon exercise of each debt
warrant;
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if
applicable, the minimum or maximum number of warrants that may be
exercised at any one time;
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the
date on which the right to exercise the debt warrants will commence and
the date on which the right will
expire;
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if
applicable, a discussion of United States federal income tax, accounting
or other considerations applicable to the debt
warrants;
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whether
the debt warrants represented by the debt warrant certificates will be
issued in registered or bearer form, and, if registered, where they may be
transferred and registered;
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anti-dilution
provisions of the debt warrants, if
any;
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redemption
or call provisions, if any, applicable to the debt warrants;
and
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any
additional terms of the debt warrants, including terms, procedures and
limitations relating to the exchange and exercise of the debt
warrants.
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Debt warrant certificates will be
exchangeable for new debt warrant certificates of different denominations and,
if in registered form, may be presented for registration of transfer, and debt
warrants may be exercised at the corporate trust office of the debt warrant
agent or any other office indicated in the related prospectus
supplement. Before the exercise of debt warrants, holders of debt
warrants will not be entitled to payments of principal of, premium, if any, or
interest, if any, on the debt securities purchasable upon exercise of the debt
warrants, or to enforce any of the covenants in the indenture.
Equity
Warrants
We may
issue warrants for the purchase of our equity securities, such as our Common
Stock, Class A Common Stock or preferred stock. As explained below,
each equity warrant will entitle its holder to purchase equity securities at an
exercise price set forth in, or to be determinable as set forth in, the related
prospectus supplement. Equity warrants may be issued separately or
together with equity securities.
The
equity warrants are to be issued under equity warrant agreements to be entered
into between us and one or more banks or trust companies, as equity warrant
agent, as will be set forth in the prospectus supplement relating to the equity
warrants being offered by the prospectus supplement and this prospectus. A copy
of the equity warrant agreement, including a form of the equity warrant
certificate representing the equity warranty, will be filed with the SEC in
connection with the offering of the equity warrants.
The
particular terms of each issue of equity warrants, the equity warrant agreement
relating to the equity warrants and the equity warrant certificates representing
equity warrants will be described in the applicable prospectus supplement,
including, as applicable:
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the
title of the equity warrants;
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the
initial offering price;
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the
aggregate number of equity warrants and the aggregate number of shares of
the equity security purchasable upon exercise of the equity
warrants;
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the
currency or currency units in which the offering price, if any, and the
exercise price are payable;
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if
applicable, the designation and terms of the equity securities with which
the equity warrants are issued, and the number of equity warrants issued
with each equity security;
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the
date, if any, on and after which the equity warrants and the related
equity security will be separately
transferable;
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if
applicable, the minimum or maximum number of the equity warrants that may
be exercised at any one time;
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the
date on which the right to exercise the equity warrants will commence and
the date on which the right will
expire;
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if
applicable, a discussion of United States federal income tax, accounting
or other considerations applicable to the equity
warrants;
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anti-dilution
provisions of the equity warrants, if
any;
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redemption
or call provisions, if any, applicable to the equity warrants;
and
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any
additional terms of the equity warrants, including terms, procedures and
limitations relating to the exchange and exercise of the equity
warrants.
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Holders
of equity warrants will not be entitled, solely by virtue of being holders, to
vote, to consent, to receive dividends, to receive notice as shareholders with
respect to any meeting of shareholders for the election of directors or any
other matter, or to exercise any rights whatsoever as a holder of the equity
securities purchasable upon exercise of equity warrants.
We may
issue units comprised of one or more debt securities, common stock, shares of
preferred stock and warrants in any combination. Each unit will be
issued so that the holder of the unit is also the holder of each security
included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit
agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any
time before a specified date.
The
prospectus supplement may describe:
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the
designation and terms of the units and of the securities comprising the
units, including whether and under what circumstances those securities may
be held or transferred separately;
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any
provisions of the governing unit agreement that differ from those
described below; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of
the units or of the securities comprising the
units.
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We may
issue units in such amounts and in as many distinct series as we
wish. This section summarizes terms of the units that apply generally
to all series.
Unit
Agreements
We will
issue the units under one or more unit agreements to be entered into between us
and a bank or other financial institution, as unit agent. We may add,
replace or terminate unit agents from time to time. We will identify
the unit agreement under which each series of units will be issued and the unit
agent under that agreement in the prospectus supplement.
The following provisions will generally
apply to all unit agreements unless otherwise stated in the prospectus
supplement.
Enforcement
of Rights
The unit
agent under a unit agreement will act solely as our agent in connection with the
units issued under that agreement. The unit agent will not assume any
obligation or relationship of agency or trust for or with any holders of those
units or of the securities comprising those units. The unit agent
will not be obligated to take any action on behalf of those holders to enforce
or protect their rights under the units or the included securities.
Except as
indicated in the next paragraph, a holder of a unit may, without the consent of
the unit agent or any other holder, enforce its rights as holder under any
security included in the unit, in accordance with the terms of that security and
the indenture, warrant agreement or other instrument under which that security
is issued.
Notwithstanding
the foregoing, a unit agreement may limit or otherwise affect the ability of a
holder of units issued under that agreement to enforce its rights, including any
right to bring a legal action, with respect to those units or any securities,
other than debt securities that are included in those
units. Limitations of this kind will be described in the prospectus
supplement.
Modification
Without Consent of Holders
Unless
provided otherwise in an applicable prospectus supplement, we and the applicable
unit agent may amend any unit or unit agreement without the consent of any
holder:
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to
correct or supplement any defective or inconsistent provision;
or,
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to
make any other change that we believe is necessary or desirable and will
not adversely affect the interests of the affected holders in any material
respect.
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We do not
need any approval to make changes that affect only units to be issued after the
changes take effect. We may also make changes that do not adversely
affect a particular unit in any material respect, even if they adversely affect
other units in a material respect. In those cases, we do one need to
obtain the approval of the holder of the unaffected unit; we need only obtain
any required approvals from the holders of the affected units.
Modification
With Consent of Holders
Unless
provided otherwise in an applicable prospectus supplement, we may not amend any
particular unit or a unit agreement with respect to any particular unit unless
we obtain the consent of the holder of that unit, if the amendment
would:
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impair
any right of the holder to exercise or enforce any right under a security
included in the unit if the terms of that security require the consent of
the holder to any changes that would impair the exercise or enforcement of
that right, or
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reduce
the percentage of outstanding units or any series or class the consent of
whose holders is required to amend that series or class, or the applicable
unit agreement with respect to that series or class, as described
below.
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Unless
provided otherwise in an applicable prospectus supplement, any other change to a
particular unit agreement and the units issued under that agreement would
require the following approval:
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If
the change affects only the units of a particular series issued under that
agreement, the change must be approved by the holders of a majority of the
outstanding units of that series,
or
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If
the change affects the units of more than one series issued under that
agreement, it must be approved by the holders of a majority of all
outstanding units of all series affected by the change, with the units of
all the affected series voting together as one class for this
purpose.
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These
provisions regarding changes with majority approval also apply to changes
affecting any securities issued under a unit agreement, as the governing
document.
In each case, the required approval
must be given by written consent.
Unit
Agreements Will Not Be Qualified Under The Trust Indenture Act
No unit
agreement will be qualified as an indenture, and no unit agent will be required
to qualify as a trustee, under the Trust Indenture Act. Therefore, holders of
units issued under unit agreements will not have the protections of the Trust
Indenture Act with respect to their units.
Title
We and
the unit agents and any of our respective agents may treat the registered holder
of any unit certificate as an absolute owner of the units evidenced by that
certificate for any purpose and as the person entitled to exercise the rights
attaching to the units so requested, despite any notice to the
contrary.
We and
the selling shareholders may sell the securities described in this prospectus
from time to time in one or more transactions:
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to
purchasers directly;
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to
underwriters for public offering and sale by
them;
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through
a combination of any of the foregoing methods of
sale.
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We and
the selling shareholders may distribute the securities from time to time in one
or more transactions at:
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a
fixed price or prices, which may be
changed;
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market
prices prevailing at the time of
sale;
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prices
related to such prevailing market prices;
or
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Direct
Sales
We and
the selling shareholders may sell the securities directly to institutional
investors or others. A prospectus supplement will describe the terms
of any sale of securities we are offering hereunder.
To
Underwriters
The
applicable prospectus supplement will name any underwriter involved in a sale of
securities. Underwriters may offer and sell securities at a fixed
price or prices, which may be changed, or from time to time at market prices or
at negotiated prices. Underwriters may be deemed to have received
compensation from us from sales of securities in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of
securities for whom they may act as agent.
Underwriters
may sell securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions (which may be changed from time to time) from
the purchasers for whom they may act as agent.
Unless otherwise provided in a
prospectus supplement, the obligations of any underwriters to purchase
securities or any series of securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all such
securities if any are purchased.
Through
Agents and Dealers
We and
the selling shareholders will name any agent involved in a sale of securities,
as well as any commissions payable by us to such agent, in a prospectus
supplement. Unless we indicate differently in the prospectus
supplement, any such agent will be acting on a reasonable efforts basis for the
period of its appointment.
If a dealer is utilized in the sale of
the securities being offered pursuant to this prospectus, the securities will be
sold to the dealer, as principal. The dealer may then resell the
securities to the public at varying prices to be determined by the dealer at the
time of resale.
Delayed
Delivery Contracts
If we so
specify in the applicable prospectus supplement, underwriters, dealers and
agents will be authorized to solicit offers by certain institutions to purchase
securities pursuant to contracts providing for payment and delivery on future
dates. Such contracts will be subject to only those conditions set
forth in the applicable prospectus supplement.
The underwriters, dealers and agents
will not be responsible for the validity or performance of the
contracts. We will set forth in the prospectus supplement relating to
the contracts the price to be paid for the securities, the commissions payable
for solicitation of the contracts and the date in the future for delivery of the
securities.
Underwriters,
dealers and agents participating in a sale of the securities may be deemed to be
underwriters as defined in the Securities Act, and any discounts and commissions
received by them and any profit realized by them on resale of the securities may
be deemed to be underwriting discounts and
commissions,
under the Securities Act. We and the selling shareholders may have
agreements with underwriters, dealers and agents to indemnify them against
certain civil liabilities, including liabilities under the Securities Act, and
to reimburse them for certain expenses.
Underwriters
or agents and their associates may be customers of, engage in transactions with
or perform services for us or our affiliates in the ordinary course of
business.
Unless we
indicate differently in a prospectus supplement, we will not list the securities
on any securities exchange, other than shares of our Common Stock and Class A
Common Stock. The securities, except for our Common Stock and Class A
Common Stock, will be a new issue of securities with no established trading
market. Any underwriters that purchase securities for public offering
and sale may make a market in such securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. We make no assurance as to the liquidity of or the trading
markets for any securities.
The filing of the registration
statement in which this prospectus is included does not preclude us from issuing
securities in a transaction that is exempt from the registration provisions of
the securities laws.
Certain
legal matters relating to the offering will be passed upon for us and the
selling shareholders by Akerman Senterfitt, Miami, Florida.
The
consolidated financial statements, and the related consolidated financial
statement schedule, incorporated in this Prospectus by reference from HEICO
Corporation's Annual Report on Form 10-K, and the effectiveness of HEICO
Corporation's internal control over financial reporting have been audited by
Deloitte & Touche LLP, an independent registered public accounting firm, as
stated in their report, which is incorporated herein by
reference. Such financial statements and financial statement
schedule have been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
We file
annual, quarterly and special reports and other information with the SEC. You
may read and copy these reports and other information at the Public Reference
Room maintained by the SEC at 100 F Street, N.E. Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
Public Reference Room. In addition, you may read our SEC filings over the
Internet at the SEC’s website at www.sec.gov.
Our
website is www.heico.com. We make available free of charge through
our website our annual reports on Form 10-K, quarterly reports on Form 10-Q,
current reports on Form 8-K and amendments to those reports filed or furnished
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as
soon as reasonably practicable after we electronically file such material with,
or furnish it to, the SEC. The information contained on, connected to
or that can be accessed via our website is not part of this
prospectus.
We have
filed with the SEC a Registration Statement on Form S-3 under the Securities Act
to register with the SEC the securities described herein. This prospectus, which
is a part of the registration statement,
does not
contain all of the information set forth in the registration statement. For
further information about us and our securities, you should refer to the
registration statement.
The SEC
allows us to provide information about our business and other important
information to you by “incorporating by reference” the information we file with
the SEC, which means that we can disclose the information to you by referring in
this prospectus to the documents we file with the SEC. Under the SEC’s
regulations, any statement contained in a document incorporated by reference in
this prospectus is automatically updated and superseded by any information
contained in this prospectus, or in any subsequently filed document of the types
described below.
We
incorporate into this prospectus by reference the following documents filed by
us with the SEC, each of which should be considered an important part of this
prospectus:
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a)
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Our
Annual Report on Form 10-K for the year ended October 31, 2008, filed with
the SEC on December 24, 2008;
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b)
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Our
Quarterly Reports on Form 10-Q for the period ended January 31, 2009,
filed with the SEC on March 4, 2009, for the period ended April 30, 2009,
filed with the SEC on June 3, 2009 and for the period ended July 31, 2009,
filed with the SEC on September 1,
2009;
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c)
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Our
Current Reports on Form 8-K, filed with the SEC on December 16, 2008 and
March 31, 2009;
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d)
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The
description of our Common Stock contained in our Registration Statement on
Form 8-A, filed with the SEC on April 28, 1993, as amended January 27,
1999;
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e)
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The
description of our Class A Common Stock contained in our Registration
Statement on Form 8-A, filed with the SEC on April 8, 1998, as amended
January 27, 1999; and
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f)
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The
description of our (i) Rights to Purchase Series B Junior Participating
Preferred Stock and (ii) Rights to Purchase Series C Junior Participating
Preferred Stock contained in our Registration Statement on Form 8-A, filed
November 4, 2003.
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In
addition, all documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this registration statement and to be a part
hereof from the date of filing of such documents. Any statement in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
We will
provide to you, upon request, a copy of each of our filings at no cost. Please
make your request by writing or telephoning us at the following address or
telephone number:
HEICO
Corporation
3000 Taft
Street
Hollywood,
Florida 33021
Tel:
(954) 987-4000
You
should rely only on the information incorporated by reference or provided in
this prospectus or any supplement. We have not authorized anyone else to provide
you with different information. You should not assume that the information in
this prospectus or any supplement is accurate as of any date other than the date
on the front of those documents.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth all expenses in connection with the issuance and
distribution of the securities being registered. All amounts shown
are estimates, except for the SEC registration fee:
|
SEC
registration fee
|
$
*
|
|
Legal
fees and expenses
|
$
**
|
|
Accounting
fees and expenses
|
$
**
|
|
Printing,
engraving and mailing expenses
|
$
**
|
|
Miscellaneous
|
$
**
|
|
|
|
|
Total
|
$
**
|
|
*
|
The
Registrant is deferring payment of the registration fee in reliance of
Rule 456(b) and Rule 457(r) under the Securities
Act.
|
|
**
|
These
fees and expenses depend on the securities offered and the number of
issuances, and accordingly cannot be estimated at this
time.
|
Item
15. Indemnification of Directors and Officers.
We have
authority under Section 607.0850 of the Florida Business Corporation Act to
indemnify our directors and officers to the extent provided in such
statute. Our Articles of Incorporation provide that we may indemnify
our executive officers and directors to the fullest extent permitted by law
either now or hereafter. We have entered or will enter into an
agreement with each of our directors and some of our officers wherein we have
agreed or will agree to indemnify each of them to the fullest extent permitted
by law.
The provisions of the Florida Business
Corporation Act that authorize indemnification do not eliminate the duty of care
of a director, and in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under
Florida law. In addition, each director will continue to be subject
to liability for (a) violations of criminal laws, unless the director had
reasonable cause to believe his conduct was lawful or had no reasonable cause to
believe his conduct was unlawful; (b) deriving an improper personal benefit from
a transaction; (c) voting for or assenting to an unlawful distribution; and (d)
willful misconduct or a conscious disregard for our best interests in a
proceeding by or in our right to procure a judgment in our favor or in a
proceeding by or in the right of a
shareholder. The statute does not
affect a director's responsibilities under any other law, such as the federal
securities laws.
Item
16. Exhibits.
|
EXHIBIT
NO
|
|
DESCRIPTION
|
|
|
|
|
|
4.1
|
|
Form
of Indenture.
|
|
|
|
|
|
4.2
|
|
Form
of Note.*
|
|
|
|
|
|
4.3
|
|
Form
of Deposit Agreement and Depositary Receipt.*
|
|
|
|
|
|
4.4
|
|
Form
of Common Stock Warrant Agreement and Warrant
Certificate.*
|
|
|
|
|
|
4.5
|
|
Form
of Class A Common Stock Warrant Agreement and Warrant
Certificate.*
|
|
|
|
|
|
4.6
|
|
Form
of Preferred Stock Warrant Agreement and Warrant
Certificate.*
|
|
|
|
|
|
4.7
|
|
Form
of Debt Securities Warrant Agreement and Warrant
Certificate.*
|
|
|
|
|
|
4.8
|
|
Form
of Unit.*
|
|
|
|
|
|
4.9
|
|
Form
of Unit Agreement.*
|
|
|
|
|
|
5.1
|
|
Opinion
of Akerman Senterfitt.
|
|
|
|
|
|
12.1
|
|
Statement
of Computation of Ratio of Earnings to Fixed Charges.
|
|
|
|
|
|
23.1
|
|
Consent
of Deloitte & Touche LLP.
|
|
|
|
|
|
23.2
|
|
Consent
of Akerman Senterfitt (included in Exhibit 5.1 hereto).
|
|
|
|
|
|
24.1
|
|
Power
of Attorney (included on signature page of this Registration
Statement).
|
|
|
|
|
|
25.1
|
|
Form
T-1 Statement of Eligibility of Trustee for Indenture under the Trust
Indenture Act of 1939.*
|
|
|
|
* To
be filed by post-effective amendment, as applicable, or as an exhibit to a
report filed under the Securities Exchange Act of 1934, as amended, and
incorporated herein by reference.
|
Item
17. Undertakings.
|
(a)
|
The
undersigned registrant hereby
undertakes:
|
|
|
(1)
|
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
|
|
|
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
|
|
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective registration
statement;
|
|
|
(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any
material change to such information in the registration
statement;
|
Paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the
registration statement is on Form S-3 or Form F-3 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
|
|
(i)
|
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date the
filed prospectus was deemed part of and included in the registration
statement; and
|
|
|
(ii)
|
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5),
or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by section 10(a) of the Securities
Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
|
that date
an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona
fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933, as amended, to any purchaser in the initial distribution of the
securities:
The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such
purchaser:
|
|
(i)
|
Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
|
|
|
(ii)
|
Any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
|
|
(iii)
|
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
|
|
|
(iv)
|
Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide
offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a
court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
(d) The
undersigned registrant hereby undertakes to file an application for the purposes
of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Hollywood, State of Florida, on September 16, 2009.
|
|
HEICO
CORPORATION
|
|
|
|
|
|
|
|
|
By:
|
/s/ Thomas S. Irwin
|
|
|
|
|
Thomas
S. Irwin
|
|
|
|
|
Executive
Vice President and
|
|
|
|
|
Chief
Financial Officer
|
|
|
|
|
(Principal
Financial and
|
|
|
|
|
Accounting
Officer)
|
|
KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas S. Irwin and Joseph W. Pallot, and
each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them,
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
/s/ Laurans A. Mendelson
|
|
Chairman,
President,
|
|
September
16, 2009
|
|
Laurans
A. Mendelson
|
|
Director
(Principal Executive Officer)
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
/s/ Samuel L. Higginbottom
|
|
Director
|
|
September
16, 2009
|
|
Samuel
L. Higginbottom
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
/s/ Mark H. Hildebrandt
|
|
Director
|
|
September
16, 2009
|
|
Mark
H. Hildebrandt
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
/s/ Wolfgang Mayrhuber
|
|
Director
|
|
September
16, 2009
|
|
Wolfgang
Mayrhuber
|
|
|
|
|
|
/s/ Eric A. Mendelson
|
|
Director
|
|
September
16, 2009
|
|
Eric
A. Mendelson
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
/s/ Victor H. Mendelson
|
|
Director
|
|
September
16, 2009
|
|
Victor
H. Mendelson
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
|
|
Albert
Morrison, Jr.
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
/s/ Alan Schriesheim
|
|
Director
|
|
September
16, 2009
|
|
Alan
Schriesheim
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
/s/ Frank J. Schwitter
|
|
Director
|
|
September
16, 2009
|
|
Frank
J. Schwitter
|
|
|
|
|
EXHIBIT
INDEX
|
Exhibit
No.
|
|
Description
|
|
|
|
|
|
4.1
|
|
Form
of Indenture.
|
|
|
|
|
|
5.1
|
|
Opinion
of Akerman Senterfitt.
|
|
|
|
|
|
12.1
|
|
Statement
of Computation of Ratio of Earnings to Fixed Charges.
|
|
|
|
|
|
23.1
|
|
Consent
of Deloitte & Touche LLP.
|
|
|
|
|
|
23.2
|
|
Consent
of Akerman Senterfitt (included in Exhibit 5.1 hereto).
|
|
|
|
|
|
24.1
|
|
Power
of Attorney (included on signature page of this Registration
Statement).
|