Heico Corp S-3ASR, filed Jul 18, 2023
Heico Corp (HEI)
As filed with the Securities and Exchange Commission on July 17, 2023
Registration No. 333-_____________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HEICO CORPORATION
SEE TABLE OF ADDITIONAL REGISTRANTS
(Exact name of registrant as specified in its charter)
Florida
(State or other jurisdiction of incorporation or organization)
65-0341002
(IRS Employer Identification Number)
3000 Taft Street
Hollywood, Florida 33021
(954) 987-4000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Carlos L. Macau, Jr.
Executive Vice President - Chief Financial Officer
HEICO Corporation
3000 Taft Street
Hollywood, Florida 33021
(954) 987-4000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With a copy to:
Jonathan Awner, Esq.
Christina C. Russo, Esq.
Akerman LLP
Three Brickell City Centre
98 Southeast Seventh Street, Suite 1100
Miami, Florida 33131
(305) 374-5600
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
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: ☒
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. ☐
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. ☐
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: ☒
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: ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
|
Large accelerated filer |
☒ | Accelerated filer | ☐ |
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ |
| Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
Table of Additional Registrants
| Exact Name of Co-Registrants | State of Incorporation | I.R.S. Employer Identification Number | ||
| 16-1741 PROPERTY, INC. | Florida | 45-4350389 | ||
| 26 WARD HILL PROPERTY, LLC | Florida | 86-3142182 | ||
| 3 MCCREA PROPERTY COMPANY, LLC | Florida | 83-2312708 | ||
| 34 FREEDOM COURT, CORP. | Florida | 92-1754605 | ||
| 3D PLUS U.S.A., INC. | Delaware | 74-2947071 | ||
| 60 SEQUIN LLC | Connecticut | 82-4758526 | ||
| 8929 FULLBRIGHT PROPERTY, LLC | California | 88-3653335 | ||
| ACCURATE METAL MACHINING, INC. | Ohio | 34-1193166 | ||
| ACTION RESEARCH CORPORATION | Florida | 46-1086859 | ||
| AEROANTENNA TECHNOLOGY, INC. | California | 95-4322670 | ||
| AERODESIGN, INC. | Tennessee | 62-1858631 | ||
| AEROELT, LLC | Florida | 82-4804644 | ||
| AEROSPACE & COMMERCIAL TECHNOLOGIES, LLC | Florida | 47-4759100 | ||
| AIRCRAFT TECHNOLOGY, INC. | Florida | 65-0233725 | ||
| ANALOG MODULES, INC. | Florida | 59-2074349 | ||
| APEX HOLDING CORP. | Delaware | 46-0732506 | ||
| APEX MICROTECHNOLOGY, INC. | Arizona | 46-0624696 | ||
| ASTRO PROPERTY, LLC | Connecticut | 47-4786567 | ||
| ASTROSEAL PRODUCTS MFG. CORPORATION | Connecticut | 06-0808406 | ||
| BAY EQUIPMENT CORP. | Delaware | 82-4356384 | ||
| BLUE AEROSPACE LLC | Florida | 27-4313205 | ||
| BREIDON, LLC | Maryland | 46-1563733 | ||
| CAMTRONICS, LLC | Florida | 86-3999996 | ||
| CARBON BY DESIGN CORPORATION | Florida | 82-1858021 | ||
| CARBON BY DESIGN LLC | California | 20-1043190 | ||
| CHARTER ENGINEERING, INC. | Florida | 59-3400419 | ||
| CONNECTRONICS CORP. | Florida | 20-1971140 | ||
| CONXALL CORPORATION | Illinois | 36-2944789 | ||
| CSI AEROSPACE, INC. | Florida | 45-5531151 | ||
| DB CONTROL CORP. | Florida | 27-1784894 | ||
| DECAVO LLC | Oregon | 26-4673544 | ||
| DIELECTRIC SCIENCES, INC. | Massachusetts | 04-2603559 | ||
| DUKANE SEACOM, INC. | Florida | 27-1050226 | ||
| ENGINEERING DESIGN TEAM, INC. | Oregon | 93-0964386 | ||
| FLIGHT MICROWAVE CORPORATION | California | 55-0883855 | ||
| FUTURE AVIATION, INC. | Florida | 65-1011336 | ||
| HARTER AEROSPACE, LLC | Florida | 47-2458702 | ||
| HEICO AEROSPACE CORPORATION | Florida | 59-0791770 | ||
| HEICO AEROSPACE HOLDINGS CORP. | Florida | 65-0831428 | ||
| HEICO AEROSPACE PARTS CORP. | Florida | 65-1146790 | ||
| HEICO EAST CORPORATION | Florida | 65-0271411 | ||
| HEICO ELECTRONIC TECHNOLOGIES CORP. | Florida | 65-0680321 | ||
| HEICO FLIGHT SUPPORT CORP. | Florida | 46-0627157 | ||
| HEICO PARTS GROUP, INC. | Florida | 26-3082967 | ||
| HEICO REPAIR GROUP AEROSTRUCTURES, LLC | Florida | 82-2700627 | ||
| HEICO REPAIR, LLC | Florida | 84-2205144 | ||
| HETC I, LLC | Florida | 83-1444190 | ||
| HETC II CORP. | Florida | 83-2596259 | ||
| HETC III, LLC | Florida | 83-3243681 | ||
| HETC IV, LLC | Florida | 84-4050584 | ||
| HETC V, LLC | Florida | 85-2422715 | ||
| HFSC III CORP. | Florida | 47-2451008 | ||
| HFSC IV CORP. | Florida | 81-5140246 | ||
| HFSC V, LLC | Florida | 83-2178482 | ||
| HFSC VI, LLC | Florida | 84-2575273 | ||
| HFSC VII, LLC | Florida | 85-1245696 | ||
| HFSC VIII, LLC | Florida | 86-3453082 | ||
| HFSC XI CORP. | Florida | 87-4380214 | ||
| HNW 2 BUILDING CORP. | Florida | 20-1971031 | ||
| HNW BUILDING CORP. | Florida | 65-0880442 | ||
| HVT GROUP, INC. | Delaware | 04-3502230 |
| INERTIAL AIRLINE SERVICES, INC. | Ohio | 34-1823836 | ||
| INTELLIGENT DEVICES, LLC | Delaware | 52-1943471 | ||
| IRCAMERAS LLC | Florida | 27-4686945 | ||
| IRONWOOD ELECTRONICS, INC. | MN | 47-4956282 | ||
| JET AVION CORPORATION | Florida | 59-2699611 | ||
| JETSEAL, INC. | Delaware | 91-1433851 | ||
| LEADER TECH, INC. | Florida | 04-2667972 | ||
| LPI INDUSTRIES CORPORATION | Florida | 65-0054782 | ||
| LUCIX CORPORATION | California | 77-0504129 | ||
| LUMINA POWER, INC. | Florida | 20-2350926 | ||
| MASTIFF DESIGN, INC. | Florida | 88-1101204 | ||
| MCCLAIN INTERNATIONAL, INC. | Georgia | 58-0876596 | ||
| MIDWEST MICROWAVE SOLUTIONS, INC. | Iowa | 27-0124198 | ||
| NIACC-AVITECH TECHNOLOGIES INC. | Florida | 51-0453669 | ||
| NORTHWINGS ACCESSORIES CORPORATION | Florida | 65-0312802 | ||
| OPTICAL DISPLAY ENGINEERING, INC. | Florida | 46-1634579 | ||
| OPTICAL DISPLAY ENGINEERING, LLC | Florida | 38-4203543 | ||
| PACIWAVE, INC. | California | 77-0413439 | ||
| PIONEER INDUSTRIES LLC | Delaware | 11-1746409 | ||
| PRIME AIR, LLC | Florida | 20-5545289 | ||
| PYRAMID SEMICONDUCTOR CORP | Florida | 86-2249124 | ||
| QUELL CORPORATION | Colorado | 46-0507356 | ||
| R.H. LABORATORIES, INC. | New Hampshire | 02-0527375 | ||
| RADIANT POWER CORP. | Florida | 65-0892651 | ||
| RADIANT POWER IDC, LLC | Florida | 82-3217339 | ||
| RADIANT-SEACOM REPAIRS CORP. | Florida | 46-4846094 | ||
| RAMONA RESEARCH, INC. | California | 45-4786673 | ||
| REINHOLD HOLDINGS, INC. | Delaware | 20-8005591 | ||
| REINHOLD INDUSTRIES, INC. | Delaware | 13-2596288 | ||
| RESEARCH ELECTRONICS INTERNATIONAL, L.L.C. | Tennessee | 62-1597816 | ||
| RIDGE ENGINEERING, LLC | Maryland | 02-0527375 | ||
| RIDGE HOLDCO, LLC | Florida | 52-0908121 | ||
| ROBERTSON FUEL SYSTEMS, LLC | Arizona | 87-1755561 | ||
| ROCKY MOUNTAIN HYDROSTATICS, LLC | Colorado | 86-0775241 | ||
| SANTA BARBARA INFRARED, INC. | California | 58-2428936 | ||
| SEAL DYNAMICS LLC | Florida | 77-0111325 | ||
| SEAL Q CORP. | Florida | 47-1064082 | ||
| SENSOR SYSTEMS, INC. | Nevada | 95-2127229 | ||
| SENSOR TECHNOLOGY ENGINEERING, LLC | Florida | 95-2127229 | ||
| SIERRA MICROWAVE TECHNOLOGY, LLC | Delaware | 82-4199356 | ||
| SOLID SEALING TECHNOLOGY, INC. | New York | 46-3801015 | ||
| SPECIALITY SILICONE PRODUCTS, INC. | New York | 20-0539521 | ||
| SUNSHINE AVIONICS LLC | Florida | 82-3091838 | ||
| SWITCHCRAFT HOLDCO, INC. | Delaware | 20-2476580 | ||
| SWITCHCRAFT, INC. | Illinois | 20-2476580 | ||
| THE BECHDON COMPANY, LLC | Maryland | 36-2051512 | ||
| THERMAL ENERGY PRODUCTS, INC. | California | 52-0895348 | ||
| THERMAL STRUCTURES, INC. | California | 98-1285293 | ||
| TRAD TESTS & RADIATIONS, INC. | Florida | 95-3575611 | ||
| TRANSFORMATIONAL SECURITY, LLC | Maryland | 20-1891706 | ||
| TSID HOLDINGS, LLC | Florida | 33-0689721 | ||
| TTT CUBED, INC. | California |
85-2433352 | ||
| TURBINE KINETICS, INC. | Florida | 27-5248226 |
The address for each Additional Registrant is 3000 Taft Street, Hollywood, Florida 33021.
PROSPECTUS
Common Stock
Class A Common Stock
Preferred Stock
Debt Securities
Guarantees of Debt Securities
Depositary Shares
Warrants
Units
HEICO Corporation may offer Common Stock, Class A Common Stock, preferred stock, debt securities, guarantees of debt securities, depositary shares, warrants and units (collectively, the “securities”) from time to time in amounts, at prices and on terms that will be determined at the time of any such offering. These securities also may be offered by shareholders, if so provided in a prospectus supplement hereto. We will provide specific information about any selling shareholders in one or more supplements to this prospectus. We will not receive any proceeds from sales of Common Stock or Class A Common Stock 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 or other offering materials 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 July 14, 2023, was $170.49 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 July 14, 2023 was $135.40 per share. 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 3, 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.
July 17, 2023
TABLE OF CONTENTS
i
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. These securities also may be offered by shareholders, if so, provided in a prospectus supplement hereto. We will provide specific information about any selling shareholders in one or more supplements to this prospectus. 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. Material federal income tax considerations applicable to the offered securities will also be discussed in the applicable prospectus supplement as necessary. 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” and “Incorporation of Certain Documents by Reference.”
This prospectus does not contain all of the information set forth in the registration statement, portions of which we have omitted as permitted by the rules and regulations of the SEC. Statements contained in this prospectus as to the contents of any contract or other document are not necessarily complete. You should refer to the copy of each contract or document filed as an exhibit to the registration statement for a complete description.
You should rely only on the information contained in or incorporated by reference into this prospectus or any applicable prospectus supplements filed with the SEC. We have not authorized anyone to provide you with different or additional information and, if you are given any information or representation about these matters that is not contained or incorporated by reference in this prospectus or a prospectus supplement, you must not rely on that information. The selling shareholders will offer to sell and seek offers to buy shares of our Common Stock and Class A Common Stock only in jurisdictions in which offers and sales are permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or any sale of Common Stock or Class A Common Stock.
Unless the context otherwise requires, all references in this prospectus to “HEICO,” the “Company,” “we,” “us,” and “our” refer to HEICO Corporation and our consolidated subsidiaries. Unless otherwise stated or indicated by context, the phrase “this prospectus” refers to the prospectus and any applicable prospectus supplement.
ii
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 (collectively, “HEICO,” “we,” “us,” “our” or the “Company”) 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, telecommunications and electronics industries. The Company was originally organized in 1957 as a holding company known as HEICO Corporation. As part of a reorganization completed in 1993, the original holding company (formerly known as HEICO Corporation) was renamed as HEICO Aerospace Corporation and a new holding corporation known as HEICO Corporation was created. The reorganization 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 (“FSG”), consisting of HEICO Aerospace Holdings Corp. and HEICO Flight Support Corp. and their collective subsidiaries, accounted for 57%, 50% and 52% of our net sales in fiscal 2022, 2021 and 2020, respectively, and 58% of net sales for the six months ended April 30, 2023. The FSG 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 FSG repairs, overhauls 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. The FSG also manufactures and sells specialty parts as a subcontractor for aerospace and industrial original equipment manufacturers and the United States (“U.S.”) government. Additionally, the FSG is a leading supplier, distributor, and integrator of military aircraft parts and support services primarily to the U.S. Department of Defense, defense prime contractors, and foreign military organizations allied with the U.S. Further, the FSG is a leading manufacturer of advanced niche components and complex composite assemblies for commercial aviation, defense and space applications. The FSG engineers, designs and manufactures thermal insulation blankets and parts as well as removable/reusable insulation systems for aerospace, defense, commercial and industrial applications; manufactures expanded foil mesh for lightning strike protection in fixed and rotary wing aircraft; distributes aviation electrical interconnect products and electromechanical parts; overhauls industrial pumps, motors, and other hydraulic units with a focus on the support of legacy systems for the U.S. Navy; and performs tight-tolerance machining, brazing, fabricating and welding services for aerospace, defense and other industrial applications.
The Electronic Technologies Group. Our Electronic Technologies Group (“ETG”), consisting of HEICO Electronic Technologies Corp. and its subsidiaries, accounted for 43%, 50% and 48% of our net sales in fiscal 2022, 2021 and 2020, respectively, and 42% of net sales for the six months ended April 30, 2023. The ETG derived approximately 56%, 63% and 66% of its net sales in fiscal 2022, 2021 and 2020, respectively, and 47% of net sales for the six months ended April 30, 2023, from the sale of products and services to U.S. and foreign military agencies, prime defense contractors and both commercial and defense satellite and spacecraft manufacturers. The ETG collectively designs, manufactures and sells various types of electronic, data and microwave, and electro-optical products, including infrared simulation and test equipment, laser rangefinder receivers, electrical power supplies, back-up power supplies, power conversion products, underwater locator beacons, emergency locator transmission beacons, flight deck annunciators, panels, and indicators, electromagnetic and radio frequency interference shielding and filters, high power capacitor charging power supplies, amplifiers, traveling wave tube amplifiers, photodetectors, amplifier modules, microwave power modules, flash lamp drivers, laser diode drivers, arc lamp power supplies, custom power supply designs, cable assemblies, high voltage power supplies, high voltage interconnection devices and wire, high voltage energy generators, high frequency power delivery systems; memory products, including three-dimensional microelectronic and stacked memory, static random-access memory (SRAM), and electronically erasable programmable read-only memory (EEPROM); harsh environment electronic connectors and other interconnect products, radio frequency (“RF”) and microwave amplifiers, transmitters, and receivers and integrated assemblies, sub-assemblies and components; RF sources, detectors and controllers, wireless cabin control systems, solid state power distribution and management systems, crashworthy and ballistically self-sealing auxiliary fuel systems, nuclear radiation detectors, communications and electronic intercept receivers and tuners, fuel level sensing systems, high-speed interface products that link devices, high performance active antenna systems and airborne antennas for commercial and military aircraft, precision guided munitions, other defense applications and commercial uses; silicone material for a variety of demanding applications; precision power analog monolithic, hybrid and open frame components; high-reliability ceramic-to-metal feedthroughs and connectors, technical surveillance countermeasures (TSCM) equipment to detect devices used for espionage and information theft; rugged small-form factor embedded computing solutions; custom high power filters and filter assemblies; test sockets and adapters for both engineering and production use of semiconductor devices; and radiation assurance services and products.
1
HEICO has continuously operated in the aerospace industry for over 65 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 $2,208.3 million in fiscal 2022, representing a compound annual growth rate of approximately 15%. During the same period, we improved our net income from $2.0 million to $351.7 million, representing a compound annual growth rate of approximately 18%.
Acquisitions have been an important element of our growth strategy over the past thirty-three years, supplementing our organic growth. Since 1990, we have completed approximately 97 acquisitions complementing the niche segments of the aviation, defense, space, medical, telecommunications and electronics industries in which we operate. We typically target acquisition opportunities that allow us to broaden our product offerings, services and technologies while expanding our customer base and geographic presence. Even though we have historically pursued an active acquisition policy, our disciplined acquisition strategy involves limiting acquisition candidates to businesses that we believe will continue to grow, offer strong cash flow and earnings potential, and are available at fair prices.
Corporate Information
HEICO’s corporate headquarters
is located at 3000 Taft Street, Hollywood, Florida 33021. Our telephone number is (954) 987-4000 and our Internet website address is www.heico.com.
The information on our website is not a part of, or incorporated in, this prospectus.
2
Investing in our securities involves certain risks. Our business is influenced by many factors that are difficult to predict, involve uncertainties that may materially affect actual results and are often beyond our control. We have identified, or will identify, a number of these factors under the heading “Risk Factors” in our most recent Annual Report on Form 10-K and subsequent Quarterly Reports on Form 10-Q, as well as in other information or reports included or incorporated by reference in this prospectus and any prospectus supplement. Before making a decision to invest in our securities, you should carefully consider these risks, as well as the other information included or incorporated by reference in this prospectus and any prospectus supplement. For additional information, see below under the heading “Where You Can Find Additional Information” and “Incorporation of Certain Documents by Reference.”
3
SUPPLEMENTAL GUARANTOR FINANCIAL INFORMATION
Guarantor Group Summarized Financial Information
In this section, the term “Company” refers solely to HEICO Corporation (and not to any of its affiliates, including subsidiaries). The debt securities that may be issued by the Company may be fully and unconditionally guaranteed, jointly and severally, on a secured or unsecured, subordinated or unsubordinated basis, subject to certain customary guarantor release conditions, by the Company's domestic subsidiaries that are guarantors under the Company's revolving credit facility (each a “Guarantor,” collectively, the “Guarantors” and, the Guarantors together with the Company, the “Guarantor Group”). The other subsidiaries of the Company (the “non-guarantor subsidiaries”) are not registering for possible issuance any guarantees of the Company’s debt securities by the non-guarantor subsidiaries. For a brief description of the general terms of the debt securities that we may offer and the guarantees that the Guarantor may offer, see the information under the heading “Description of Debt Securities and Guarantees” in this prospectus.
The Company conducts operations almost entirely through its subsidiaries. Accordingly, the Guarantor Group’s cash flow and ability to service any guaranteed registered debt securities will depend on the earnings of the Company’s subsidiaries and the distribution of those earnings to the Guarantor Group, including the earnings of the non-guarantor subsidiaries, whether by dividends, loans or otherwise. Holders of the guaranteed registered debt securities will have a direct claim only against the Guarantor Group.
The following tables include summarized financial information for the Guarantor Group. The information for the Guarantor Group is presented on a combined basis, excluding intercompany balances and transactions between the Company and the Guarantor and excluding investments in and equity in the earnings of non-guarantor subsidiaries. The Guarantor Group’s amounts due from, amounts due to, and transactions with non-guarantor subsidiaries have been presented in separate line items.
| As of October 31, 2022 |
As of April 30, 2023 |
|||||||
| (in thousands) | ||||||||
| Current assets (excluding net intercompany receivable from non-guarantor subsidiaries) | $ | 898,522 | $ | 975,286 | ||||
| Noncurrent assets | 2,612,503 | 2,642,878 | ||||||
| Net intercompany (payable to) / receivable from non-guarantor subsidiaries | (10,836 | ) | 171,783 | |||||
| Current liabilities (excluding net intercompany payable to non-guarantor subsidiaries) | 327,700 | 358,849 | ||||||
| Noncurrent liabilities | 662,948 | 1,104,574 | ||||||
| Redeemable noncontrolling interests | 254,348 | 252,673 | ||||||
| Noncontrolling interests | 33,993 | 32,969 | ||||||
| For the Fiscal Year Ended October 31, 2022 |
For the Six Months Ended April 30, 2023 |
|||||||
| (in thousands) | ||||||||
| Net sales | $ | 1,816,612 | $ | 1,036,524 | ||||
| Gross profit | 683,669 | 390,192 | ||||||
| Operating income | 398,168 | 232,401 | ||||||
| Net income attributable to HEICO | 286,361 | 162,680 | ||||||
| For the Fiscal Year Ended October 31, 2022 |
For the Six Months Ended April 30, 2023 |
|||||||
| (in thousands) | ||||||||
| Intercompany revenue | $ | 1,908 | $ | 1,184 | ||||
| Intercompany management fee | 2,383 | 1,205 | ||||||
| Intercompany interest income | 265 | 2,621 | ||||||
| Intercompany dividends | 57,541 | 31,263 | ||||||
4
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this prospectus contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). These statements, which in some cases, you can identify by terms such as “may,” “will,” “should,” “could,” “would,” “expects,” “plans,” “anticipates,” “believes,” “estimates,” “projects,” “predicts,” “potential” and similar expressions intended to identify forward-looking statements, relate to future events or to our future operating or financial performance and involve known and unknown risks, uncertainties and other factors which may cause our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements. These statements include statements regarding our operations, cash flows, and financial position. These statements reflect our current views with respect to future events and are based on assumptions and subject to risks and uncertainties.
Although we believe that these statements are based upon reasonable assumptions, these statements expressing opinions about future outcomes and non-historical information are subject to a number of risks and uncertainties, many of which are beyond our control, and reflect future business decisions that are subject to change and, therefore, there is no assurance that the outcomes expressed in these statements will be achieved. Some of the assumptions, future results and levels of performance expressed or implied in the forward-looking statements we have made or may make in the future inevitably will not materialize, and unanticipated events may occur which will affect our results. Investors are cautioned that forward-looking statements are not guarantees of future performance and actual results or developments may differ materially from the expectations expressed in forward-looking statements contained herein. Given these uncertainties, you should not place undue reliance on these forward-looking statements. We discuss many of these risks and uncertainties in greater detail under “Risk Factors” discussed under the caption “Item 1A. Risk Factors” in Part I of our most recent Annual Report on Form 10-K or any updates discussed under the caption “Item 1A. Risk Factors” in Part II of our Quarterly Reports on Form 10-Q, together with all of the other information appearing in or incorporated by reference into this prospectus. You should read this prospectus completely and with the understanding that our actual future results may be materially different from what we expect. We qualify all of the forward-looking statements in this prospectus by these cautionary statements. We undertake no obligation to publicly update any forward-looking statement, whether as a result of new information, future events or otherwise, except as may be required under the securities laws of the United States. You are advised, however, to consult any additional disclosures we make in our reports filed with the SEC.
5
We will describe our intended use of the net proceeds from any particular offering in the related prospectus supplement. We will not receive any proceeds from sales of Common Stock or Class A Common Stock by the selling shareholders.
6
If the registration statement of which this prospectus forms a part is used by selling shareholders for the resale of any securities registered thereunder, information about such selling shareholders, their beneficial ownership of the securities and their relationship with us will be set forth in a prospectus supplement, in a post-effective amendment, or in filings we make with the SEC under the Exchange Act that are incorporated by reference to such registration statement.
7
DESCRIPTION OF OUR CAPITAL STOCK
General
We are authorized to issue 150,000,000 shares of Common Stock, par value $.01 per share, 150,000,000 shares of Class A Common Stock, par value $.01 per share, and 10,000,000 shares of Preferred Stock, par value $.01 per share. As of July 13, 2023, (i) 54,705,934 shares of Common Stock were outstanding and such shares were held by approximately 277 holders of record and (ii) 82,307,444 shares of Class A Common Stock were outstanding and such shares were held by approximately 276 holders of record. None of the Preferred Stock is outstanding.
The transfer agent and registrar for the Common Stock and Class A Common Stock is Broadridge Financial Solutions, telephone number (800) 353-0103.
The following descriptions of the Common Stock, the Class A Common Stock and the 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 July 13, 2023, 6,463,406 shares are reserved for issuance as either Common Stock or Class A Common Stock under our existing stock option plans.
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.
Dividend Rights
The Florida Business Corporation Act and our Articles of Incorporation do not require our Board of Directors to declare dividends on our Common Stock or Class A Common Stock. The declaration of any dividend on our Common Stock or Class A Common Stock is a matter to be acted upon by our Board of Directors in its sole discretion. Our payment of dividends on our Common Stock or Class A Common Stock in the future will be determined by our Board of Directors in its sole discretion and will depend on business conditions, our financial condition, earnings and liquidity, and other factors.
The Florida Business Corporation Act authorizes the Board of Directors to make distributions, including repurchases of stock, to its shareholders subject to restrictions in the corporation’s articles of incorporation. The Florida Business Corporation Act also provides that a corporation may not make distributions to its shareholders if, after giving effect to the dividend or distribution, the corporation would be unable to pay its debts as they become due in the usual course of business, or if the total assets of the corporation would be less than the sum of its total liabilities plus the amount needed, if the corporation were dissolved at the time the distribution was paid, to satisfy the preferential rights of shareholders whose preferential rights upon dissolution of the corporation are greater than those of the shareholders receiving the dividend.
Shareholders of Common Stock and Class A 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.
We have historically paid semi-annual cash dividends on both our Class A Common Stock and Common Stock. During fiscal 2022, we paid an aggregate cash dividend of $.18 per share, which represents a 6% increase over the aggregate cash dividend of $.17 per share paid during fiscal 2021. In December 2022, our Board of Directors declared our 89th consecutive semi-annual cash dividend of $.10 per share paid in January 2023. This cash dividend represents an 11% increase over the prior semi-annual per share amount of $.09. Also, in June 2023, our Board of Directors declared our 90th consecutive semi-annual cash dividend of $.10 per share paid in July 2023.
Our Board of Directors will continue to review our dividend policy and will regularly evaluate whether dividends should be paid in cash or stock, as well as what amounts should be paid. 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.
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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. 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. As of the date of this Prospectus, the Board of Directors has not issued any 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 and shall be called by the President or the Secretary at the request of a majority of the Board of Directors then in office or at the request of the holders of not less than one-tenth (1/10th) of all the outstanding shares of the corporation entitled to vote at the meeting; |
| ● | 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 150,000,000 shares of Common Stock having one vote per share; and |
| ● | authorize the issuance of 150,000,000 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. |
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.
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DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
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 and any applicable guarantees that we may offer under this prospectus. While the terms we have summarized below will generally apply to any future debt securities and any applicable guarantees we may offer under this prospectus, we will describe the particular terms of any debt securities and any applicable guarantees that we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities and any applicable guarantees 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 “Description of Debt Securities and Guarantees -Subordination” below.
The debt securities may have the benefit of guarantees (each, a “guarantee”), by one or more of our subsidiaries (each, a “guarantor”). If a guarantor issues guarantees, the guarantees may be secured or unsecured and, if guaranteeing senior debt securities, unsubordinated or, if guaranteeing subordinated debt securities, subordinated obligations of the respective guarantors. Unless otherwise expressly stated or the context otherwise requires, as used in this section, the term “guaranteed debt securities” means debt securities that, as described in the prospectus supplement relating thereto, are guaranteed by one or more guarantors pursuant to the applicable indenture.
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 (including any applicable guarantees) 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:
| ● | the title; |
| ● | the principal amount being offered, and, if a series, the total amount authorized and the total amount outstanding; |
| ● | any limit on the amount that may be issued; |
| ● | 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; |
| ● | the maturity date; |
| ● | the principal amount due at maturity, and whether the debt securities will be issued with any original issue discount; |
| ● | whether and the extent the debt securities will be guaranteed by the guarantors, the ranking of any such guarantee, the terms of such subordination, if applicable, of any such guarantee and the form of any such guarantee; |
| ● | 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; |
| ● | 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; |
| ● | whether or not the debt securities will be secured or unsecured, and the terms of any secured debt; |
| ● | the terms of the subordination of any series of subordinated debt; |
| ● | the place where payments will be payable; |
| ● | 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; |
| ● | redemption provisions; |
| ● | provisions for a sinking fund purchase or other analogous fund, if any; |
| ● | 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; |
| ● | restrictive covenants; |
| ● | a discussion of any material or special United States federal income tax considerations applicable to the debt securities; |
| ● | information describing any book-entry features; |
| ● | the procedures for any auction and remarketing, if any; |
| ● | the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof; |
| ● | if other than dollars, the currency in which the series of debt securities will be denominated; and |
| ● | 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. |
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.
Certain Covenants
The indenture includes certain customary covenants requiring us, among other things, to:
| ● | pay the principal, interest and premium, if any, on the debt securities when due; |
| ● | maintain a place of payment; |
| ● | deliver an officer’s certificate to the trustee following the end of each fiscal year stating whether we are in default of any of the terms, provisions or conditions of the indenture; |
| ● | preserve and keep in full force and effect our corporate existence, except as otherwise provided in the indenture; and |
| ● | deposit sufficient funds with any paying agent on or before the due date for any principal, interest or premium, if any. |
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Consolidation, Merger and Sale of Assets
The indenture provides that we may not consolidate with or merge into any other person, or convey, transfer or lease all or substantially all of our assets, unless:
| ● | we are the surviving person in the case of a merger, or the person formed by such consolidation or into which we merge or the person which acquires or leases, all or substantially all of the assets of the Company (the “successor company”), is a corporation organized and existing under the laws of the United States, any state or the District of Columbia and expressly assumes all of our responsibilities and liabilities under the indenture, including the punctual payment of all amounts due on the debt securities and performance of the covenants in the indenture. |
| ● | immediately after giving effect to the transaction, no Event of Default (as defined below), and no event which, after notice or lapse of time or both, would become an Event of Default, exists; and |
| ● | we deliver to the trustee an officer’s certificate and an opinion of counsel, each stating that all related conditions have been satisfied. |
Upon any consolidation or merger, or any conveyance, transfer or lease of all or substantially all of the assets of the Company in accordance with the indenture, the successor company will succeed to, and be substituted for, and may exercise every right and power of ours under the indenture with the same effect as if the successor company had been named in our place in the indenture. The predecessor person will (except in the case of a lease) be discharged from all obligations and covenants under the indenture and any debt securities issued thereunder.
Events of Default
With respect to the debt securities of any series, an “Event of Default” means:
| ● | default in the payment of any interest upon debt securities of such series that continues for a period of 30 days after payment is due; |
| ● | default in the payment of the principal or premium, if any, on any debt securities of such series upon maturity, redemption, acceleration or otherwise; |
| ● | default in the deposit of any sinking fund payment when and as due under the terms of the debt securities of such series that continues for a period of 30 days after the date such deposit is due; |
| ● | default in the performance, or breach of, any covenant in the indenture and continuance of such default or breach for a period of 90 days after written notice to us of such default or breach from the trustee (or to us and the trustee from the holders of at least 25% of the principal amount of debt securities then outstanding under the indenture); |
| ● | certain events of bankruptcy, insolvency or reorganization relating to us; |
| ● | with respect to any series of debt securities that is guaranteed, such guarantee shall cease to be enforceable for any reason, except as contemplated or permitted in the indenture governing such debt security and such event continues for 10 Business Days; or |
| ● | any other Event of Default specified in the terms of such series. |
If there is a continuing Event of Default with respect to the debt securities of any series (other than an Event of Default regarding certain events of bankruptcy, insolvency or reorganization relating to us), either the trustee or the holders of at least 25% of the outstanding principal amount of the debt securities of such series may declare the principal amount of all of the debt securities of that series to be due and payable immediately. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization relating to us, the principal 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 the trustee or the holders, as the case may be, declare an acceleration with respect to the debt securities of any series, but before a judgment or decree based on such acceleration has been obtained, the holders of a majority in principal amount of the outstanding debt securities of such series may, under certain conditions, cancel such acceleration if we have cured all Events of Default (other than the nonpayment of accelerated principal) with respect to the debt securities of such series or all such Events of Default have been waived as provided in the indenture.
The indenture provides that if there is a continuing Event of Default, the trustee need not exercise any of its rights or powers under the indenture at the request or direction of any of the holders of debt securities, unless such holders have offered, and if requested, provided, to the trustee security or indemnity satisfactory to the trustee in its sole discretion. Subject to such provisions for security or indemnification of the trustee and certain other conditions, the holders of a majority in aggregate principal amount of the outstanding debt securities of a 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 the trustee holds 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 with respect to the indenture or for any remedy under the indenture unless:
| ● | such holder has previously given written notice to the trustee of a continuing Event of Default with respect to the debt securities of that series; |
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| ● | the holders of not less than 25% of the aggregate principal amount of the outstanding debt securities of that series have made a written request to the trustee to institute proceedings in respect of such Event of Default in its own name as trustee under the indenture; |
| ● | such holder or holders have offered, and if requested, provided to the trustee security or indemnity reasonably satisfactory to the trustee against the costs, expenses and liabilities to be incurred in compliance with such request; |
| ● | the trustee has failed to institute proceedings 60 days after the receipt of such notice, request and offer of indemnity; and |
| ● | no direction inconsistent with such written request has been given for 60 days by the holders of a majority in aggregate principal amount of the outstanding debt securities of that series. |
The holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, and any premium or interest on, such debt security on or after the date or dates they are to be paid as expressed in such debt security and to institute suit for the enforcement of any such payment.
We are required to furnish to the trustee annually a statement as to the absence of certain defaults under the indenture. The indenture provides that the trustee need not provide holders of debt securities notice of any default (other than the nonpayment of principal or any premium or interest) if it considers it in the interest of the holders of debt securities not to provide such notice.
Modification and Waiver
We and the trustee may amend the indenture with the consent of the holders of a majority of the aggregate principal amount of the outstanding debt securities of each series affected by the amendment. However, no such amendment may, without the consent of the holders of all then outstanding debt securities of the affected series:
| ● | change the due date of the principal of, or any installment of principal of or interest on, the debt securities of that series; |
| ● | reduce the principal amount of, interest rate on, premium payable upon redemption of, or amount of principal due and payable upon any declaration of acceleration of the debt securities of that series; |
| ● | change the currency of payment of principal of, or any premium or interest on, the debt securities of that series; |
| ● | impair the right to institute suit for the enforcement of any payment on or with respect to the debt securities of that series after the due date or redemption date of such debt securities, or alter the method of computation of interest; |
| ● | reduce the percentage in aggregate principal amount of the debt securities of that series then outstanding, the consent of whose holders is required for amendment of the indenture, for waiver of compliance with certain provisions of the indenture or for waiver of certain defaults and the related consequences; |
| ● | if the debt securities of any series are convertible, make any change that adversely affects in any material respect the right to convert such debt securities or decrease the conversion rate or increase the conversion price of such debt securities, unless such decrease or increase is permitted by the terms of such debt securities. |
| ● | modify the ranking or priority of the debt securities or any guarantee; or |
| ● | release any guarantor from any of its obligations under its guarantee or the relevant indenture otherwise than in accordance with the terms of such indenture. |
The holders of a majority of the aggregate principal amount of the outstanding debt securities of any series may waive, insofar as that series is concerned, future compliance by us with certain restrictive covenants of the indenture. The holders of at least a majority in aggregate principal amount of the outstanding debt securities of any series may waive any past default or Event of Default under the indenture with respect to that series, except a failure by us to pay the principal of, or any premium or interest on, any debt securities of that series or a provision that cannot be modified or amended without the consent of the holders of all outstanding debt securities of the affected series.
Satisfaction and Discharge
The indenture will cease to be of further effect with respect to the debt securities of any series when:
| ● | either (a) all outstanding debt securities of such series (except (i) mutilated, destroyed, lost or stolen debt securities that have been replaced or paid and debt securities for whose payment money has been deposited in trust and thereafter repaid to us and (ii) debt securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by us and thereafter repaid to us or discharged from such trust) have been delivered to the trustee cancelled or for cancellation or (b) all such debt securities not so delivered to the trustee cancelled or for cancellation have become due and payable, will become due and payable at their stated maturity within one year, or are to be called for redemption within one year, and we have irrevocably deposited with the trustee in trust an amount of cash or U.S. government obligations or a combination thereof in an amount sufficient to pay the entire indebtedness of such debt securities, including interest to the stated maturity or applicable redemption date; and |
| ● | we have paid all other sums due under the indenture with respect to such series of debt securities and delivered an officer’s certificate and opinion of counsel to the Trustee stating that all related conditions have been satisfied. |
Notwithstanding the above, certain provisions of the indenture will survive, including with respect to certain rights, obligations and immunities of the trustee.
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Defeasance
The debt securities or any series of debt securities may be defeased at any time in accordance with the terms set forth in the indenture. Any defeasance may terminate all of our obligations (with limited exceptions) and all obligations of any guarantors of such debt securities will also be discharged with respect to the guarantees of such debt securities with respect to such debt securities and the indenture (“legal defeasance”), or it may terminate only our obligations under any restrictive covenant that may be applicable to such debt securities (“covenant defeasance”).
We may exercise our legal defeasance option even though we have also exercised our covenant defeasance option. If we exercise our legal defeasance option, the debt securities may not be accelerated because of an Event of Default. If we exercise the covenant defeasance option, the debt securities may not be accelerated by reference to any restrictive covenants which apply to the debt securities.
To exercise either defeasance option, we must:
| ● | irrevocably deposit in trust with the trustee or another trustee money or U.S. government obligations or a combination thereof in an amount sufficient to pay and discharge the principal of and any premium and interest or other amounts due on the debt securities on the stated maturities or redemption dates therefor; |
| ● | deliver a certificate from a nationally recognized firm of independent public accountants or investment bankers expressing their opinion that the payments of principal and interest when due on the deposited U.S. government obligations, plus any deposited money, will provide cash at the times and in the amounts necessary to pay the principal of and premium and interest when due on all the debt securities to maturity or redemption, as the case may be; and |
| ● | comply with certain other conditions, including that in the case of legal defeasance, we must obtain an opinion of tax counsel, based on a change in the applicable U.S. federal income tax law or a ruling by the Internal Revenue Service, that the defeasance will not result in recognition of any gain or loss to holders for federal income tax purposes as a result of the deposit. |
If we exercise our option to effect a covenant defeasance as described above and the debt securities are thereafter declared due and payable because of an Event of Default (other than an Event of Default caused by failing to comply with the covenants that are defeased), the amount of money and securities we have deposited with the trustee would be sufficient to pay amounts due on the debt securities on their respective due dates but may not be sufficient to pay amounts due on the debt securities at the time of acceleration resulting from such Event of Default. However, we would remain liable for such payments.
Upon the effectiveness of defeasance with respect to any series of guaranteed debt securities, each guarantor of the debt securities of such series shall be automatically and unconditionally released and discharged from all of its obligations under its guarantee of the debt securities of such series and all of its other obligations under the applicable indenture in respect of the debt securities of that series, without any action by the Company, any guarantor or the trustee and without the consent of the holders of any debt securities.
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:
| ● | any distribution of our assets upon our dissolution, winding-up, liquidation or reorganization in bankruptcy, insolvency, receivership or other proceedings, or |
| ● | the acceleration of the maturity of the subordinated debt securities, or |
| ● | a failure to pay any senior debt or interest thereon when due and the continuance of that default beyond any applicable grace period, or |
| ● | the acceleration of the maturity of any senior debt as a result of a default, the holders of all of our senior debt will be entitled to receive: |
| ● | in the case of the first two bullet points above, payment of all amounts due or to become due on all senior debt, and |
| ● | in the case of the second two bullet points above, payment of all amounts due on all senior debt, |
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.
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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:
| ● | all of our indebtedness evidenced by notes, debentures, bonds or other securities sold by us for money or other obligations for money borrowed; |
| ● | 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 |
| ● | all renewals, extensions or refundings of indebtedness of the kinds described in either of the first two bullet points above, |
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.
Guarantees
The debt securities of any series may be guaranteed by one or more of our subsidiaries. However, the applicable indenture governing the debt securities will not require that any of our subsidiaries be a guarantor of any series of debt securities and, if guaranteed, it may not necessarily be guaranteed by all of our subsidiaries. As a result, a series of debt securities may not have any guarantors and the guarantors of any series of guaranteed debt securities may differ from the guarantors of any other series of guaranteed debt securities. If we issue a series of guaranteed debt securities, the identity of the specific guarantors of the debt securities of that series will be identified in the applicable prospectus supplement.
If we issue a series of guaranteed debt securities, a description of some of the terms of guarantees of those debt securities will be set forth in the applicable prospectus supplement. Unless otherwise provided in the prospectus supplement relating to a series of guaranteed debt securities, each guarantor of the debt securities of such series will unconditionally guarantee the due and punctual payment of the principal of, and premium, if any, and interest, if any, on each debt security of such series, all in accordance with the terms of such debt securities and the applicable indenture.
Notwithstanding the foregoing, unless otherwise provided in the prospectus supplement relating to a series of guaranteed debt securities, the applicable indenture will contain provisions to the effect that the obligations of each guarantor under its guarantees and such indenture shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such guarantor, result in the obligations of such guarantor under such guarantees and such indenture not constituting a fraudulent conveyance or fraudulent transfer under applicable law. However, there can be no assurance that, notwithstanding such limitation, a court would not determine that a guarantee constituted a fraudulent conveyance or fraudulent transfer under applicable law. If that were to occur, the court could void the applicable guarantor’s obligations under that guarantee, subordinate that guarantee to other debt and other liabilities of that guarantor or take other action detrimental to holders of the debt securities of the applicable series, including directing the holders to return any payments received from the applicable guarantor.
The applicable prospectus supplement relating to any series of guaranteed debt securities will specify other terms of the applicable guarantees.
If the applicable prospectus supplement relating to a series of our senior debt securities provides that those senior debt securities will have the benefit of a guarantee by any or all of our subsidiaries, unless otherwise provided in the applicable prospectus supplement, each such guarantee will be the unsubordinated obligation of the applicable guarantor.
If the applicable prospectus supplement relating to a series of our subordinated debt securities provides that those subordinated debt securities will have the benefit of a guarantee by any or all of our subsidiaries, unless otherwise provided in the applicable prospectus supplement, each such guarantee will be the subordinated obligation of the applicable guarantor.
Governing Law
Unless otherwise described in any prospectus supplement, the indenture and the debt securities (and any guarantees thereof) will be governed by, and construed in accordance with, the internal laws of the State of New York.
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DESCRIPTION OF DEPOSITARY SHARES
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.
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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:
| ● | the depositary has redeemed all related outstanding depositary shares; |
| ● | all outstanding shares of preferred stock have been converted into or exchanged for common stock; or |
| ● | 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.
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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:
| ● | the title of the debt warrants; |
| ● | the initial offering price; |
| ● | the title, aggregate principal amount and terms of the debt securities purchasable upon exercise of the debt warrants; |
| ● | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| ● | 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; |
| ● | the date, if any, on and after which the debt warrants and the related debt securities will be separately transferable; |
| ● | 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; |
| ● | if applicable, the minimum or maximum number of warrants that may be exercised at any one time; |
| ● | the date on which the right to exercise the debt warrants will commence and the date on which the right will expire; |
| ● | if applicable, a discussion of United States federal income tax, accounting or other considerations applicable to the debt warrants; |
| ● | 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; |
| ● | anti-dilution provisions of the debt warrants, if any; |
| ● | redemption or call provisions, if any, applicable to the debt warrants; and |
| ● | 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:
| ● | the title of the equity warrants; |
| ● | the initial offering price; |
| ● | the aggregate number of equity warrants and the aggregate number of shares of the equity security purchasable upon exercise of the equity warrants; |
| ● | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
| ● | 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; |
| ● | the date, if any, on and after which the equity warrants and the related equity security will be separately transferable; |
| ● | if applicable, the minimum or maximum number of the equity warrants that may be exercised at any one time; |
| ● | the date on which the right to exercise the equity warrants will commence and the date on which the right will expire; |
| ● | if applicable, a discussion of United States federal income tax, accounting or other considerations applicable to the equity warrants; |
| ● | anti-dilution provisions of the equity warrants, if any; |
| ● | redemption or call provisions, if any, applicable to the equity warrants; and |
| ● | any additional terms of the equity warrants, including terms, procedures and limitations relating to the exchange and exercise of the equity warrants. |
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.
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We may issue units comprised of one or more debt securities, guarantees of 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:
| ● | 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; |
| ● | any provisions of the governing unit agreement that differ from those described below; and |
| ● | any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units. 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:
| ● | to cure any ambiguity; |
| ● | to correct or supplement any defective or inconsistent provision; or, |
| ● | 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. |
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 not 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.
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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:
| ● | 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 |
| ● | 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. |
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:
| ● | 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 |
| ● | 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. |
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.
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We and the selling shareholders may sell the securities described in this prospectus from time to time in one or more transactions:
| ● | to purchasers directly; |
| ● | to underwriters for public offering and sale by them; |
| ● | through agents; |
| ● | through dealers; or |
| ● | through a combination of any of the foregoing methods of sale. |
We and the selling shareholders may distribute the securities from time to time in one or more transactions at:
| ● | a fixed price or prices, which may be changed; |
| ● | market prices prevailing at the time of sale; |
| ● | prices related to such prevailing market prices; or |
| ● | negotiated prices. |
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.
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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.
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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.
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Certain legal matters relating to the offering will be passed upon for us and the selling shareholders by Akerman LLP, Miami, Florida. Certain legal matters in connection with New Hampshire law will be passed upon for us by Devine, Millimet, & Branch, Professional Association, Manchester, New Hampshire. Certain legal matters in connection with Arizona law and Minnesota law will be passed upon for us by Ballard Sphar LLP, Phoenix Arizona. Certain legal matters in connection with Iowa law will be passed upon for us by Hartzog Conger Cason LLP, Oklahoma City, Oklahoma. Certain legal matters in connection with Oregon law will be passed upon for us by Stoel Rives LLP, Portland, Oregon.
The consolidated financial statements of HEICO Corporation and subsidiaries incorporated by reference in this prospectus, and the effectiveness of HEICO Corporation and subsidiaries’ internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, Such financial statements are incorporated by reliance upon the reports of such firm given their authority as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We are currently subject to the information requirements of the Exchange Act and in accordance therewith file periodic reports, proxy statements and other information with the SEC. Our SEC filings will also be available to you on the SEC’s website at http://www.sec.gov. 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 to be offered by us or the selling shareholders. 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 with respect to us and our securities, we refer you to the registration statement and the exhibits that were filed with the registration statement. Anyone may obtain the registration statement and its exhibits and schedules from the SEC as described above.
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 Exchange Act 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.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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:
| ● | The Annual Report on Form 10-K for the fiscal year ended October 31, 2022, filed with the SEC on December 21, 2022, including portions of the Company’s proxy statement on Schedule 14A, filed with the SEC on February 3, 2023, to the extent incorporated by reference into such Annual Report on Form 10-K; |
| ● | Our Quarterly Report on Form 10-Q for the quarter ended January 31, 2023, filed with the SEC on March 1, 2023; |
| ● | Our Quarterly Report on Form 10-Q for the quarter ended April 30, 2023, filed with the SEC on May 24, 2023; |
| ● | The Current Reports on Form 8-K filed with the SEC on December 21, 2022, March 20, 2023, April 12, 2023, May 15, 2023, May 18, 2023 and July 17, 2023; |
| ● | 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, and as further amended by the description of our Common Stock set forth in Exhibit 4.1 to our Annual Report on Form 10-K for the year ended October 31, 2019, including any further amendments thereto or reports filed for the purposes of updating this description; and |
| ● | 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 as further amended by the description of our Class A Common Stock set forth in Exhibit 4.1 to our Annual Report on Form 10-K for the year ended October 31, 2019, including any further amendments thereto or reports filed for the purposes of updating this description. |
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.
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HEICO Corporation
Common Stock
Class A Common Stock
Preferred Stock
Debt Securities
Guarantees of Debt Securities
Depositary Shares
Warrants
Units
PROSPECTUS
July 17, 2023
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.
Arizona Corporations
Section 10-851(A) of the Arizona Revised Statutes (“ARS”) permits a corporation to indemnify a current or former director (which term includes an individual who, while a director of a corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another entity) made a party to a proceeding against liability incurred in the proceeding if the director’s conduct was in good faith, the director reasonably believed, in the case of conduct in an official capacity with the corporation, that the conduct was in the corporation’s best interest, and in all other cases, that the conduct was at least not opposed to the corporation’s best interest, and in the case of any criminal proceedings, the director had no reasonable cause to believe the conduct was unlawful. With respect to proceedings by or in the right of the corporation, indemnification is limited to reasonable expenses incurred in connection with the proceeding. Under ARS Section 10-855, the determination of whether a director has met the standard of conduct set forth in Section 10-851 must be made by either (a) a majority of the corporation’s directors not at the time parties to the proceeding, (b) special legal counsel selected by either (i) a majority vote of the disinterested directors or, (ii) if there are no disinterested directors, a majority vote of the corporation’s board, or (c) the shareholders (excluding shares owned or voted by directors who are at the time parties to the proceeding). ARS Section 10-851(A)(2) permits a corporation to indemnify a current or former director made a party to a proceeding for conduct for which broader indemnification has been made permissible or obligatory under a provision of the corporation’s articles of incorporation pursuant to ARS Section 10-202(B)(2). Unless limited by a corporation’s articles of incorporation, ARS Section 10-852 requires a corporation to indemnify (i) a director who was the prevailing party (on the merits or otherwise) in the defense of any proceeding to which the director was a party because the director is or was a director of the corporation, against reasonable expenses incurred in connection with the proceeding, and (ii) an outside director against liability, unless a court of competent jurisdiction has determined before payment that the outside director failed to meet the standards described in ARS Section 10-851(A) and does not otherwise determine that the director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances.
Notwithstanding the foregoing, ARS Section 10-851(D) provides that a corporation may not indemnify a director (regardless of whether the director is an outside director) in connection with a proceeding in which the director was adjudged liable on the basis that the director improperly received a financial benefit, or a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation; provided, however, that a court of competent jurisdiction may determine that the director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, in which case indemnification under ARS Section 10-851(A) shall be limited to reasonable expenses incurred by the director in connection with the proceeding.
ARS Section 10-856 provides that a corporation may indemnify officers to the same extent as directors and, in the case of officers who are not also directors (or officers who are also directors but who are made a party to a proceeding based on an act or omission solely made as an officer), to the further extent as may be provided in the articles of incorporation, bylaws, a resolution of the board of directors, or contract, subject to certain exceptions and limitations. Further, ARS Section 10-856 provides that officers who are not directors are entitled to mandatory indemnification under ARS Section 10-852 described above to the same extent as directors. ARS Section 10-857 provides that a corporation may purchase and maintain insurance, including retrospectively rated and self-insured programs, on behalf of an individual who is or was a director or officer of the corporation or who, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other entity, against liability asserted against or incurred by the individual in that capacity or arising from the individual’s status as a director or officer, whether or not the corporation would have power to indemnify or advance expenses to the individual against the same liability under Arizona law.
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Articles of Incorporation.
The articles of incorporation of Apex Microtechnology Inc. provide that, to the fullest extent permitted by Arizona law, no director of the corporation shall be liable to the corporation or its shareholders for monetary damages of any action taken or any failure to take any action as a director. Further, these articles of incorporation provide that, to the fullest extent permitted by Arizona law, it shall indemnify and advance expenses to any person who incurs expenses or liabilities by reason of the fact he or she is or was an officer or director of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other entity, and such indemnification and advancement of expenses shall be mandatory in all circumstances in which the same are permitted by law.
Bylaws.
The bylaws of Apex Microtechnology Inc. provides that, to the fullest extent permitted by Arizona law, the corporation shall indemnify and advance expenses to any person who incurs expenses or liabilities by reason of the fact that: (a) he or she is or was serving as an officer or director of the corporation; or (b) while serving as an officer or director of the corporation, such person is or was, at the request of the corporation, serving as a director, officer, manager, partner, trustee, employee or agent of another corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other entity. Further, the bylaws provide that the foregoing indemnification and advancement of expenses shall be mandatory in all circumstances in which the same are permitted by law.
Arizona Limited Liability Companies
Section 29-610(A)(13) of the ARS provides that an Arizona limited liability company may “[i]ndemnify a member, manager, employee, officer or agent or any other person,” unless the articles of organization deny, limit or otherwise reduce in any lawful manner such power. See A.R.S. 29-610(B). A.R.S. Section 29-682 provides that the members of the limited liability company may adopt an operating agreement “containing provisions they deem appropriate” and “that that are not contrary to the law” and that “relates to the business of the limited liability company, the conduct of its affairs, its rights, duties or powers and the rights duties or powers of its members, managers, officer, employees or agents.” The Arizona limited liability company statutes do not itemize, describe or limit the scope or extent of any such indemnification, except that A.R.S. Section 29-610(B) states that the articles of organization may deny, limit or otherwise reduce in any lawful manner such power. If the articles do not deny, limit or reduce such power, one must look to the language of the operating agreement itself to determine such issues. A.R.S. Section 29-610(A)(6) also provides, subject to A.R.S. Section 29-610(B), that the limited liability company may make “contracts, including contracts of guaranty, suretyship and indemnification.” Nothing in the statutes itemizes, describes or limits the contract provisions of an indemnification. If the articles do not deny, limit or reduce such power, the language of the contract itself determines such issues.
Operating Agreements.
The operating agreement of Robertson Fuel Systems, L.L.C. provides that the company shall indemnify and hold harmless the managers, the member, any additional member, or any other officer or employee of the company from and against any and all losses, obligations, liabilities, damages, claims, deficiencies, costs and expenses which may be asserted against or sustained or incurred by a manager, the member, any additional member, or any other officer or employee of the company by reason of any act performed or omitted to be performed by such person in connection with the company’s business or the operating agreement, including reasonable attorneys’ fees incurred by such person in connection with the defense of any claim or action based on any such act or omission, except to the extent such indemnification is prohibited by law; provided, however, that the managers, the member, any additional member, or any other officer or employee of the company shall not be entitled to any indemnification in respect of any loss, damage or claim incurred by reason of such party’s gross negligence or willful misconduct.
California Corporations
Section 317 of the California Corporations Code (the “CCC”) provides that a corporation may indemnify directors and officers as well as other employees and agents of the corporation who were or are parties or are threatened to be made parties to any proceeding (except actions by or in the right of the corporation to procure a judgment in its favor) by reason of the fact that the person is or was an agent of the corporation, against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with the proceeding if that person acted in good faith and in a manner the person reasonably believed to be in the best interests of the corporation, and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of the person was unlawful. With respect to actions by or in the right of the corporation, indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged liable to the corporation, unless and only to the extent that the court in which the action is or was pending determines upon application that in view of all circumstances the person is fairly and reasonably entitled to indemnity for expenses. Section 317 of the CCC provides that it is not exclusive of other indemnification that may be granted by a corporation’s charter, bylaws, disinterested director vote, shareholders vote, agreement or otherwise, and it permits a corporation to purchase and maintain insurance on behalf of any agent of the corporation against any liability asserted against or incurred by the agent in that capacity or arising out of the agent’s status as such whether or not the corporation would have the power to indemnify the agent against that liability.
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Articles of Incorporation.
The articles of incorporation of Lucix Corp., Flight Microwave Corp., and TTT-Cubed, Inc. provide that the liability of the directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California law. Further, the articles of incorporation provide that such corporation may indemnify its agents in excess of indemnification expressly permitted by Section 317 of the CCC, subject only to applicable limits set forth in Section 204 of the CCC with respect to actions for breach of duty to such corporation and its shareholders.
Bylaws.
The bylaws of Santa Barbara Infrared, Inc. provide the corporation shall have the power and authority to indemnify any director, officer, committee member or other representative, employee or agent of the corporation in the manner and to the extent provided in Section 317 of the California General Corporation Law. Additionally, the corporation shall have the power to purchase and maintain insurance on behalf of any of its directors, officers, employees or agents insuring against liability asserted against or incurred by any such person in such capacity, whether or not the corporation would be empowered to indemnify such person.
The bylaws of AeroAntenna Technology, Inc., Lucix Corp., Thermal Energy Products, Inc. and Thermal Structures, Inc. provide the corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was an agent of the corporation, against expenses actually and reasonably incurred by such person in connection with the defense or settlement of such action if such person acted in good faith, in a manner such person believed to be in the best interests of the corporation, and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances. Additionally, no indemnification shall be made: (a) in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable to the corporation in the performance of such person’s duty to the corporation, unless and only to the extent that the court in which such action was brought shall determine upon application that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for the expenses which such court shall determine; (b) of amounts paid in settling or otherwise disposing of a threatened or pending action, with or without court approval; (c) of expenses incurred in defending a threatened or pending action which is settled or otherwise disposed of without court approval. ]. Additionally, the corporation shall have the power to purchase and maintain insurance on behalf of any of its directors, officers, employees or agents insuring against liability asserted against or incurred by any such person in such capacity, whether or not the corporation would be empowered to indemnify such person.
The bylaws of each of Paciwave, Inc., Flight Microwave Corp., TTT-Cubed, Inc. and Ramona Research Corp. provide that it shall, to the fullest extent permitted or authorized by current or future legislation or current or future judicial or administrative decisions, indemnify each person (including the heirs, executors, administrators and estate of the person) who was or is a party, or is threatened to be made a party, or was or is a witness, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and any appeal therefrom, against all liability (which includes all judgments, settlements, penalties and fines) and costs, charges and expenses (including attorneys’ fees) asserted against him or incurred by him by reason of the fact that the person is or was a director or officer or employee of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including serving as a fiduciary of an employee benefit plan). The corporation shall indemnify a person entitled to such indemnification described above in connection with a proceeding initiated by an indemnified person only if authorization for such proceeding was not denied by the board of directors of the corporation within 60 days after receipt of notice thereof from the indemnified person. Further, the bylaws provide that costs, charges and expenses (including reasonable attorneys’ fees) incurred by such indemnified person shall be paid by the corporation to the fullest extent permitted by law in advance of the final disposition of the proceeding, upon receipt of an undertaking reasonably satisfactory to the board of directors by or on behalf of the indemnified person to repay all amounts so advanced if it ultimately is determined that such person is not entitled to be indemnified by the corporation as authorized by such bylaws.
California Limited Liability Companies
Section 17704.08 of the California Revised Uniform Limited Liability Company Act permits a California limited liability company to provide for indemnification of any such person, except that such indemnification cannot extend to any breach of the duty of loyalty, an improper financial benefit, liability for excess distributions, intentional infliction of harm on the limited liability company or a member, or an intentional violation of criminal law.
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Operating Agreements.
The operating agreements of 8929 Fullbright Property, LLC and Carbon Design LLC, provide that the company shall indemnify and hold harmless the manager, the member, any additional member, or any other officer or employee of the company from and against any and all losses, obligations, liabilities, damages, claims, deficiencies, costs and expenses which may be asserted against or sustained or incurred by a manager, the member, any additional member, or any other officer or employee of the company by reason of any act performed or omitted to be performed by such person in connection with the company’s business or the operating agreement, including reasonable attorneys’ fees incurred by such person in connection with the defense of any claim or action based on any such act or omission, except to the extent such indemnification is prohibited by law; provided, however, that the managers, the member, any additional member, or any other officer or employee of the company shall not be entitled to any indemnification in respect of any loss, damage or claim incurred by reason of such party’s gross negligence or willful misconduct.
Colorado Corporations
Section 7-109-102 of the Colorado Business Corporation Act (“Colorado BCA”) provides that a corporation may indemnify an individual who was, is, or is threatened to be made a named defendant or respondent in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative, and whether formal or informal (a “proceeding”), because that individual is or was a director or is an individual who, while a director, is or was serving at the corporation’s request as a director, officer, agent, associate, employee, fiduciary, manager, member, partner, promoter, or trustee of, or in any other capacity with, another person or employee benefit plan (a “director”), against liability (including reasonable expenses incurred in connection with such proceeding) if (a) the individual’s conduct was in good faith, (b)(i) in the case of conduct in such individual’s official capacity, the individual reasonably believed such conduct was in the best interests of the corporation and (ii) in all other cases, the individual reasonably believed that such conduct was not opposed to the best interests of the corporation, and (c) in the case of any criminal proceeding, the individual had no reasonable cause to believe that the individual’s conduct was unlawful. Section 7-109-107 of the Colorado BCA provides that a corporation may indemnify an officer to the same extent as a director and, in the case of an officer who is not also a director, to such further extent as may be provided for by its articles of incorporation, bylaws, general or specific action of its board of directors or shareholders, or contract. An officer who is also a director is entitled to be indemnified to such further extent as may be provided for by its articles of incorporation, bylaws, general or specific action of its board of directors or shareholders, or contract if the basis on which such officer is made a party to the proceeding is an act or omission solely as an officer.
Section 7-109-107 and, unless limited by a corporation’s articles of incorporation, Section 7-109-103 of the Colorado BCA require that a corporation indemnify a person who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the person was a party because such person is or was a director or officer of the corporation against reasonable expenses incurred in connection with such proceeding.
Under Section 7-109-102 of the Colorado BCA, indemnification may not be made in connection with a proceeding by or in the right of the corporation in which a director was adjudged liable to the corporation (except for reasonable expenses incurred in connection with the proceeding if it is determined that the director has met the standard of conduct that permits the corporation to indemnify the director), or in connection with any other proceeding charging that a director derived an improper personal benefit and in which the director was adjudged liable on that basis. Notwithstanding the foregoing, unless otherwise provided in the corporation’s articles of incorporation, Section 7-109-105 of the Colorado BCA permits a court to authorize indemnification in either of the foregoing scenarios if the court determines that (i) the corporation is required to indemnify or advance expenses to such director under the Colorado BCA, the corporation’s articles of incorporation, its bylaws or in a resolution adopted or a contract approved by the board of directors or shareholders; or (ii) if the court determines that the director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, in which case indemnification is limited to reasonable expenses incurred in connection with the proceeding and reasonable expenses incurred to obtain court-ordered indemnification.
Under Section 7-109-108 of the Colorado BCA, a corporation may purchase and maintain insurance on behalf of a person who is or was a director, officer, employee, fiduciary, or agent of the corporation, or who, while a director, officer, employee, fiduciary, or agent of the corporation, is or was serving at the request of the corporation as a director, officer, agent, associate, employee, fiduciary, manager, member, partner, promoter, or trustee of, or in any other capacity with, another person or an employee benefit plan, against liability asserted against or incurred by the person in that capacity or arising from the person’s status as a director, officer, employee, fiduciary, or agent, whether or not the corporation would have power to indemnify the person against the same liability under the Colorado BCA.
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Bylaws.
The bylaws of Quell Corp. provide that the corporation has the power to indemnify any person who is or was a director, officer, employee, or other agent of the corporation or of its predecessor, or is or was serving as such of another corporation, partnership, joint venture, trust or other enterprise at the request of the corporation against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative.
Colorado Limited Liability Companies
Section 7-80-104(1)(k) of the Colorado Limited Liability Company Act permits a company to indemnify a member or manager or former member or manager of the limited liability company as provided in Section 7-80-407. Under Section 7-80-407, a limited liability company shall reimburse a member or manager for payments made, and indemnify a member or manager for liabilities incurred by the member or manager, in the ordinary conduct of the business of the limited liability company or for the preservation of its business or property if such payments were made or liabilities incurred without violation of the member’s or manager’s duties to the limited liability company.
Operating Agreements.
The operating agreement of Rocky Mountain Hydrostatics, LLC, provides that each member or employee, agent, shareholder, partner, member or manager of a member and their respective officers, directors, agents and employees and each member of the board shall be entitled to indemnification by the company to the full extent permitted by Title 7 Article 109 of the Colorado Revised Statutes
Connecticut Corporations
Section 33-771 of the Connecticut Business Corporation Act (the “Connecticut BCA”) generally provides that a corporation may indemnify an individual who is a party to a proceeding because he is a director against liability incurred in the proceeding if: (1) (A) he conducted himself in good faith; (B) he reasonably believed (i) in the case of conduct in his official capacity, that his conduct was in the best interests of the corporation; and (ii) in all other cases, that his conduct was at least not opposed to the best interests of the corporation; and (C) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful; or (2) he engaged in conduct for which broader indemnification has been made permissible or obligatory under a provision of the certificate of incorporation.
The Connecticut BCA also provides that, unless ordered by a court under Section 33-774 of the Connecticut BCA, a corporation may not indemnify a director under Section 33-771: (1) in connection with a proceeding by or in the right of the corporation except for reasonable expenses incurred in connection with the proceeding if it is determined that the director has met the relevant standard of conduct set forth above; or (2) in connection with any proceeding with respect to conduct for which he was adjudged liable on the basis that he received a financial benefit to which he was not entitled, whether or not involving action in his official capacity.
A corporation may not indemnify a director under Section 33-771 unless authorized for a specific proceeding after a determination has been made that indemnification of the director is permissible because he has met the relevant standard of conduct set forth in said Section. The determination shall be made: (1) if there are two or more disinterested directors, by the board of directors by a majority vote of all the disinterested directors, a majority of whom shall for such purpose constitute a quorum, or by a majority of the members of a committee of two or more disinterested directors appointed by such a vote; (2) by special legal counsel (A) selected in the manner prescribed in clause (1) of this sentence, or (B) if there are fewer than two disinterested directors, selected by the board of directors, in which selection directors who do not qualify as disinterested directors may participate; or (3) by the shareholders, but shares owned by or voted under the control of a director who at the time does not qualify as a disinterested director may not be voted on the determination.
In addition, under the Connecticut BCA a director who is a party to a proceeding because he is a director may apply for indemnification or an advance for expenses to the court conducting the proceeding or to another court of competent jurisdiction. After receipt of an application and after giving any notice it considers necessary, the court shall: (1) order indemnification if it determines that the director is entitled to mandatory indemnification under Section 33-772 of the Connecticut BCA; (2) order indemnification or advance for expenses if the court determines that the director is entitled to indemnification or advance for expenses pursuant to a provision authorized by Section 33 778(a) of the Connecticut BCA; or (3) order indemnification or advance for expenses if the court determines, in view of all the relevant circumstances, that it is fair and reasonable (A) to indemnify the director or (B) to advance expenses to the director, even if he has not met the relevant standard of conduct set forth in Section 33-771(a) of the Connecticut BCA, failed to comply with Section 33-773 of the Connecticut BCA or was adjudged liable in a proceeding referred to in Section 33-771(d)(1) or (2) of the Connecticut BCA, provided if he was adjudged so liable his indemnification shall be limited to reasonable expenses incurred in connection with the proceeding.
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Section 33-776 of the Connecticut BCA provides that (a) a corporation may indemnify and advance expenses under Sections 33-770 to 33-779 of the Connecticut BCA, inclusive, to an officer, employee or agent of the corporation who is a party to a proceeding because he is an officer, employee or agent of the corporation (1) to the same extent as a director, and (2) if he is an officer, employee or agent but not a director, to such further extent, consistent with public policy, as may be provided by contract, the certificate of incorporation, the bylaws or a resolution of the board of directors. A corporation may delegate to its general counsel or other specified officer or officers the ability under Section 33-376(a) of the Connecticut BCA to determine that indemnification or advance for expenses to such officer, employee or agent is permissible and the ability to authorize payment of such indemnification or advance for expenses. By their terms, the provisions of Section 33-376 that are described in this paragraph do not in any way limit either the ability or the obligation of a corporation to indemnify and advance expenses under other applicable law to any officer, employee or agent who is not a director.
Connecticut Limited Liability Companies
Section 34-255g of the Connecticut Uniform Limited Liability Company Act (the “CULLCA”) provides that a limited liability company: (1) may indemnify and hold harmless a person with respect to any claim or demand against the person and any debt, obligation or other liability incurred by the person by reason of the person’s former or present capacity as a member, manager or officer if the claim, demand, debt, obligation or other liability does not arise from the person’s breach of Section 34-255d of the CULLCA, Section 34-255f of the CULLCA or Section 34-255h of the CULLCA; and (2) shall indemnify and hold harmless a person who was wholly successful, on the merits or otherwise, in the defense of any proceeding with respect to any claim or demand against the person by reason of the person’s former or present capacity as a member, manager or officer of the company from and against reasonable expenses, including attorney’s fees and costs incurred by the person in connection with such claim or demand.
Operating Agreements.
The operating agreements of 60 Sequin LLC and Astro Property, LLC provide that the company shall indemnify and hold harmless the managers, the member, any additional member, or any other officer or employee of the company from and against any and all losses, obligations, liabilities, damages, claims, deficiencies, costs and expenses which may be asserted against or sustained or incurred by a manager, the member, any additional member, or any other officer or employee of the company by reason of any act performed or omitted to be performed by such person in connection with the company’s business or the operating agreement, including reasonable attorneys’ fees incurred by such person in connection with the defense of any claim or action based on any such act or omission, except to the extent such indemnification is prohibited by law; provided, however, that the managers, the member, any additional member, or any other officer or employee of the company shall not be entitled to any indemnification in respect of any loss, damage or claim incurred by reason of such party’s gross negligence or willful misconduct.
Delaware Corporations
Section 145(a) of the General Corporation Law of the State of Delaware (the “DGCL”), provides, in general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), because the person is or was a director or officer of the corporation. Such indemnity may be against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and if, with respect to any criminal action or proceeding, the person did not have reasonable cause to believe the person’s conduct was unlawful.
Section 145(b) of the DGCL provides, in general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or was a director or officer of the corporation, against any expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation.
Section 145(g) of the DGCL provides, in general, that a corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation against any liability asserted against the person in any such capacity, or arising out of the person’s status as such, whether or not the corporation would have the power to indemnify the person against such liability under the provisions of the law. The corporation would have the power to indemnify the person against such liability under the provisions of the law.
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Articles of Incorporation.
The articles of incorporation of Jetseal, Inc., Reinhold Industries Inc. and HVT Group, Inc. provide that directors of the corporation shall not be liable to either the corporation or its stockholders for monetary damages for a breach of fiduciary duties unless the breach involves : (i) a director’s duty of loyalty to the corporation or its stockholders; (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) pursuant to Section 174 of the DGCL; or (iv) a transaction from which the director derived an improper personal benefit.
The articles of incorporation of Apex Holding Corp. provide that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that the elimination or limitation of liability is prohibited under the DGCL as in effect when such liability is determined.
The articles of incorporation of Reinhold Industries Inc. and Apex Holding Corp. also provide that each person who was or is a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, by reason of the fact that he or she or a person of whom he or she is the legal representative, is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action or inaction in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the corporation to the fullest extent permitted by the DGCL, against all expenses, liability and loss reasonably incurred or suffered by such person in connection therewith. Such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person. Provided, however, that the corporation shall not indemnify any such person seeking indemnification in connection with a proceeding initiated by such person unless the initiation of such proceeding was authorized by the board of directors of the corporation. Additionally, the articles of incorporation of Reinhold Industries Inc. and Apex Holding Corp. provide that the corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers.
The articles of incorporation of 3D Plus U.S.A., Inc. provide that the personal liability of the directors of the corporation is eliminated to the fullest extent permitted by the provisions of paragraph (7) of subsection (b) of Section 102 of the DGCL. Further, such articles of incorporation provide that the corporation shall, to the fullest extent permitted by the provisions of Section 145 of the DGCL, indemnify any and all persons whom it shall have power to indemnify under said section from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said section, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of heirs, executors and administrators of such a person.
Bylaws.
The bylaws of 3D Plus U.S.A., Inc. provide that, to the extent permitted by Delaware law, the corporation shall indemnify a person against all losses, liabilities, judgments, penalties (including excise and similar taxes), fines, settlements, and reasonable expenses actually incurred by the person in connection with a proceeding in which such person was, is, or is threatened to be, made a named defendant or respondent because the person is or was a director or officer of the corporation if it is determined in accordance with applicable law that such director or officer: (a) conducted himself in good faith; (b) reasonably believed: (i) in the case of conduct in his official capacity as a director or officer of the corporation that his conduct was in the corporation’s best interests; (ii) in all other cases, that his conduct was at least not opposed to the corporation’s best interests; and in the case of any criminal proceeding, had no reasonable cause to believe his conduct was unlawful; provided, however, if the person is found liable to the corporation or is found liable on the basis that personal benefit was improperly received by the person, the indemnification (i) is limited to reasonable expenses actually incurred by the person in connection with the proceeding and (ii) shall not be made at all in respect of any proceeding in which the person shall have been found liable for willful or intentional misconduct in the performance of his duty to the corporation. Additionally. the corporation may purchase and maintain insurance or other arrangement on behalf of any person who is or was a director or officer of the corporation against any liability asserted against him and incurred by him in such capacity or arising out of his or her status as such director or officer, whether or not the corporation would have the power to indemnify him against that liability.
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The bylaws of Bay Equipment Corp., Reinhold Holdings, Inc., Reinhold Industries, Inc. and Switchcraft Holdco, Inc. provide that the corporation shall indemnify to the fullest extent permitted by applicable law, now or hereafter in effect, any director or executive officer of the corporation, and may, upon the act of the Board of Directors, indemnify to the fullest extent permitted by applicable law, now or hereafter in effect, any officer or other person whom it shall have the power to indemnify, who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was acting in his official capacity as a director, officer, employee or agent of the corporation, as the case may be, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees and expenses and court costs) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable in the performance of his duty to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
The bylaws of Apex Holding Corp. provide that, to the fullest extent permitted by Delaware law, the corporation shall indemnify and advance expenses to any person who incurs expenses or liabilities by reason of the fact that: (a) he or she is or was serving as an officer or director of the corporation; or (b) while serving as an officer or director of the corporation, such person is or was, at the request of the corporation, serving as a director, officer, manager, partner, trustee, employee or agent of another corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other entity. Further, the bylaws provide that the foregoing indemnification and advancement of expenses shall be mandatory in all circumstances in which the same are permitted by law.
The bylaws of HVT Group, Inc. provide that, each person who at any time is or shall have been a director, officer, employee or agent of the corporation, or is or shall have been serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified by the corporation in accordance with and to the full extent permitted by the DGCL, and such right of indemnification shall not be deemed exclusive of any other rights to which a person seeking indemnification may be entitled. Further, the bylaws provide that if the corporation pays indemnity or makes an advance of expenses to a director, officer, employee or agent, the corporation shall report the indemnification or advance in writing to the shareholders with or before the notice of the next shareholders meeting.
Delaware Limited Liability Companies
Section 18-108 of the Delaware Limited Liability Company Act provides that “[s]ubject to such standards and restrictions, if any, as are set forth in its limited liability company agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.”
Operating Agreements.
The operating agreement of Intelligent Devices, LLC provides that the company shall indemnify and hold harmless the managers, the member, any additional member, or any other officer or employee of the company from and against any and all losses, obligations, liabilities, damages, claims, deficiencies, costs and expenses which may be asserted against or sustained or incurred by a manager, the member, any additional member, or any other officer or employee of the company by reason of any act performed or omitted to be performed by such person in connection with the company’s business or the operating agreement, including reasonable attorneys’ fees incurred by such person in connection with the defense of any claim or action based on any such act or omission, except to the extent such indemnification is prohibited by law; provided, however, that the managers, the member, any additional member, or any other officer or employee of the company shall not be entitled to any indemnification in respect of any loss, damage or claim incurred by reason of such party’s gross negligence or willful misconduct.
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The operating agreement of Pioneer Industries, LLC provides that each member or employee, agent, shareholder, partner, member or manager of a member and their respective officers, directors, agents and employees and each manager (“Indemnified Person”) who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (“Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that the Indemnified Person is or was a member or serving as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another entity that is or was a member or a manager shall be indemnified by the company against judgments, penalties (including excise and similar taxes and punitive damages), fines, settlements and reasonable costs and expenses (including, without limitation, attorneys’ fees) actually incurred by such Indemnified Person in connection with such Proceeding if such Indemnified Person acted in good faith and in a manner he, she, or it reasonably believed to be in, or not opposed to, the best interest of the company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his, her or its conduct was unlawful, provided, however, that in no event shall the company be liable for indemnification for any loss, liability, cost or expense to the extent such loss, liability, cost or expense arises out of or is in connection with any acts expressly prohibited by the Delaware Limited Liability Company Act or is the result of gross negligence, fraud or intentional misconduct by such Person. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person did not act in good faith and in a manner which he, she or it reasonably believed to be in or not opposed to the best interests of the company or, with respect to any criminal action or proceeding, that the Indemnified Person had reasonable cause to believe that his, her or its conduct was unlawful.
The operating agreement of Sierra Microwave Technology, LLC provides that the company shall indemnify and hold harmless the members, the board and the officers of the company, (each of the foregoing persons referred to as a “Covered Person”) to the fullest extent permitted by law against losses, judgments, liabilities, expenses and amounts incurred or paid, including attorneys’ fees, costs, judgments, amounts paid in settlement, fines, penalties and other liabilities (“Losses”), by the Covered Person in connection with any claim, action, suit or proceeding (collectively, “Claims”) in which such Covered Person becomes involved as a party or otherwise, or with which such Covered Person shall be threatened, by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the company in connection with the conduct of its business except that no Covered Person shall be entitled to be indemnified in respect of any Loss, or damage or Claim incurred by such Covered Person by reason of such Covered Person’s gross negligence, willful misconduct or breach of fiduciary duty. Expenses incurred by any Covered Person in connection with the preparation and presentation of a defense or response to any Claims covered hereby shall be paid by the company on demand. Upon receipt by the company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person shall be entitled to be indemnified. The company shall pay the amounts described herein to the Covered Person (or to the parties making Claims against the Covered Person in satisfaction of their Claims) within 10 days after written demand therefor is delivered to the company by the Covered Person.
Florida Corporations
Section 607.0851 of the Florida Business Corporation Act (“FBCA”) provides that a Florida corporation shall have the power to indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of, the corporation), by reason of the fact that he is or was a director or officer of the corporation against liability incurred in connection with such proceeding, including any appeal thereof, if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 607.0851(4) of the FBCA provides that a Florida corporation shall have the power to indemnify any person, who was or is a party to any proceeding by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he or she is or was a director or officer of the corporation against expenses and amounts paid in settlement not exceeding, in the judgment of the board of directors, the estimated expense of litigating the proceeding to conclusion, actually and reasonably incurred in connection with the defense or settlement of such proceeding, including any appeal thereof. Such indemnification shall be authorized if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made under this subsection in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable unless, and only to the extent that, the court in which such proceeding was brought, or any other court of competent jurisdiction, shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
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Section 607.0852 of the FBCA further provides that the corporation shall indemnify an individual who is or was a director or officer who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the individual was a party because he or she is or was a director or officer of the corporation against expenses incurred by the individual in connection with the proceeding. Also, according to Section 607.858 of the FBCA, indemnification and advancement of expenses provided pursuant to Section 607.0853 is not exclusive.
Section 607.0857 of the FBCA further provides that the corporation shall have the power to purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him or her or incurred by him or her in any such capacity or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liabilities under Chapter 607 of the FBCA.
Notwithstanding the foregoing, Section 607.0859 of the FBCA provides that indemnification or advancement of expenses shall not be made to or on behalf of any director or officer if a judgment or other final adjudication establishes that his or her actions, or omissions to act, were material to the cause of action so adjudicated and constitute: (i) a violation of the criminal law, unless the director or officer had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful; (ii) a transaction from which the director or officer derived an improper personal benefit; (iii) in the case of a director, a circumstance under which the liability provisions regarding unlawful distributions are applicable; or (iv) willful or intentional misconduct or a conscious disregard for the best interests of the corporation in a proceeding by or in the right of the corporation to procure a judgment in its favor or in a proceeding by or in the right of a shareholder.
Section 607.0831 of the FBCA provides that a director of a Florida corporation is not personally liable for monetary damages to the corporation or any other person for any statement, vote, decision, or failure to act, by a director, unless: (i) the director breached or failed to perform his or her duties as a director; and (ii) the director’s breach of, or failure to perform, those duties constitutes: (A) a violation of criminal law, unless the director had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his conduct was unlawful; (B) a circumstance under which the transaction at issue is one from which the director derived an improper personal benefit, either directly or indirectly; (C) a circumstance under which the liability provisions regarding unlawful distributions are applicable; (D) in a proceeding by or in the right of the corporation to procure a judgment in its favor or by or in the right of a shareholder, conscious disregard for the best interest of the corporation, or willful or intentional misconduct; or (E) in a proceeding by or in the right of someone other than the corporation or a shareholder, recklessness or an act or omission which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
Articles of Incorporation.
The articles of incorporation of HEICO Aerospace Holdings Corp., Turbine Kinetics, Inc., Future Aviation, Inc., HEICO Aerospace Parts Corp., HNW 2 Building Corp., HNW Building Corp., NIACC-Avitech Technologies, Inc., HEICO Electronic Technologies Corp., Connectronics Corp., Lumina Power, Inc., and Radiant Power Corp. provide that it shall indemnify and insure its officers and directors to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended.
The articles of incorporation of Charter Engineering, Inc. provide that it shall indemnify a director or officer of the corporation who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director or officer was a party because the director or officer is or was a director or officer of the corporation against reasonable attorney fees and expenses incurred by the director or officer in connection with the proceeding. Additionally, the articles of incorporation of Charter Engineering, Inc. provide that the corporation may indemnify an individual made party to a proceeding because the individual is or was a director, officer, employee or agent of the corporation against liability if authorized in the specific case after determination, in the manner required by the board of directors, that indemnification of such person, as the case may be, is permissible in the circumstances because such person has met the standard of conduct set forth by the board of directors. Further, the indemnification and advancement of attorney fees and expenses for directors, officers, employees and agents shall apply when such persons are serving at the corporation’s request while a director, officer, employee or agent of the corporation, as the case may be, as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, as well as in their official capacity with the corporation, and such payment or reimbursement of reasonable attorney fees and expenses may occur in advance of final disposition of the proceeding. Charter Engineering, Inc. may also purchase and maintain insurance on behalf of an individual arising from the individual’s status as director, officer, employee or agent of the corporation, whether or not the corporation would have the power to indemnify the individual against the same liability under law.
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Bylaws.
The bylaws of each of HEICO Aerospace Holdings Corp., HEICO Parts Group, Inc., Turbine Kinetics, Inc., HEICO Flight Support Corp., 34 Freedom Court, Corp., Action Research Corporation, CSI Aerospace, Inc., Future Aviation, Inc., HEICO Aerospace Parts Corp., HFSC III Corp., HFSC IV Corp., HFSC XI Corp., HNW 2 Building Corp., HNW Building Corp., NIACC-Avitech Technologies Inc., Northwings Accessories Corp., Optical Display Engineering Inc., Carbon by Design Corporation, Seal Q Corp., HEICO Electronic Technologies Corp., TRAD Test & Radiations, Inc., Connectronics Corp., DB Control Corp., Charter Engineering, Inc., Dukane Seacom, Inc., HETC II Corp., Lumina Power, Inc., Pyramid Semiconductor Corp., Radiant Power Corp., Radiant-Seacom Repairs Corp., Mastiff Design Inc., and 16-1741 Property, Inc. provide that it shall, to the fullest extent permitted or authorized by current or future legislation or current or future judicial or administrative decisions, indemnify each person (including the heirs, executors, administrators and estate of the person) who was or is a party, or is threatened to be made a party, or was or is a witness, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and any appeal therefrom, against all liability (which includes all judgments, settlements, penalties and fines) and costs, charges and expenses (including attorneys’ fees) asserted against him or incurred by him by reason of the fact that the person is or was a director or officer or employee of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including serving as a fiduciary of an employee benefit plan). The corporation shall indemnify a person entitled to such indemnification described above in connection with a proceeding initiated by an indemnified person only if authorization for such proceeding was not denied by the board of directors of the corporation within 60 days after receipt of notice thereof from the indemnified person. Further, the bylaws provide that costs, charges and expenses (including reasonable attorneys’ fees) incurred by such indemnified person shall be paid by the corporation to the fullest extent permitted by law in advance of the final disposition of the proceeding, upon receipt of an undertaking reasonably satisfactory to the board of directors by or on behalf of the indemnified person to repay all amounts so advanced if it ultimately is determined that such person is not entitled to be indemnified by the corporation as authorized by such bylaws.
The bylaws of Aircraft Technology, Inc. provide that it shall indemnify each and every one of its directors, officers, employees and agents to the fullest extent permitted by law.
The bylaws of Jet Avion Corporation and LPI Industries Corporation provide that any person who was or is a party, or is threated to be made a party to any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, and whether or not brought by or in the right of the corporation, by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation in such capacity of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified by the corporation (unless the conduct of such person is finally adjudged to have been grossly negligent or to constitute willful misconduct) against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding, including any appeal thereof. Further, the bylaws provide that costs, charges and expenses (including reasonable attorneys’ fees) incurred by such indemnified person shall be paid by the corporation to the fullest extent permitted by law in advance of the final disposition of the proceeding, upon receipt of an undertaking reasonably satisfactory to the board of directors by or on behalf of the indemnified person to repay all amounts so advanced if it ultimately is determined that such person is not entitled to be indemnified by the corporation as authorized by such bylaws. The bylaws provide that such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent, and shall inure to the benefit of the heirs, executors and administrators of such person. The bylaws provide that the foregoing rights of indemnification shall not be deemed exclusive of any other right to which any such person may otherwise be entitled.
Florida Limited Liability Companies
Section 605.0408(2) of the Florida Revised Limited Liability Company Act (“FLLCA”) permits a company to indemnify and hold harmless a person with respect to a claim or demand against the person and a debt, obligation, or other liability incurred by the person by reason of the person’s former or present capacity as a member or manager if the claim, demand, debt, obligation, or other liability does not arise from the person’s breach of Section 605.0405 of the FLLCA (limitations on distributions), Section 605.0407 of the FLLCA (management of limited liability company), Section 605.04071 of the FLLCA (delegation of rights and powers to manage), Section 605.04072 of the FLLCA (selection and terms of managers in a manager-managed limited liability company), Section 605.04073 of the FLLCA (voting rights of members and managers), Section 605.04074 of the FLLCA (agency rights of members and managers), or Section 605.04091 of the FLLCA (standards of conduct for members and managers). Under Section 605.0408 (1) of the FLLCA, a limited liability company may reimburse a member of a member-managed company or a manager of a manager-managed company for any payment made by the member or manager in the course of the member’s or manager’s activities on behalf of the company if the member or manager complied with Sections 605.0407-605.04074 of the FLLCA, Section 605.0408 of the FLLCA, and Section 605.04091 of the FLLCA in making the payment.
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According to Section 605.0105(3)(p) of the FLLCA, an operating agreement may not provide for indemnification for a member or manager under Section 605.0408 of the FLLCA for (1) conduct involving bad faith, willful or intentional misconduct, or a knowing violation of law, (2) a transaction from which the member or manager derived an improper personal benefit, (3) a circumstance under which the liability for improper distribution is applicable, or (4) a breach of duties or obligations under Section 605.04091 of the FLLCA (standards of conduct for members and managers), taking into account a restriction, an expansion, or an elimination of such duties and obligations provided for in the operating agreement to the extent allowed by subsection (4) of Section 605.0105 of the FLLCA.
Operating Agreements.
The operating agreements of 26 Ward Hill Property, LLC, 3 McCrea Property Company, LLC, AeroELT, LLC, HEICO Repair Group Aerostructures, LLC, HEICO Repair, LLC, HETC I, LLC, HETC III, LLC, HETC IV, LLC, HETC V, LLC, HFSC VI, LLC, HFSC VII, LLC, HFSC VIII, LLC and Radiant Power IDC, LLC provide that the company shall indemnify and hold harmless the managers, the member, any additional member, or any other officer or employee of the company from and against any and all losses, obligations, liabilities, damages, claims, deficiencies, costs and expenses which may be asserted against or sustained or incurred by a manager, the member, any additional member, or any other officer or employee of the company by reason of any act performed or omitted to be performed by such person in connection with the company’s business or the operating agreement, including reasonable attorneys’ fees incurred by such person in connection with the defense of any claim or action based on any such act or omission, except to the extent such indemnification is prohibited by law; provided, however, that the managers, the member, any additional member, or any other officer or employee of the company shall not be entitled to any indemnification in respect of any loss, damage or claim incurred by reason of such party’s gross negligence or willful misconduct.
The operating agreements of Aerospace & Commercial Technologies, LLC, Blue Aerospace LLC, Camtronics, LLC, Harter Aerospace, LLC, Optical Display Engineering, LLC, Ridge Holdco, LLC, Sensor Technology Engineering, LLC, Sunshine Avionics LLC and TSID Holdings, LLC provide that each member or employee, agent, shareholder, partner, member or manager of a member and their respective officers, directors, agents and employees and each manager (“Indemnified Person”) who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (“Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that the Indemnified Person is or was a member or serving as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another entity that is or was a member or a manager shall be indemnified by the company against judgments, penalties (including excise and similar taxes and punitive damages), fines, settlements and reasonable costs and expenses (including, without limitation, attorneys’ fees) actually incurred by such Indemnified Person in connection with such Proceeding if such Indemnified Person acted in good faith and in a manner he, she, or it reasonably believed to be in, or not opposed to, the best interest of the company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his, her or its conduct was unlawful, provided, however, that in no event shall the company be liable for indemnification for any loss, liability, cost or expense to the extent such loss, liability, cost or expense arises out of or is in connection with any acts expressly prohibited by the Florida Revised Limited Liability Company Act or is the result of gross negligence, fraud or intentional misconduct by such Person. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person did not act in good faith and in a manner which he, she or it reasonably believed to be in or not opposed to the best interests of the company or, with respect to any criminal action or proceeding, that the Indemnified Person had reasonable cause to believe that his, her or its conduct was unlawful.
The operating agreements of Prime Air LLC and Seal Dynamics LLC provide that the company shall indemnify and hold harmless the members, the board and the officers of the company, (each of the foregoing persons referred to as a “Covered Person”) to the fullest extent permitted by law against losses, judgments, liabilities, expenses and amounts incurred or paid, including attorneys’ fees, costs, judgments, amounts paid in settlement, fines, penalties and other liabilities (“Losses”), by the Covered Person in connection with any claim, action, suit or proceeding (collectively, “Claims”) in which such Covered Person becomes involved as a party or otherwise, or with which such Covered Person shall be threatened, by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the company in connection with the conduct of its business except that no Covered Person shall be entitled to be indemnified in respect of any Loss, or damage or Claim incurred by such Covered Person by reason of such Covered Person’s gross negligence, willful misconduct or breach of fiduciary duty. Expenses incurred by any Covered Person in connection with the preparation and presentation of a defense or response to any Claims covered hereby shall be paid by the company on demand. Upon receipt by the company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person shall be entitled to be indemnified. The company shall pay the amounts described herein to the Covered Person (or to the parties making Claims against the Covered Person in satisfaction of their Claims) within 10 days after written demand therefor is delivered to the company by the Covered Person.
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Georgia Corporations
The Georgia Business Corporation Code (the “GBCC”) permits a corporation to indemnify a director or officer if the director or officer seeking indemnification acted in good faith and reasonably believed (i) in the case of conduct in his or her official capacity, that his or her action was in the best interest of the corporation, (ii) in all other cases, that his or her action was at least not opposed to the best interests of the corporation, and (iii) in the case of any criminal proceedings, that he or she had no reasonable cause to believe his or her conduct was unlawful, provided that indemnification in connection with a proceeding by or in the right of the corporation is limited to reasonable expenses incurred in connection with the proceeding. The GBCC prohibits indemnification of a director in connection with a proceeding by or in the right of the corporation (other than for reasonable expenses) if it is determined that the director has not met the relevant standard of conduct, or with respect to conduct for which he or she was adjudged liable on the basis that a personal benefit was improperly received by him or her, whether or not involving action in his or her official capacity. The GBCC additionally prohibits indemnification of an officer for liability arising in connection with appropriation of a business opportunity of the corporation, intentional or knowing violation of law, improper distributions or improper personal benefit.
Bylaws.
The bylaws of McClain International, Inc. provide that the corporation shall have the power to indemnify any person who was or is a party, or is threated to be made a party to any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) , by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation in such capacity of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. With respect to actions by or in the right of the corporation, the same indemnification provisions as stated above apply, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the court in which such action or suit was brough shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. Such indemnification under the bylaws of McClain International shall only be made as authorized in the specific case upon a determination by made by (a) the board of directors by a majority vote of quorum consisting of directors who were not parties to such action, suit or proceeding, or (b) if such quorum is not obtainable, or even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (c) by the shareholders.
Illinois Corporations
Section 8.75 of the Illinois Business Corporation Act (the “Illinois BCA”) provides generally and in pertinent parts that an Illinois corporation may indemnify its directors, officers, employees and agents, or anyone serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (in the case of actions by or in the right of the corporation) or against expenses, judgments, fines, and settlements (in all other cases) actually and reasonably incurred by them in connection with any action, suit, or proceeding if, in connection with the matters in issue, they acted in good faith and in a manner they reasonably believed to be in, or not opposed to, the best interests of the corporation and, in connection with any criminal suit or proceeding, if in connection with the matters in issue, they had no reasonable cause to believe their conduct was unlawful, provided that no indemnification shall be made with respect to any claim, issue, or matter as to which such person has been adjudged to have been liable to the corporation, unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, such person is fairly and reasonably entitled to indemnity. If a present or former director, officer or employee of an Illinois corporation has been successful in the defense of any such action, suit or proceeding, claim, issue or matter, such person shall be indemnified by the corporation against expenses if, in connection with the matters in issue, they acted in good faith and in a manner they reasonably believed to be in, or not opposed to, the best interests of the corporation.
Section 8.75 of the Illinois BCA further permits an Illinois corporation to pay expenses incurred by an officer or director in defending a civil or criminal action, suit or proceeding in advance of the final disposition of such action, suit or proceeding if the director or officer undertakes to repay such amount if it is ultimately determined that such person is not entitled to be indemnified by the corporation. An Illinois corporation may also grant additional indemnification through its by-laws, agreements, votes of shareholders or disinterested directors, or otherwise, and may purchase and maintain insurance on behalf of any indemnifiable person against any liability asserted against such person and incurred by such person in his or her capacity as an indemnifiable person whether or not the corporation would have the power to indemnify such person against liability under the terms of Section 8.75 of the Illinois BCA.
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Bylaws.
The bylaws of Conxall Corporation provide that the corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership; joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Iowa Corporations
Section 490.202 of the Iowa Business Corporation Act (the “Iowa BCA”) provides that a corporation’s articles of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its shareholders for monetary damages for any action taken, or failure to take action, as a director, provided that the provision does not eliminate or limit the liability of a director for: (1) the amount of a financial benefit received by a director to which the director is not entitled; (2) an intentional infliction of harm on the corporation or its shareholders; (3) an unlawful distribution made to shareholders; or (4) an intentional violation of criminal law. Further, Section 490.851 of the Iowa BCA provides that a corporation may indemnify its directors party to a proceeding against liability incurred in the proceeding by reason of such person serving in the capacity of director, subject to specified standards being met and subject to certain exclusions. In addition, Section 490.852 of the Iowa BCA provides mandatory indemnification of reasonable expenses incurred by a director who is wholly successful in defending any action in which the director was a party because the director is or was a director of the corporation. A director who is a party to a proceeding because the person is a director may also apply for court-ordered indemnification and advance of expenses under Section 490.854 of the Iowa BCA.
Section 490.853 of the Iowa BCA provides that a corporation may, before final disposition of a proceeding, advance funds to pay for or reimburse the reasonable expenses incurred by a director who is a party to a proceeding because he is a director if the director meets certain conditions.
Under Section 490.856 of the Iowa BCA, a corporation may indemnify and advance expenses to an officer of the corporation who is a party to a proceeding because he is an officer to the same extent as a director. In addition, if the person is an officer but not a director, further indemnification may be provided by the corporation’s articles of incorporation, the bylaws, a resolution of the board of directors or contract, subject to certain exclusions. Such indemnification is also available to an officer who is also a director if the basis on which the officer is made a party to a proceeding is an act or omission solely as an officer.
Articles of Incorporation.
The articles of incorporation of Midwest Microwave Solutions, Inc. provide that a director of the corporation shall not be liable to the corporation or its shareholders for money damages for any action taken, or any failure to take any action, as a director, except liability for any of the following: (i) the amount of a financial benefit received by a director to which the director is not entitled, (ii) an intentional infliction of harm on the corporation or its shareholders, (iii) a violation of Section 490.833 of the Iowa BCA, or (iv) an intentional violation of criminal law. Additionally, the articles of incorporation provide that if the Iowa BCA or Iowa law is amended to authorize further elimination or limitation of the liability of directors, then the liability of directors of the corporation shall be eliminated to the full extent authorized by the Iowa BCA or Iowa law, as amended.
The articles of incorporation of Midwest Microwave Solutions, Inc. also provide that the corporation shall, indemnify any individual who is or was a director of the corporation, or who, while a director or officer of the corporation, is or was serving, at the corporation’s request, as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other entity to the fullest extent permitted by applicable law, except liability for any of the following: (i) receipt of a financial benefit to which the person is not entitled, (ii) an intentional inflection of harm on the corporation or its shareholders, (iii) a violation of Section 490.833 of the Iowa BCA, or (iv) an intentional violation of criminal law.
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Bylaws.
The bylaws of Midwest Microwave Solutions, Inc. provide that, unless otherwise limited by the articles of incorporation or by written agreement signed by the director and the corporation, the corporation shall indemnify each director and officer to the fullest extent allowed by law, and the corporation may advance expenses as provided for by the Iowa BCA. Further, the bylaws provide that the right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition shall not be exclusive of any other right which any person may have or acquire. Additionally, the bylaws provide that to the extent any director, officer, employee or agent of the corporation is by reason of such position, or a position with another entity at the request of the corporation, a witness in any proceeding, he or she shall be reimbursed for all costs and expenses actually and reasonably incurred by him or her or on his or her behalf in connection therewith. The bylaws provide that the corporation’s obligation to provide indemnification to a director, officer, employee or agent who is or was serving at the request of the corporation as a director, officer, trustee, member, manager, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust or other enterprise, including service with respect to employee benefit plans, shall be secondary to any indemnification obligation of such other entity to such person.
Maryland Limited Liability Companies
Section 203 of the Maryland Limited Liability Company Act provides that, unless otherwise provided by law or its articles of organization, a limited liability company has the general powers, whether or not set forth in its articles of organization, to indemnify and hold harmless any member, agent, or employee from and against any and all claims and demands, except in the case of action or failure to act by the member, agent, or employee which constitutes willful misconduct or recklessness, and subject to the standards and restrictions, if any, set forth in the articles of organization or operating agreement.
Operating Agreements.
The operating agreements of Breidon, LLC, Ridge Engineering, LLC, and The Bechdon Company, LLC provide that, to the fullest extent permitted under the Maryland Limited Liability Company Act, the member (irrespective of the capacity in which it acts) and the manager shall be entitled to indemnification and advancement of expenses from the company for and against any loss, damage, claim or expense (including attorneys’ fees) whatsoever incurred by such person relating to or arising out of any act or omission or alleged acts or omissions (whether or not constituting negligence or gross negligence) performed or omitted by such person on behalf of the company; provided, however, that any indemnity shall be provided out of and to the extent of company assets only, and neither the member, manager, nor any other person shall have any personal liability on account thereof.
The operating agreement of Transformational Security, LLC provides that the company shall indemnify and hold harmless the managers, the member, any additional member, or any other officer or employee of the company from and against any and all losses, obligations, liabilities, damages, claims, deficiencies, costs and expenses which may be asserted against or sustained or incurred by a manager, the member, any additional member, or any other officer or employee of the company by reason of any act performed or omitted to be performed by such person in connection with the company’s business or the operating agreement, including reasonable attorneys’ fees incurred by such person in connection with the defense of any claim or action based on any such act or omission, except to the extent such indemnification is prohibited by law; provided, however, that the managers, the member, any additional member, or any other officer or employee of the company shall not be entitled to any indemnification in respect of any loss, damage or claim incurred by reason of such party’s gross negligence or willful misconduct.
Massachusetts Corporations
Section 8.51 of the Massachusetts Business Corporation Act (the “Massachusetts BCA”) authorizes a Massachusetts corporation to indemnify a director of the corporation against liability in such capacity if the director (i) conducted himself in good faith, (ii) reasonably believed his conduct was in, or at least not opposed to, the best interests of the corporation, and (iii) in the case of a criminal proceeding, had no reasonable cause to believe his conduct was unlawful. Section 8.51 of the Massachusetts BCA also allows for indemnification of a director if the liability in question was eliminated by the corporation’s articles of organization pursuant to Section 2.02(b)(4) of the Massachusetts BCA.
Section 8.52 of the Massachusetts BCA requires that a Massachusetts corporation indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which such director was a party because he was a director of the corporation.
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Section 8.53 of the Massachusetts BCA authorizes a Massachusetts corporation to pay for, in advance, a director’s reasonable expenses in a proceeding if, among other things, the director delivers to the corporation (i) a written affirmation of his good faith belief that he has met the relevant standard of conduct for indemnification under Section 8.51 of the Massachusetts BCA or the proceeding involves conduct for which liability has been eliminated under the corporation’s articles of organization as permitted by Section 2.02(b)(4) of the Massachusetts BCA, and (ii) a written undertaking to repay any funds advanced if he is not entitled to mandatory indemnification under Section 8.52 of the Massachusetts BCA and it is ultimately determined, pursuant to procedures further laid out in the Massachusetts BCA, that he has not met the standard of conduct for indemnification under Section 8.51 of the Massachusetts BCA.
Section 8.56 of the Massachusetts BCA authorizes a corporation to indemnify, and advance expenses to, an officer of the corporation to the same extent as a director, and if such officer is not a director of the corporation, or if such officer is also a director but the basis on which he is made a party to the proceeding is an act or omission solely as an officer, to such further extent as may be provided in the corporation’s articles of organization, the corporation’s bylaws, a resolution of the corporation’s board of directors or a contract, provided that the officer may not be indemnified Massachusetts BCA acts or omissions not in good faith, intentional misconduct or knowing violation of law. Section 8.56 of the Massachusetts BCA requires that a Massachusetts corporation indemnify an officer of the corporation who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which such officer was a party because he was an officer of the corporation.
Section 2.02(b)(4) of Chapter 156D of the Massachusetts General Laws provides that the articles of organization of a corporation may include a provision eliminating or limiting the personal liability of a director to the corporation for monetary damages for breach of fiduciary duty as a director, provided, however, that such provision shall not eliminate or limit the liability of a director (a) for any breach of the director’s duty of loyalty to the corporation or its shareholders, (b) for acts or omission not in good faith or which involve intentional misconduct or a knowing violation of law, (c) for improper distributions to shareholders, or (d) for any transaction from which the director derived an improper personal benefit. The registrant has included such a provision in its articles of organization.
Bylaws.
The bylaws of Dielectric Sciences, Inc. provide that the corporation may indemnify each person who is or was a director, officer, or employee of the corporation, or of any other corporation which he served as such at the request of the corporation against any and all liability and reasonable expense that may be incurred by him in connection with, or resulting from, any claim, action, suit, or proceeding (whether brought by or in the name of the corporation or such other corporation or otherwise), civil or criminal, or in connection with an appeal relating thereto, in which he may become involved, as a party or otherwise, by reason of his being or having been a director, officer, or employee of the corporation or of such other corporation, or by reason of any past or future action taken in his capacity as such director, officer or employee, whether or not he continues to be such at the time such liability or expense is incurred, provided such person acted in good faith in what he reasonably believed to be the best interest of the corporation or such other corporation, as the case may be, and pro-vided also that in any criminal action or proceeding he had no reasonable cause to believe that his conduct was unlawful. No indemnification shall be provided for any person with respect to any matter as to which he shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interests of the corporation.
Minnesota Corporations
Section 302A.521 of the Minnesota Business Corporation Act (the “Minnesota BCA”) provides in substance that, unless prohibited by its articles of incorporation or by-laws, a corporation must indemnify a person, including an officer or director, who is made or threatened to be made a party to a proceeding by reason of the former or present official capacity of the person against judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys’ fees and disbursements (collectively, the “Expenses”), incurred by such person in connection with the proceeding, if certain criteria are met. These criteria (collectively, the “Indemnification Criteria”), all of which must be met by the person seeking indemnification, are essentially that (a) such person has not been indemnified by another organization or employee benefit plan for the same Expenses, incurred by the person in connection with the proceeding with respect to the same acts or omissions; (b) such person must have acted in good faith; (c) no improper personal benefit was obtained by such person and such person satisfied certain statutory conflicts of interest provisions, if applicable; (d) in the case of a criminal proceeding, such person had no reasonable cause to believe that the conduct was unlawful; and (e) in the case of acts or omissions occurring in such person’s performance in an official capacity, such person must have acted in a manner such person reasonably believed was in the best interests of the corporation or, in certain limited circumstances, not opposed to the best interests of the corporation. In addition, Section 302A.521, Subdivision 3 of the Minnesota BCA requires payment by a corporation, upon written request, of reasonable expenses in advance of final disposition in certain instances. A decision as to required indemnification is made by a majority of the disinterested board of directors present at a meeting at which a disinterested quorum is present, or by a designated committee of disinterested directors, by special legal counsel, by the disinterested shareholders, or by a court.
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Articles of Incorporation.
The articles of incorporation of Ironwood Electronics, Inc. provide that a director of the corporation shall not be held personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director unless the breach involves (i) a director’s duty of loyalty to the corporation or its shareholders, (ii) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 302A.559 or 80A.23 of Minnesota Statutes, (iv) any transaction from which the director derived any improper personal benefit, or (v) any act or omission occurring prior to the effective date of such Article in the articles of incorporation.
Nevada Corporations
Nevada Revised Statutes 78.7502 provides that a corporation may indemnify any person who was, is, or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (except an action by or in the right of the corporation), by reason of the person’s being or having been a director, officer, employee or agent of the corporation or serving or having served at the request of the corporation in certain capacities with respect to another corporation or entity. The person to be indemnified (1) must not be liable for the breach of any fiduciary duties as a director, officer, employee or agent of the corporation involving intentional misconduct, fraud or a knowing violation of law and (2) must have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action, such person must have had no reasonable cause to believe his or her conduct was unlawful. With respect to actions by or in the right of the corporation, indemnification may not be made for any claim, issue or matter as to which such a person has been finally adjudged by a court of competent jurisdiction to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action was brought or other court of competent jurisdiction determines upon application that in view of all the circumstances the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper. Nevada Revised Statutes 78.752 provides that a corporation may purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director, officer, employee or agent of the corporation (or is or was serving at the request of the corporation in a similar capacity at another entity) for any liability asserted against the person and liability and expenses incurred by the person in his or her capacity as a director, officer, employee or agent, or arising out of his or her status as such, whether or not the corporation has the authority to indemnify such a person against such liability and expenses.
Bylaws.
The bylaws of Sensor Systems, Inc. provide that it shall, to the fullest extent permitted or authorized by current or future legislation or current or future judicial or administrative decisions, indemnify each person (including the heirs, executors, administrators and estate of the person) who was or is a party, or is threatened to be made a party, or was or is a witness, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and any appeal therefrom, against all liability (which includes all judgments, settlements, penalties and fines) and costs, charges and expenses (including attorneys’ fees) asserted against him or incurred by him by reason of the fact that the person is or was a director or officer or employee of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including serving as a fiduciary of an employee benefit plan). The corporation shall indemnify a person entitled to such indemnification described above in connection with a proceeding initiated by an indemnified person only if authorization for such proceeding was not denied by the board of directors of the corporation within 60 days after receipt of notice thereof from the indemnified person. Further, the bylaws provide that costs, charges and expenses (including reasonable attorneys’ fees) incurred by such indemnified person shall be paid by the corporation to the fullest extent permitted by law in advance of the final disposition of the proceeding, upon receipt of an undertaking reasonably satisfactory to the board of directors by or on behalf of the indemnified person to repay all amounts so advanced if it ultimately is determined that such person is not entitled to be indemnified by the corporation as authorized by such bylaws.
New Hampshire Corporations
Section 293-A:8.51 of the New Hampshire Business Corporation Act (the “NHBCA”) provides that a corporation may indemnify an individual made a party to a proceeding because he is or was a director, against liability incurred in the proceeding if: (1) the director conducted himself in good faith; (2) the director reasonably believed in the case of conduct in his official capacity with the corporation, that his conduct was in its best interests and, in all other cases, that his conduct was at least not opposed to its best interests; and (3) in the case of any criminal proceeding, the director had no reasonable cause to believe his conduct was unlawful. Under Section 293-A:8.51, a corporation may not indemnify a director in connection with (i) a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or (ii) any other proceeding charging improper personal benefit to such director, whether or not involving action in official capacity, in which such director was adjudged liable on the basis that personal benefit was improperly received by such director. In addition, the NHBCA limits indemnification in connection with a proceeding by or in the right of the corporation to reasonable expenses incurred in connection with such proceeding. Section 293-A:8.52 of the NHBCA mandates that, unless limited by its articles of incorporation, a corporation indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which such director was a party because he is or was a director of the corporation against reasonable expenses incurred by such director in connection with the proceeding.
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Section 293-A:8.56 of the NHBCA provides for indemnification of officers who are not directors to the same extent as to directors, unless otherwise provided in the articles of incorporation.
Bylaws.
The bylaws of R.H. Laboratories, Inc. provide that it shall, to the fullest extent permitted or authorized by current or future legislation or current or future judicial or administrative decisions, indemnify each person (including the heirs, executors, administrators and estate of the person) who was or is a party, or is threatened to be made a party, or was or is a witness, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and any appeal therefrom, against all liability (which includes all judgments, settlements, penalties and fines) and costs, charges and expenses (including attorneys’ fees) asserted against him or incurred by him by reason of the fact that the person is or was a director or officer or employee of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including serving as a fiduciary of an employee benefit plan). The corporation shall indemnify a person entitled to such indemnification described above in connection with a proceeding initiated by an indemnified person only if authorization for such proceeding was not denied by the board of directors of the corporation within 60 days after receipt of notice thereof from the indemnified person. Further, the bylaws provide that costs, charges and expenses (including reasonable attorneys’ fees) incurred by such indemnified person shall be paid by the corporation to the fullest extent permitted by law in advance of the final disposition of the proceeding, upon receipt of an undertaking reasonably satisfactory to the board of directors by or on behalf of the indemnified person to repay all amounts so advanced if it ultimately is determined that such person is not entitled to be indemnified by the corporation as authorized by such bylaws.
New York Corporations
Section 721 of the New York Business Corporation Law (the “NYBCL”) provides that a corporation may indemnify a director or officer by a provision contained in the certificate of incorporation or bylaws or, if authorized in such certificate of incorporation or bylaws, by a duly authorized resolution of its shareholders or directors or by agreement, provided that no indemnification may be made to or on behalf of any director or officer if a judgment or other final adjudication adverse to the director or officer establishes that his acts were committed in bad faith or were the result of active and deliberate dishonesty and material to the cause of action, or that such director or officer personally gained in fact a financial profit or other advantage to which he was not legally entitled.
Section 722 of the NYBCL provides that a corporation may, except for shareholder derivative suits, indemnify its directors and officers made, or threatened to be made, a party to any action or proceeding, if the director or officer acted in good faith, for a purpose that he or she reasonably believed to be in or, in the case of service to another corporation or enterprise, not opposed to the best interests of the corporation, and, in criminal proceedings, had no reasonable cause to believe his or her conduct was unlawful. In the case of shareholder derivative suits, the corporation may indemnify a director or officer if he or she acted in good faith for a purpose that he or she reasonably believed to be in or, in the case of service to another corporation or enterprise, not opposed to the best interests of the corporation, except that no indemnification may be made in respect of (i) a threatened action, or a pending action that is settled or otherwise disposed of, or (ii) any claim, issue or matter as to which such individual has been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any court of competent jurisdiction, determines, upon application, that, in view of all the circumstances of the case, the individual is fairly and reasonably entitled to indemnity for the portion of the settlement amount and expenses as the court deems proper.
Section 723 of the NYBCL provides, in general, that any individual who has been successful on the merits or otherwise in the defense of a civil or criminal action or proceeding will be entitled to indemnification. Except as provided in the preceding sentence, unless ordered by a court pursuant to Section 724 of the NYBCL, any indemnification under the NYBCL may be made only if indemnification is authorized in the specific case and after a finding that the director or officer met the requisite standard of conduct by the disinterested directors if a quorum is available, or, if the quorum so directs or is unavailable, (i) the board of directors upon the written opinion of independent legal counsel or (ii) the shareholders.
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Section 402(b) of the NYBCL permits corporations to eliminate or limit the personal liability of directors to the corporation or its shareholders for damages for any breach of duty in such capacity except liability of a director (i) whose acts or omissions were in bad faith, involved intentional misconduct or a knowing violation of law, (ii) who personally gained in fact a financial profit or other advantage to which he or she was not legally entitled or (iii) whose acts violated Section 719 of the NYBCL.
Articles of Incorporation.
The articles of incorporation of Solid Sealing Technology Inc. provide that no director of the corporation shall be personally liable to the corporation or its stockholders for damages for any breach of fiduciary duty in such capacity except where a judgment or other final adjudication adverse to said director establishes: that the director’s acts or omissions were in bad faith or involved intentional misconduct or knowing violation of law, or that said director personally gained a financial profit or other advantage to which he was not entitled, or the director’s acts violated Section 719 of the NYBCL.
Bylaws
The bylaws of Solid Sealing Technology Inc. and Specialty Silicone Products, Inc. provide that any person made or threatened to be made a party to an action or proceeding, whether civil or criminal, by reason of the fact that he, his testator or intestate, then, is, or was a director or officer of the corporation, or then serves or has served on behalf of the corporation in such capacity at the request of the corporation, shall be indemnified by the corporation against reasonable expenses, judgments, fines and amounts actually and necessarily incurred in connection with the defense of such action or proceeding or in connection with an appeal therein, to the fullest extent permissible by the laws of the State of New York. The bylaws further provide that such right of indemnification shall not be deemed exclusive of any other rights to which such person may be entitled.
Ohio Corporations
Pursuant to section 1701.13(E) of the Ohio Revised Code (the “ORC”), Ohio corporations are authorized to indemnify directors, officers, employees and agents within prescribed limits and must indemnify them under certain circumstances. The ORC does not provide statutory authorization for a corporation to indemnify directors, officers, employees and agents for settlements, fines or judgments in the context of derivative suits. However, it provides that directors (but not officers, employees or agents) are entitled to mandatory advancement of expenses, including attorneys’ fees, incurred in defending any action, including derivative actions, brought against the director, provided that the director agrees to cooperate with the corporation concerning the matter and to repay the amount advanced if it is proved by clear and convincing evidence that the director’s act or failure to act was done with deliberate intent to cause injury to the corporation or with reckless disregard for the corporation’s best interests.
The ORC does not authorize indemnification to a director, officer, employee or agent after a finding of negligence or misconduct in a derivative suit absent a court order. Indemnification is permitted, however, to the extent such person succeeds on the merits. In all other cases, if a director, officer, employee or agent acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, indemnification is discretionary except as otherwise provided by a corporation’s articles of incorporation, code of regulations or by contract except with respect to the advancement of expenses of directors.
Under the ORC, a director is not liable for monetary damages unless it is proved by clear and convincing evidence that his or her action or failure to act was undertaken with deliberate intent to cause injury to the corporation or with reckless disregard for the best interests of the corporation. There is, however, no comparable provision limiting the liability of officers, employees or agents of a corporation. The statutory right to indemnification is not exclusive in Ohio, and Ohio corporations may, among other things, procure insurance for such persons.
Bylaws.
The bylaws of Accurate Metal Machining, Inc. provide that it shall, to the fullest extent permitted or authorized by current or future legislation or current or future judicial or administrative decisions, indemnify each person (including the heirs, executors, administrators and estate of the person) who was or is a party, or is threatened to be made a party, or was or is a witness, to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and any appeal therefrom, against all liability (which includes all judgments, settlements, penalties and fines) and costs, charges and expenses (including attorneys’ fees) asserted against him or incurred by him by reason of the fact that the person is or was a director or officer or employee of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including serving as a fiduciary of an employee benefit plan). The corporation shall indemnify a person entitled to such indemnification described above in connection with a proceeding initiated by an indemnified person only if authorization for such proceeding was not denied by the board of directors of the corporation within 60 days after receipt of notice thereof from the indemnified person. Further, the bylaws provide that costs, charges and expenses (including reasonable attorneys’ fees) incurred by such indemnified person shall be paid by the corporation to the fullest extent permitted by law in advance of the final disposition of the proceeding, upon receipt of an undertaking reasonably satisfactory to the board of directors by or on behalf of the indemnified person to repay all amounts so advanced if it ultimately is determined that such person is not entitled to be indemnified by the corporation as authorized by such bylaws.
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The bylaws of Inertial Airline Services, Inc. provide that the corporation shall indemnify and reimburse any person who is or has been a director, officer, or employee of the corporation for expenses (including attorneys’ fees), judgments, decrees, fines, penalties or settlements incurred or paid in connection with the defense of any threatened or pending investigation, action, suit or proceeding, criminal, civil or administrative, to which he or she is or may be made a party by reason of being or having been such director, officer or employee, provided that such individual: (1) is adjudicated or determined not to have been negligent or guilty of misconduct in the performance of his or her duty to the corporation; (2) is determined to have acted in good faith in what he or she reasonably believed to be the best interests of the corporation; and (3) in any matter the subject of a criminal action, suit or proceeding, is determined to have had no reasonable cause to believe that his or her conduct was unlawful.
Oregon Corporations
Section 60.394 of the Oregon Business Corporation Act (the “OBCA”) provides that unless limited by its articles of incorporation, a corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because of being a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding. Section 60.407 of the OBCA provides that unless limited by its articles of incorporation an officer of the corporation is entitled to the same mandatory indemnification under Section 60.394 as a director.
Section 60.391 of the OBCA authorizes a corporation to indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if: (a) the conduct of the individual was in good faith; (b) the individual reasonably believed that the individual’s conduct was in the best interests of the corporation, or at least not opposed to its best interests; and (c) in the case of any criminal proceeding, the individual had no reasonable cause to believe the individual’s conduct was unlawful. Indemnification is not permitted under Section 60.391 (i) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation or (ii) in connection with any other proceeding charging improper personal benefit to the director in which the director was adjudged liable on the basis that personal benefit was improperly received by the director.
In addition, Section 60.411 of the OBCA provides that a corporation (i) may purchase and maintain insurance on behalf of an individual against liability asserted against or incurred by the individual who is or was a director, officer, employee or agent of the corporation or who, while a director, officer, employee or agent of the corporation, is or was serving at the request of the corporation as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan or other enterprise and (ii) may purchase and maintain the insurance even if the corporation has no power to indemnify the individual against the same liability under Section 60.391 or Section 60.394.
Articles of Incorporation
The articles of incorporation of Engineering Design Team, Inc. provide that, to the fullest extent permitted by the OBCA, it shall indemnify any person who has been made, or is threated to be made, a party to an action, suit or proceeding, whether civil, criminal, administrative, investigative or otherwise (including any action, suit or proceeding by or in the right of the corporation), by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or a fiduciary within the meaning of the Employee Retirement Income Security Act of 1974 with respect to an employee benefit plan of the corporation, or serves or served at the request of the corporation as a director, or as an officer, or as a fiduciary of an employee benefit plan, of another corporation, partnership, joint venture, trust or other enterprise. Such articles of incorporation further provide that, to the fullest extent permitted by the OBCA, no director shall be held personally liable to the corporation or its shareholders for monetary damages for conduct as a director.
Bylaws
The bylaws of Engineering Design Team, Inc. provide the corporation shall indemnify to the fullest extent permitted by the OBCA any person who has been made, or threatened to be made, a party to an action, suit or proceeding, whether civil, criminal, administrative, investigative or otherwise (including an action, suit or proceeding by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or a fiduciary within the meaning of the Employee Retirement Income Security Act of 1974 with respect to any employee benefit plan of the corporation, or serves or served at the request of the corporation as a director or officer, or as a fiduciary of any employee benefit plan, of another corporation, partnership, joint venture, trust or other enterprise. The bylaws further provide that, to the fullest extent permitted by the OBCA, the corporation shall pay for or reimburse any and all reasonable expenses incurred by a director who is a party to a proceeding in advance of the final disposition of the proceeding. The right to indemnification and to the payment or reimbursement of expenses with respect to a proceeding shall not be exclusive of any other rights to which any person may be entitled to or acquire.
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Oregon Limited Liability Companies
Section 63.160 of the Oregon Limited Liability Company Act provides that the articles of organization or operating agreement may provide for indemnification of any person for any acts or omissions as a member, manager, employee or agent and may eliminate or limit liability of a member, manager, employee or agent to the limited liability company or its member for damages from such acts or omissions; provided, that indemnification is not permitted for (i) any act or omission occurring prior to the date such provision became effective or (ii) any breach of the duty of loyalty, acts or omissions not in good faith which involve intentional misconduct or knowing violation of the law, any unlawful distribution or any transaction from which the member or manager derives an improper personal benefit.
Operating Agreements.
The operating agreement of Decavo LLC provides that each member or employee, agent, shareholder, partner, member or manager of a member and their respective officers, directors, agents and employees and each manager (“Indemnified Person”) who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (“Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that the Indemnified Person is or was a member or serving as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another entity that is or was a member or a manager shall be indemnified by the company against judgments, penalties (including excise and similar taxes and punitive damages), fines, settlements and reasonable costs and expenses (including, without limitation, attorneys’ fees) actually incurred by such Indemnified Person in connection with such Proceeding if such Indemnified Person acted in good faith and in a manner he, she, or it reasonably believed to be in, or not opposed to, the best interest of the company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his, her or its conduct was unlawful, provided, however, that in no event shall the company be liable for indemnification for any loss, liability, cost or expense to the extent such loss, liability, cost or expense arises out of or is in connection with any acts expressly prohibited by the Oregon Limited Liability Company Act or is the result of gross negligence, fraud or intentional misconduct by such Person. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person did not act in good faith and in a manner which he, she or it reasonably believed to be in or not opposed to the best interests of the company or, with respect to any criminal action or proceeding, that the Indemnified Person had reasonable cause to believe that his, her or its conduct was unlawful.
Tennessee Corporations
The Tennessee Business Corporation Act (“TBCA”) allows a Tennessee corporation’s charter to contain a provision eliminating or limiting, with certain exceptions, the personal liability of a director to the corporation or its shareholders for monetary damages for breach of the director’s fiduciary duty as a director. Under the TBCA, a Tennessee business corporation may not eliminate or limit director monetary liability for (i) breaches of the director’s duty of loyalty to the corporation or its shareholders; (ii) acts or omissions not in good faith or involving intentional misconduct or a knowing violation of law; or (iii) unlawful dividends. This provision also may not limit a director’s liability for violation of, or otherwise relieve a corporation or its directors from the necessity of complying with, federal or state securities laws, or affect the availability of non-monetary remedies such as injunctive relief or rescission.
The TBCA provides that a corporation may indemnify any of its directors, officers, employees and agents against liability incurred in connection with a proceeding if (a) such person acted in good faith; (b) in the case of conduct in an official capacity with the corporation, he or she reasonably believed such conduct was in the corporation’s best interests; (c) in all other cases, he or she reasonably believed that his or her conduct was at least not opposed to the best interests of the corporation; and (d) in connection with any criminal proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. In actions brought by or in the right of the corporation, however, the TBCA provides that no indemnification may be made if the director or officer was adjudged to be liable to the corporation. The TBCA also provides that in connection with any proceeding charging improper personal benefit to an officer or director, no indemnification may be made if such officer or director is adjudged liable on the basis that such personal benefit was improperly received. In cases where the director or officer is wholly successful, on the merits or otherwise, in the defense of any proceeding instigated because of his or her status as a director or officer of a corporation, the TBCA mandates that the corporation indemnify the director or officer against reasonable expenses incurred in the proceeding. The TBCA provides that a court of competent jurisdiction, unless the corporation’s charter provides otherwise, upon application, may order that an officer or director be indemnified for reasonable expenses if, in consideration of all relevant circumstances, the court determines that such individual is fairly and reasonably entitled to indemnification, notwithstanding the fact that (a) such officer or director was adjudged liable to the corporation in a proceeding by or in the right of the corporation; (b) such officer or director was adjudged liable on the basis that personal benefit was improperly received by him or her; or (c) such officer or director breached his or her duty of care to the corporation.
II-21
Tennessee Limited Liability Companies
Section 48-249-115(b) of the Tennessee Revised Limited Liability Company Act (the “TLLCA”) provides that a limited liability company may indemnify an individual made a party to a proceeding because such individual is or was a responsible person against liability incurred in the proceeding if the individual (i) acted in good faith, (ii) reasonably believed that such individual’s conduct in such individual’s official capacity was in the company’s best interest and, in all other cases, that such individual’s conduct was at least not opposed to the company’s best interests and (iii) in a criminal proceeding, had no reasonable cause to believe such individual’s conduct was unlawful. Section 48-249-115(b) of the TLLCA also provides that unless ordered by a court of competent jurisdiction, a limited liability company may not indemnify a responsible person in connection with a proceeding by the company in which the responsible person was adjudged liable to the company or in connection with any other proceeding in which such responsible person was adjudged liable to the company for receiving an improper personal benefit. Section 48-249-115(c) of the TLLCA provides that a limited liability company shall indemnify a responsible person who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the person was a party, because the person is or was a responsible person, against reasonable expenses incurred by the person in connection with the proceeding. Section 48-249-115(i) of the TLLCA prohibits indemnification to a responsible person if a judgment or other final adjudication adverse to the responsible person or officer establishes such person’s liability for (i) any breach of the duty of loyalty to the limited liability company or its members, (ii) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law or (iii) unlawful distributions.
Operating Agreements.
The operating agreement of Decavo LLC provides that each member or employee, agent, shareholder, partner, member or manager of a member and their respective officers, directors, agents and employees and each manager (“Indemnified Person”) who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (“Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that the Indemnified Person is or was a member or serving as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another entity that is or was a member or a manager shall be indemnified by the company against judgments, penalties (including excise and similar taxes and punitive damages), fines, settlements and reasonable costs and expenses (including, without limitation, attorneys’ fees) actually incurred by such Indemnified Person in connection with such Proceeding if such Indemnified Person acted in good faith and in a manner he, she, or it reasonably believed to be in, or not opposed to, the best interest of the company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his, her or its conduct was unlawful, provided, however, that in no event shall the company be liable for indemnification for any loss, liability, cost or expense to the extent such loss, liability, cost or expense arises out of or is in connection with any acts expressly prohibited by the TLLCA or is the result of gross negligence, fraud or intentional misconduct by such Person. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnified Person did not act in good faith and in a manner which he, she or it reasonably believed to be in or not opposed to the best interests of the company or, with respect to any criminal action or proceeding, that the Indemnified Person had reasonable cause to believe that his, her or its conduct was unlawful.
II-22
Item 16. Exhibits.
| * | 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. |
II-23
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
| (a)(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 the 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 the 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 this registration statement or any material change to such information in the registration statement; |
Provided, however, that:
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, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. 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 first use, 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 date of first use. |
| (b) | 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 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 and will be governed by the final adjudication of such issue. |
II-24
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 July 17, 2023.
| HEICO CORPORATION | ||
| By: | /s/ Carlos L. Macau, Jr. | |
| Carlos L. Macau, Jr. | ||
| Executive Vice President — Chief Financial Officer and Treasurer | ||
| (Principal Financial Officer) | ||
| By: | /s/ Steven M. Walker | |
| Steven M. Walker | ||
| Chief Accounting Officer and Assistant Treasurer | ||
| (Principal Accounting Officer) |
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Carlos L. Macau, Jr. 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.
Signature |
Title |
Date | ||
| /s/ Laurans A. Mendelson | Chairman of the Board; Chief Executive Officer; and Director | July 17, 2023 | ||
| Laurans A. Mendelson | (Principal Executive Officer) | |||
| /s/ Carlos L. Macau, Jr. | Executive Vice President — Chief Financial Officer and Treasurer | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Financial Officer) | |||
| /s/ Steven M. Walker | Chief Accounting Officer and Assistant Treasurer | July 17, 2023 | ||
| Steven M. Walker | (Principal Accounting Officer) | |||
| /s/ Thomas M. Culligan | Director | July 17, 2023 | ||
| Thomas M. Culligan | ||||
| /s/ Carol F. Fine | Director | July 17, 2023 | ||
| Carol F. Fine | ||||
| /s/ Adolfo Henriques | Director | July 17, 2023 | ||
| Adolfo Henriques | ||||
| /s/ Mark H. Hildebrandt | Director | July 17, 2023 | ||
| Mark H. Hildebrandt | ||||
| /s/ Eric A. Mendelson | Co-President and Director | July 17, 2023 | ||
| Eric A. Mendelson | ||||
| /s/ Victor H. Mendelson | Co-President and Director | July 17, 2023 | ||
| Victor H. Mendelson | ||||
| /s/ Julie Neitzel | Director | July 17, 2023 | ||
| Julie Neitzel | ||||
| /s/ Alan Schriesheim | Director | July 17, 2023 | ||
| Alan Schriesheim | ||||
| /s/ Frank J. Schwitter | Director | July 17, 2023 | ||
| Frank J. Schwitter |
II-25
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| 16-1741 PROPERTY, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Victor Mendelson | Co-President | July 17, 2023 | ||
| Victor Mendelson | (Principal Executive Officer) | |||
| /s/ Eric A. Mendelson | Co-President | July 17, 2023 | ||
| Eric A. Mendelson | (Principal Executive Officer) | |||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Financial and Accounting Officer) |
II-26
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| 26 WARD HILL PROPERTY, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager |
July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-27
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| 3 MCCREA PROPERTY COMPANY, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 |
II-28
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| 34 FREEDOM COURT, CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-29
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| 3D PLUS U.S.A., INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-30
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| 60 SEQUIN LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-31
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| 8929 FULLBRIGHT PROPERTY, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-32
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| ACCURATE METAL MACHINING, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
| /s/ Clarence Hightower | Director | July 17, 2023 | ||
| Clarence Hightower | ||||
| /s/ John Racic | Director | July 17, 2023 | ||
| John Racic | ||||
II-33
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| ACTION RESEARCH CORPORATION | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
/s/ Eric A. Mendelson Eric A. Mendelson |
Director | July 17, 2023 | ||
/s/ Luis J. Morell Luis J. Morell |
Director | July 17, 2023 | ||
/s/ Chad Putnam Chad Putnam |
Director | July 17, 2023 | ||
/s/ Gregory Braselton Gregory Braselton |
Director | July 17, 2023 | ||
II-34
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| AEROANTENNA TECHNOLOGY, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Assistant Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Assistant Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Assistant Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-35
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| AERODESIGN, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-36
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| AEROELT, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-37
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| AEROSPACE & COMMERCIAL TECHNOLOGIES, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
|
/s/ Val R. Shelley Val R. Shelley |
Manager | July 17, 2023 | ||
|
/s/ Deborah Brown Deborah Brown |
Manager | July 17, 2023 | ||
II-38
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| AIRCRAFT TECHNOLOGY, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-39
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| ANALOG MODULES, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-40
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| APEX HOLDING CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
|
/s/ Victor H. Mendelson Victor H. Mendelson |
Director | July 17, 2023 | ||
|
/s/ Greg Brennan Greg Brennan |
Director | July 17, 2023 | ||
II-41
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| APEX MICROTECHNOLOGY, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-42
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| ASTRO PROPERTY, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-43
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| ASTROSEAL PRODUCTS MFG. CORPORATION | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-44
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| BAY EQUIPMENT CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Victor Mendelson Victor Mendelson |
President (Principal Executive Officer) |
July 17, 2023 | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Financial and Accounting Officer) |
July 17, 2023 | ||
II-45
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| BLUE AEROSPACE LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-46
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| BREIDON, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-47
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| CAMTRONICS, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
/s/ Luis J. Morell Luis J. Morell |
Manager |
July 17, 2023 | ||
/s/ David Campbell David Campbell |
Manager |
July 17, 2023 | ||
/s/ Andrew J. Feeley Andrew J. Feeley |
Manager |
July 17, 2023 | ||
/s/ Richard Munsie Richard Munsie |
Manager | July 17, 2023 | ||
II-48
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| CARBON BY DESIGN CORPORATION | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-49
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| CARBON BY DESIGN LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-50
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| CHARTER ENGINEERING, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
/s/ Mike England Mike England |
Director | July 17, 2023 | ||
II-51
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| CONNECTRONICS CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-52
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| CONXALL CORPORATION | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-53
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| CSI AEROSPACE, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
/s/ Eric A. Mendelson Eric A. Mendelson |
Director | July 17, 2023 | ||
/s/ Andrew J. Feeley Andrew J. Feeley |
Director | July 17, 2023 | ||
II-54
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| DB CONTROL CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-55
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| DECAVO LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
/s/ Clarence Hightower Clarence Hightower |
Manager |
July 17, 2023 | ||
/s/ Phillip Daniel Nies Phillip Daniel Nies |
Manager | July 17, 2023 | ||
II-56
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| DIELECTRIC SCIENCES, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-57
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| DUKANE SEACOM, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-58
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| ENGINEERING DESIGN TEAM, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
/s/ Cameron Kidd Cameron Kidd |
Director | July 17, 2023 | ||
II-59
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| FLIGHT MICROWAVE CORPORATION | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-60
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| FUTURE AVIATION, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-61
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HARTER AEROSPACE, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
/s/ Eric A. Mendelson Eric A. Mendelson |
Manager | July 17, 2023 | ||
/s/ Luis J. Morell Luis J. Morell |
Manager |
July 17, 2023 | ||
/s/ William Hinski William Hinski |
Manager | July 17, 2023 | ||
/s/ Glenn Kollett Glenn Kollett |
Manager | July 17, 2023 | ||
II-62
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HEICO AEROSPACE CORPORATION | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-63
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
HEICO AEROSPACE HOLDINGS CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Chief Financial Officer and | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Chief Financial Officer and Executive Vice President, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
|
/s/ Laurans A. Mendelson Laurans A. Mendelson |
Chairman of the Board | July 17, 2023 | ||
|
/s/ Eric A. Mendelson Eric A. Mendelson |
President and Chief Executive Officer (Principal Executive Officer) |
July 17, 2023 | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Chief Financial Officer, Executive Vice President and Director (Principal Financial and Accounting Officer) |
July 17, 2023 | ||
/s/ Victor H. Mendelson Victor H. Mendelson |
Director | July 17, 2023 | ||
/s/ Val R. Shelley Val R. Shelley |
Director | July 17, 2023 | ||
/s/ Luis J. Morell Luis J. Morell |
Director | July 17, 2023 | ||
/s/ Soeren Stark Soeren Stark |
Director | July 17, 2023 | ||
/s/ Georg Fanta Georg Fanta |
Director | July 17, 2023 | ||
II-64
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HEICO AEROSPACE PARTS CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-65
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HEICO EAST CORPORATION | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
|
/s/ Eric A. Mendelson Eric A. Mendelson |
President |
July 17, 2023 | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Financial and Accounting Officer) |
July 17, 2023 | ||
II-66
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HEICO ELECTRONIC TECHNOLOGIES CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Victor H. Mendelson Victor H. Mendelson |
President, Chief Executive Officer, and Director (Principal Executive Officer) |
July 17, 2023 | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Financial and Accounting Officer) |
July 17, 2023 | ||
|
/s/ Laurans A. Mendelson Laurans A. Mendelson |
Director | July 17, 2023 | ||
|
/s/ Eric A. Mendelson Eric A. Mendelson |
Director | July 17, 2023 | ||
II-67
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HEICO FLIGHT SUPPORT CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Eric A. Mendelson Eric A. Mendelson |
President (Principal Executive Officer) |
July 17, 2023 | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Financial and Accounting Officer) |
July 17, 2023 | ||
II-68
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HEICO PARTS GROUP, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-69
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HEICO REPAIR GROUP AEROSTRUCTURES, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-70
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HEICO REPAIR, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-71
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HETC I, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Victor H. Mendelson Victor H. Mendelson |
President (Principal Executive Officer) |
July 17, 2023 | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Financial and Accounting Officer) |
July 17, 2023 | ||
II-72
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HETC II CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Victor H. Mendelson Victor H. Mendelson |
President (Principal Executive Officer) |
July 17, 2023 | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Financial and Accounting Officer) |
July 17, 2023 | ||
II-73
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HETC III, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-74
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HETC IV, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-75
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HETC V, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-76
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HFSC III CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-77
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HFSC IV CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Eric A. Mendelson Eric A. Mendelson |
President (Principal Executive Officer) |
July 17, 2023 | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Financial and Accounting Officer) |
July 17, 2023 | ||
II-78
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HFSC V, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-79
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HFSC VI, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-80
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HFSC VII, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-81
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HFSC VIII, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Eric A. Mendelson Eric A. Mendelson |
President (Principal Executive Officer) |
July 17, 2023 | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Financial and Accounting Officer) |
July 17, 2023 | ||
II-82
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HFSC XI CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Eric A. Mendelson Eric A. Mendelson |
President (Principal Executive Officer) |
July 17, 2023 | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Financial and Accounting Officer) |
July 17, 2023 | ||
II-83
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HNW 2 BUILDING CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-84
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HNW BUILDING CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-85
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| HVT GROUP, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-86
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| INERTIAL AIRLINE SERVICES, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-87
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| INTELLIGENT DEVICES, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-88
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| IRCAMERAS LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-89
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| IRONWOOD ELECTRONICS, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
/s/ Victor H. Mendelson Victor H. Mendelson |
Director | July 17, 2023 | ||
/s/ David Struyk David Struyk |
Director | July 17, 2023 | ||
II-90
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| JET AVION CORPORATION | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-91
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| JETSEAL, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-92
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| LEADER TECH, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-93
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| LPI INDUSTRIES CORPORATION | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-94
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| LUCIX CORPORATION | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-95
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| LUMINA POWER, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-96
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| MASTIFF DESIGN, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-97
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| MCCLAIN INTERNATIONAL, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-98
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| MIDWEST MICROWAVE SOLUTIONS, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
/s/ Victor H. Mendelson Victor H. Mendelson |
Director | July 17, 2023 | ||
/s/ Phillip J. Rezin Phillip J. Rezin |
Director | July 17, 2023 | ||
II-99
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| NIACC-AVITECH TECHNOLOGIES INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-100
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| NORTHWINGS ACCESSORIES CORPORATION | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
II-101
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| OPTICAL DISPLAY ENGINEERING, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
Signature |
Title |
Date | ||
/s/ Eric A. Mendelson Eric A. Mendelson |
President (Principal Executive Officer) |
July 17, 2023 | ||
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Financial and Accounting Officer) |
July 17, 2023 | ||
II-102
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| OPTICAL DISPLAY ENGINEERING, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
|
/s/ Luis J. Morell Luis J. Morell |
Manager | July 17, 2023 | ||
|
/s/ Leon Gonzalez Leon Gonzalez |
Manager | July 17, 2023 | ||
II-103
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| PACIWAVE, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Director (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
|
/s/ Mike England Mike England |
Director | July 17, 2023 | ||
II-104
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| PIONEER INDUSTRIES LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
|
Signature |
Title |
Date | ||
|
/s/ Carlos L. Macau, Jr. Carlos L. Macau, Jr. |
Treasurer and Manager (Principal Executive, Financial and Accounting Officer) |
July 17, 2023 | ||
|
/s/ Eric A. Mendelson Eric A. Mendelson |
Manager | July 17, 2023 | ||
|
/s/ David Yormack David Yormack |
Manager | July 17, 2023 | ||
|
/s/ Robert Yormack Robert Yormack |
Manager | July 17, 2023 | ||
|
/s/ David Susser David Susser |
Manager | July 17, 2023 | ||
II-105
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| PRIME AIR, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) | |||
| /s/ Eric A. Mendelson | Manager | July 17, 2023 | ||
| Eric A. Mendelson | ||||
| /s/ Barry Cohen | Manager | July 17, 2023 | ||
| Barry Cohen |
II-106
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| PYRAMID SEMICONDUCTOR CORP | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-107
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| QUELL CORPORATION | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) | |||
| /s/ Victor H. Mendelson | July 17, 2023 | |||
| Victor H. Mendelson | Director | |||
| /s/ Kevin Foreman | July 17, 2023 | |||
| Kevin Foreman | Director | |||
II-108
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| R.H. LABORATORIES, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) | |||
| /s/ Victor H. Mendelson | July 17, 2023 | |||
| Victor H. Mendelson | Director | |||
| /s/ Benjamin Robinson | July 17, 2023 | |||
| Benjamin Robinson | Director |
II-109
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| RADIANT POWER CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-110
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| RADIANT POWER IDC, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-111
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| RADIANT-SEACOM REPAIRS CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-112
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| RAMONA RESEARCH, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-113
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| REINHOLD HOLDINGS, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-114
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| REINHOLD INDUSTRIES, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) | |||
II-115
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| RESEARCH ELECTRONICS INTERNATIONAL, L.L.C. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) | |||
| /s/ Victor H. Mendelson | July 17, 2023 | |||
| Victor H. Mendelson | Manager | |||
| /s/ Thomas H. Jones | July 17, 2023 | |||
| Thomas H. Jones | Manager |
II-116
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| RIDGE ENGINEERING, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-117
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| RIDGE HOLDCO, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) | |||
| /s/ Clarence Hightower | July 17, 2023 | |||
| Clarence Hightower | Manager | |||
| /s/ David Tracey | July 17, 2023 | |||
| David Tracey | Manager |
II-118
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| ROBERTSON FUEL SYSTEMS, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-119
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| ROCKY MOUNTAIN HYDROSTATICS, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) | |||
| /s/ Val R. Shelley | July 17, 2023 | |||
| Val R. Shelley | Manager | |||
| /s/ Bradley W. Zuercher | July 17, 2023 | |||
| Bradley W. Zuercher | Manager |
II-120
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| SANTA BARBARA INFRARED, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) | |||
II-121
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| SEAL DYNAMICS LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-122
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| SEAL Q CORP. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-123
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| SENSOR SYSTEMS, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-124
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| SENSOR TECHNOLOGY ENGINEERING, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) | |||
| /s/ Steve McHugh | Manager | July 17, 2023 | ||
| Steve McHugh |
II-125
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| SIERRA MICROWAVE TECHNOLOGY, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
|||
| /s/ Victor H. Mendelson | Manager | July 17, 2023 | ||
| Victor H. Mendelson | ||||
| /s/ Troy J. Rodriguez | Manager | July 17, 2023 | ||
| Troy J. Rodriguez |
II-126
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| SOLID SEALING TECHNOLOGY, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
|||
| /s/ Thomas L. Ricketts | Director | July 17, 2023 | ||
| Thomas L. Ricketts | ||||
| /s/ Alan A. Fuierer | Director | July 17, 2023 | ||
| Alan A. Fuierer |
II-127
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| SPECIALTY SILICONE PRODUCTS, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-128
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| SUNSHINE AVIONICS LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
|||
| /s/ Leon Gonzalez | Manager | July 17, 2023 | ||
| Leon Gonzalez | ||||
| /s/ Richard Munsie | Manager | July 17, 2023 | ||
| Richard Munsie |
II-129
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| SWITCHCRAFT HOLDCO, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Victor Mendelson | Chief Executive Officer |
July 17, 2023 | ||
| Victor Mendelson | (Principal Executive Officer) | |||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Financial and Accounting Officer) |
II-130
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| SWITCHCRAFT, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-131
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| THE BECHDON COMPANY, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-132
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| THERMAL ENERGY PRODUCTS, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-133
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| THERMAL STRUCTURES, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-134
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| TRAD TESTS & RADIATIONS, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-135
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| TRANSFORMATIONAL SECURITY, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-136
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| TSID HOLDINGS, LLC | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Manager | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
|||
| /s/ Victor H. Mendelson | Manager | July 17, 2023 | ||
| Victor H. Mendelson | ||||
| /s/ Thomas H. Jones | Manager | July 17, 2023 | ||
| Thomas H. Jones |
II-137
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| TTT CUBED, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-138
Pursuant to the requirements of the Securities Act of 1933, the undersigned Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Hollywood, Florida, on this 17th day of July, 2023.
| TURBINE KINETICS, INC. | |||
| By: | /s/ Carlos L. Macau, Jr. | ||
| Name: | Carlos L. Macau, Jr. | ||
| Title: | Treasurer | ||
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Carlos L. Macau, Jr., Treasurer, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her 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 or she 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 date indicated.
| Signature | Title | Date | ||
| /s/ Carlos L. Macau, Jr. | Treasurer and Director | July 17, 2023 | ||
| Carlos L. Macau, Jr. | (Principal Executive, Financial and Accounting Officer) |
II-139
Exhibit 4.9
FORM OF INDENTURE
DATED AS OF , 2023
BETWEEN
HEICO Corporation
as Issuer,
THE SUBSIDIARIES NAMED HEREIN
as Guarantors
AND
Truist Bank
as Trustee
Reconciliation and tie between Trust Indenture Act of 1939 and this Indenture
| Trust Indenture Act Section | Indenture Section | |
| 310(a)(1) | 6.09 | |
| (a)(2) | 6.09 | |
| (a)(3) | Not Applicable | |
| (a)(4) | Not Applicable | |
| (a)(5) | 6.09 | |
| (b) | 6.08, 6.10 | |
| (c) | Not Applicable | |
| 311(a) | 6.13 | |
| (b) | 6.13 | |
| (c) | Not Applicable | |
| 312(a) | 7.01, 7.02 | |
| (b) | 7.02 | |
| (c) | 7.02 | |
| 313(a) | 7.03 | |
| (b)(1) | Not Applicable | |
| (b)(2) | 7.03 | |
| (c) | 7.03 | |
| (d) | 7.03 | |
| 314(a) | 7.04 | |
| (a)(4) | 1.04, 10.04 | |
| (b) | Not Applicable | |
| (c)(1) | 1.02 | |
| (c)(2) | 1.02 | |
| (c)(3) | Not Applicable | |
| (d) | Not Applicable | |
| (e) | 1.02 | |
| (f) | Not Applicable | |
| 315(a) | 6.01 | |
| (b) | 6.02 | |
| (c) | 6.01 | |
| (d) | 6.01 | |
| (c) | 5.14 | |
| 316(a)(last sentence) | 1.06 | |
| (a)(1)(A) | 5.02, 5.12 | |
| (a)(1)(B) | 5.13 | |
| (a)(2) | Not Applicable | |
| (b) | 5.08 | |
| (c) | 1.04 | |
| 317(a)(1) | 5.03 | |
| (a)(2) | 5.04 | |
| (b) | 10.03 | |
| 318(a) | 1.07 | |
| (b) | Not Applicable | |
| (c) | 1.07 |
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.
i
TABLE OF CONTENTS
| ARTICLE I | ||
| DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | ||
| Page | ||
| Section 1.01 | Definitions | 1 |
| Section 1.02 | Compliance Certificates and Opinions | 6 |
| Section 1.03 | Form of Documents Delivered to Trustee | 6 |
| Section 1.04 | Acts of Holders; Record Dates | 7 |
| Section 1.05 | Notices, Etc., to Trustee, the Company or a Subsidiary Guarantor | 8 |
| Section 1.06 | Notice to Holders; Waiver | 9 |
| Section 1.07 | Conflict with Trust Indenture Act | 9 |
| Section 1.08 | Effect of Headings and Table of Contents | 9 |
| Section 1.09 | Successors and Assigns | 9 |
| Section 1.10 | Separability Clause | 10 |
| Section 1.11 | Benefits of Indenture | 10 |
| Section 1.12 | Governing Law | 10 |
| Section 1.13 | Legal Holidays | 10 |
| Section 1.14 | Counterparts; Signatures | 10 |
| Section 1.15 | Incorporators, Equityholders, Directors, Members, Managers, Officers and Employees of the Company Exempt from Individual Liability | 11 |
| Section 1.16 | WAIVER OF JURY TRIAL | 11 |
| Section 1.17 | U.S.A. Patriot Act | 11 |
| Section 1.18 | Jurisdiction: Consent to Service of Process | 11 |
| Section 1.19 | Calculations in Respect of the Securities | 11 |
| ARTICLE II | ||
| SECURITY FORM | ||
| Section 2.01 | Forms Generally | 12 |
| Section 2.02 | Form of Legend for Global Securities | 12 |
| Section 2.03 | Form of Trustee’s Certificate of Authentication | 13 |
| ARTICLE III | ||
| THE SECURITIES | ||
| Section 3.01 | Amount Unlimited; Issuable in Series | 13 |
| Section 3.02 | Denominations | 16 |
| Section 3.03 | Execution, Authentication, Delivery and Dating | 16 |
| Section 3.04 | Temporary Securities | 17 |
| Section 3.05 | Registration; Registration of Transfer and Exchange | 17 |
| Section 3.06 | Mutilated, Destroyed, Lost and Stolen Securities | 19 |
| Section 3.07 | Payment of Interest; Interest Rights Preserved | 20 |
| Section 3.08 | Persons Deemed Owners | 21 |
| Section 3.09 | Cancellation | 21 |
| Section 3.10 | Computation of Interest | 22 |
| Section 3.11 | CUSIP Numbers | 22 |
| Section 3.12 | Depositary | 22 |
| ARTICLE IV | ||
| SATISFACTION AND DISCHARGE | ||
| Section 4.01 | Satisfaction and Discharge of Indenture | 22 |
| Section 4.02 | Application of Trust Money | 23 |
ii
| ARTICLE V | ||
| REMEDIES | ||
| Page | ||
| Section 5.01 | Events of Default | 23 |
| Section 5.02 | Acceleration of Maturity; Rescission and Annulment | 24 |
| Section 5.03 | Collection of Indebtedness and Suits for Enforcement by Trustee | 25 |
| Section 5.04 | Trustee May File Proofs of Claim | 25 |
| Section 5.05 | Trustee May Enforce Claims Without Possession of Securities | 26 |
| Section 5.06 | Application of Money Collected | 26 |
| Section 5.07 | Limitation on Suits | 26 |
| Section 5.08 | Unconditional Right of Holders to Receive Principal Premium and Interest and to Convert Securities | 27 |
| Section 5.09 | Restoration of Rights and Remedies | 27 |
| Section 5.10 | Rights and Remedies Cumulative | 27 |
| Section 5.11 | Delay or Omission Not Waiver | 27 |
| Section 5.12 | Control by Holders | 27 |
| Section 5.13 | Waiver of Past Defaults | 28 |
| Section 5.14 | Undertaking for Costs | 28 |
| Section 5.15 | Waiver of Usury, Stay or Extension Laws | 28 |
| ARTICLE VI | ||
| THE TRUSTEE | ||
| Section 6.01 | Certain Duties and Responsibilities | 28 |
| Section 6.02 | Notice of Defaults | 29 |
| Section 6.03 | Certain Rights of Trustee | 30 |
| Section 6.04 | Not Responsible for Recitals or Issuance of Securities | 31 |
| Section 6.05 | May Hold Securities | 31 |
| Section 6.06 | Money Held in Trust | 31 |
| Section 6.07 | Compensation and Reimbursement | 31 |
| Section 6.08 | Conflicting Interests | 32 |
| Section 6.09 | Corporate Trustee Required, Eligibility | 32 |
| Section 6.10 | Resignation and Removal, Appointment of Successor | 33 |
| Section 6.11 | Acceptance of Appointment by Successor | 34 |
| Section 6.12 | Merger, Conversion, Consolidation or Succession to Business | 34 |
| Section 6.13 | Preferential Collection of Claims Against Company or a Subsidiary Guarantor | 34 |
| Section 6.14 | Appointment of Authenticating Agent | 35 |
| ARTICLE VII | ||
| HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY | ||
| Section 7.01 | Company to Furnish Trustee Names and Addresses of Holders | 37 |
| Section 7.02 | Preservation of Information; Communications to Holders | 37 |
| Section 7.03 | Reports by Trustee | 37 |
| Section 7.04 | Reports by Company | 37 |
| Section 7.05 | Calculation of Original Issue Discount | 38 |
| ARTICLE VIII | ||
| CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE | ||
| Section 8.01 | Company May Consolidate, Etc., Only on Certain Terms | 38 |
| Section 8.02 | Successor Substituted | 38 |
iii
| ARTICLE IX | ||
| SUPPLEMENTAL INDENTURES | ||
| Page | ||
| Section 9.01 | Supplemental Indentures Without Consent of Holders | 38 |
| Section 9.02 | Supplemental Indentures With Consent of Holders | 40 |
| Section 9.03 | Execution of Supplemental Indentures | 40 |
| Section 9.04 | Effect of Supplemental Indentures | 40 |
| Section 9.05 | Conformity with Trust Indenture Act | 41 |
| Section 9.06 | Reference in Securities to Supplemental Indentures | 41 |
| ARTICLE X | ||
| COVENANTS | ||
| Section 10.01 | Payment of Principal, Premium and Interest | 41 |
| Section 10.02 | Maintenance of Office or Agency | 41 |
| Section 10.03 | Money for Securities Payments to Be Held in Trust | 42 |
| Section 10.04 | Statement by Officers as to Default | 42 |
| Section 10.05 | Existence | 42 |
| Section 10.06 | Waiver of Certain Covenants | 43 |
| Section 10.07 | Additional Subsidiary Guarantors | 43 |
| ARTICLE XI | ||
| REDEMPTION OF SECURITIES | ||
| Section 11.01 | Applicability of Article | 43 |
| Section 11.02 | Election to Redeem; Notice to Trustee | 43 |
| Section 11.03 | Selection by Trustee of Securities to Be Redeemed | 43 |
| Section 11.04 | Notice of Redemption | 44 |
| Section 11.05 | Deposit of Redemption Price | 44 |
| Section 11.06 | Securities Payable on Redemption Date | 45 |
| Section 11.07 | Securities Redeemed in Part | 45 |
| ARTICLE XII | ||
| SINKING FUNDS | ||
| Section 12.01 | Applicability of Article | 45 |
| Section 12.02 | Satisfaction of Sinking Fund Payments with Securities | 46 |
| Section 12.03 | Redemption of Securities for Sinking Fund | 46 |
| ARTICLE XIII | ||
| DEFEASANCE AND COVENANT DEFEASANCE | ||
| Section 13.01 | Company’s Option to Effect Defeasance or Covenant Defeasance | 46 |
| Section 13.02 | Defeasance and Discharge | 46 |
| Section 13.03 | Covenant Defeasance | 47 |
| Section 13.04 | Conditions to Defeasance or Covenant Defeasance | 47 |
| Section 13.05 | Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions | 48 |
| Section 13.06 | Reinstatement | 48 |
| ARTICLE XIV | ||
| GUARANTEES | ||
| Section 14.01 | Guarantees | 49 |
| Section 14.02 | Limitation on Liability | 49 |
| Section 14.03 | Execution and Delivery of Guarantees | 49 |
| Section 14.04 | Guarantors May Consolidate, Etc., on Certain Terms | 50 |
| Section 14.05 | Release of Guarantors | 50 |
| Section 14.06 | Successors and Assigns | 50 |
| Section 14.07 | No Wavier, Etc. | 50 |
| Section 14.08 | Modification, Etc. | 50 |
iv
INDENTURE
THIS INDENTURE, dated as of [____], 2023, between HEICO CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware, (herein called the “Company”), having its principal executive office located at 3000 Taft Street, Hollywood, Florida 33021, the Subsidiaries of the Company listed on Schedule A and TRUIST BANK, a North Carolina banking corporation, as trustee (herein called the “Trustee”).
RECITALS
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Company’s unsecured senior debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as provided in this Indenture.
Each Subsidiary Guarantor (as defined herein) desires to make the Guarantee (as defined herein) provided herein and has duly authorized the execution and delivery of this Indenture.
All things necessary to make this Indenture a valid agreement of the Company and each Subsidiary Guarantor in accordance with its terms, have been done.
This Indenture is subject to the applicable provisions of the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder and shall be governed by such provisions.
NOW, THEREFORE, and in consideration of the premises and the purchase of the Securities by the Holders (as defined herein) thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular and the masculine gender shall include the feminine and neuter, and vice versa, unless the context otherwise requires;
(b) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America (including, if applicable, International Financial Reporting Standards) as in effect from time to time;
(d) unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture;
(e) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
(f) “or” is not exclusive, and “including” means “including without limitation”, “including but not limited to” or words of similar import; and
(g) when used with respect to any Security, the words “convert,” “converted” and “conversion” are intended to refer to the right of the Holder or the Company to convert or exchange such Security into or for securities or other property in accordance with such terms, if any, as may hereafter be specified for such Security as contemplated by Section 3.01, and these words are not intended to refer to any right of the Holder or the Company to exchange such Security for other Securities of the same series and like tenor pursuant to Section 3.04, Section 3.05, Section 3.06, Section 9.06 or Section 11.07 or another similar provisions of this Indenture, unless the context otherwise requires; and references herein to the terms of any Security that may be converted mean such terms as may be specified for such Security as contemplated in Section 3.01.
1
“Act”, when used with respect to any Holder, has the meaning specified in Section 1.04.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Procedures” of a Depositary means, with respect to any transfer, exchange, transaction or other matter at any time, involving a Global Security, the rules policies and procedures of such Depositary, if any, that are applicable to such matter at such time.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Board of Directors” when used with reference to the Company or any Subsidiary Guarantor, means either the board of directors of the Company or such Subsidiary Guarantor, as the case may be, or any duly authorized committee of that board of directors.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or the Guarantor to have been duly adopted by the Board of Directors of the Company or the Guarantor, as the case may be, and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment, means, except as otherwise provided or contemplated by Section 3.01 with respect to any series of Securities, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which commercial banking institutions in that Place of Payment are authorized or obligated by law or executive order or regulation to close.
“Commission” means the Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Company” means the Person named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” mean, respectively, a written request or order, as the case may be, signed in the name of the Company by any Senior Officer, the Treasurer of the Company or the General Counsel of the Company.
“Corporate Trust Office” means the designated office of the Trustee (currently at 2713 Forest Hills Road, S.W., Building 2, Floor 2, Wilson, NC 27893, Attention: Corporate Trust and Escrow Services) at which at any particular time its corporate trust business with respect to the Securities shall be administered, or at any other time at such other address as the Trustee may designate from time to time by notice to the Holders.
“corporation” means a corporation, association, limited liability company, company, joint-stock company or business trust.
“Covenant Defeasance” has the meaning specified in Section 13.03.
2
“Credit Agreement” means the Revolving Credit Agreement, dated as of November 6, 2017, by and among the Company and the several banks and other financial institutions from time to time who are a party thereto, and Truist Bank, as amended and as may be further amended, restated, supplemented, refinanced, refunded or replaced from time to time, including any such refinancing, refunding or replacement that increases the amount of borrowings thereunder or alters the maturity thereof.
“Defaulted Interest” has the meaning specified in Section 3.07.
“Defeasance” has the meaning specified in Section 13.02.
“Depositary” means, with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities as contemplated by Section 3.01.
“Domestic Subsidiary” means any Subsidiary of the Company that is organized and existing under the laws of the United States, any state in the United States or the District of Columbia.
“Event of Default” has the meaning specified in Section 5.01.
“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Expiration Date” has the meaning specified in Section 1.04.
“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 2.02 (or such legend as may be specified as contemplated by Section 3.01 for such Securities) and which is registered in the name of the Depositary for such series or its nominee.
“Guarantee” means each guarantee of the Company’s obligations under the Securities as provided in Article XIV by each Subsidiary Guarantor.
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 3.01.
“interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Issue Date” means the date on which the Securities are initially issued.
“mandatory sinking fund payment” has the meaning specified in Section 12.01.
“Material Domestic Subsidiary” means any Domestic Subsidiary that is a Material Subsidiary.
“Material Subsidiary” means any “Material Subsidiary” of the Company as defined in the Credit Agreement.
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” means a written notice of the kind specified in Section 5.01(d).
“Officer’s Certificate” means a certificate signed by any Senior Officer, the Treasurer or the General Counsel of such Person that, if required by the Trust Indenture Act, complies with the requirements of Section 314(e) of the Trust Indenture Act. Notwithstanding the foregoing, the Officer’s Certificate required by Section 10.04 shall be signed by one of the following: any Senior Officer, the principal accounting officer of the Company or the Treasurer of the Company.
3
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of, or outside counsel to, the Company or an Affiliate of the Company, and who shall be acceptable to the Trustee, which acceptance shall not be unreasonably withheld.
“optional sinking fund payment” has the meaning specified in Section 12.01.
“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled and delivered to the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities, except to the extent provided in Sections 13.02 and 13.03 respectively, as to which the Company has effected Defeasance pursuant to Section 13.02 or Covenant Defeasance pursuant to Section 13.03;
(4) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; and
(5) Securities as to which any property deliverable upon conversion thereof has been delivered (or such delivery has been made available), or as to which any other particular conditions have been satisfied, in each case as may be provided for such Securities as contemplated in Section 3.01;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01, (C) the principal amount of a Security denominated in one or more foreign currencies, composite currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.01, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Upon the written request of the Trustee, the Company shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all Securities, if any, known by the Company to be owned or held by or for the account of the Company, or any other obligor on the Securities or any Affiliate of the Company or such obligor, and the Trustee shall be entitled to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
4
“Paying Agent” means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.
“Person” means any individual, corporation, company (including a limited liability company), partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity.
“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities that series are payable as specified or contemplated by Section 3.01.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” for the interest payable on the Securities of any series means the date whether or not a Business Day specified for that purpose as contemplated by Section 3.01.
“Responsible Officer”, when used with respect to the Trustee, means any officer of the Trustee in its corporate trust department and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred internally because of such officer’s knowledge of and familiarity with the particular subject.
“Restricted Subsidiary” means any Subsidiary of the Company that is not an Unrestricted Subsidiary.
“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.05.
“Senior Officer” means the Chief Executive Officer, the Chief Financial Officer, a President, a Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company or any other officer or officers designated in a Board Resolution delivered to the Trustee.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means any Person a majority of the combined voting power of the total outstanding ownership interests in which is, at the time of determination, beneficially owned or held, directly or indirectly, by the Company or one or more other Subsidiaries. For this purpose, “voting power” means power to vote in an ordinary election of directors (or, in the case of a Person that is not a corporation, ordinarily to appoint or approve the appointment of Persons holding similar positions), whether at all times or only as long as no senior class of ownership interests has such voting power by reason of any contingency.
5
“Subsidiary Guarantors” means the Subsidiaries of the Company named in Schedule A, together with any additional Subsidiaries that execute a Guarantee in accordance with Section 10.07 of this Indenture, and, in each case, their respective successors and assigns.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended as in force at the date as of which this Indenture was executed, except as otherwise provided in Section 9.05; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“U.S. Government Obligation” has the meaning specified in Section 13.04.
“U.S.A. Patriot Act” U.S.A. Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. Compliance 107-56, as amended.
“Unrestricted Subsidiary” means each Subsidiary of the Company that is (i) an “Unrestricted Subsidiary” under the Credit Agreement as of the date hereof; and (ii) hereafter designated as such by the Company to the Trustee from time to time; provided that a Subsidiary shall only be designated as an Unrestricted Subsidiary if the Company has also designated such Subsidiary as an “Unrestricted Subsidiary” (or any substantially similar designation) pursuant to the Credit Agreement. The Company may designate any Unrestricted Subsidiary to be a Restricted Subsidiary for purposes of this Indenture at any time if it have also designated such Subsidiary as a “Restricted Subsidiary” (or any substantially similar designation) pursuant to the Credit Agreement.
Section 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company or a Subsidiary Guarantor to the Trustee to take or refrain from taking any action under any provision of this Indenture, the Company or the Subsidiary Guarantor shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act and stating that all conditions precedent to such act or omission have been complied with. Each such certificate and opinion shall be given in the form of an Officer’s Certificate, if to be given by the Company or a Subsidiary Guarantor, and an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided in Section 10.04) shall include,
(a) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Company or a Subsidiary Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such officer’s certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or of a Subsidiary Guarantor stating that the information with respect to such factual matters is in the possession of the Company or such Subsidiary Guarantor, as applicable, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Counsel delivering an Opinion of Counsel may also rely as to factual matters on certificates of governmental or other officials customary for opinions of the type required. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders (either physically or by means of a facsimile or electronic transmission, including through the facilities of the Depositary) in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered (either physically or by means of a facsimile or electronic transmission, including through the facilities of the Depositary) to the Trustee and, where it is hereby expressly required, to the Company or a Subsidiary Guarantor, as applicable. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee, the Company and the Subsidiary Guarantors, if made in the manner provided in this Section. Without limiting the generality of the foregoing, a Holder, including a Depositary that is a Holder of a Global Security, may make, give or take, by a proxy or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Depositary that is a Holder of a Global Security may provide its proxy or proxies to the beneficial owners of interests in any such Global Security.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him or her the execution thereof. Where such execution is by a signer acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. The ownership, principal amount and serial numbers of Securities held by any Person, and the date of commencement of such Person’s holding the same, shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company or a Subsidiary Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, but the Company shall have no obligation to do so; provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.05 or Section 1.06.
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The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings referred to in Section 5.07(b) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.05 or Section 1.06.
With respect to any record date set pursuant to this Section, the party hereto which sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06, on or prior to the then existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day following such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day following the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
Section 1.05. Notices, Etc., to Trustee, the Company or a Subsidiary Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or a Subsidiary Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (which may be by facsimile or electronic transmission) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust and Escrow Services or at any other address furnished in writing to the Company by the Trustee; or
(2) the Company or a Subsidiary Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company or such Subsidiary Guarantor addressed to the attention of the Treasurer at the address of the Company’s principal executive office specified in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by the Company.
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The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Company or any Subsidiary Guarantor elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Company and each Subsidiary Guarantor agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at its address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Any notice when mailed to a Holder in the aforesaid manner shall be conclusively deemed to have been received by such Holder whether or not actually received by such Holder. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. Where this Indenture provides for notice of any event to a Holder of a Global Security, such notice shall be sufficiently given if given to the Depositary for such Security (or its designee), pursuant to the Applicable Procedures of the Depositary, not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice.
Section 1.07. Conflict with Trust Indenture Act.
This Indenture is subject to the provisions of the Trust Indenture Act that are required to be a part of this Indenture and, to the extent applicable, shall be governed by such provisions. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act or with another provision hereof which is required under the Trust Indenture Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or excluded, as the case may be.
Section 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or the Subsidiary Guarantors shall bind its successors and assigns, whether so expressed or not. All agreements of the Trustee in this Indenture shall bind its successors and assigns, whether so expressed or not.
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Section 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture, except as may otherwise be expressly provided pursuant to Section 3.01 with respect to any specific Securities.
Section 1.12. Governing Law.
This Indenture, the Securities and the Guarantees shall be governed by and construed in accordance with the laws of the State of New York.
Section 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security, or any date on which a Holder has the right to convert such Holder’s Security, shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any), or conversion of such Security, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, or on such conversion date.
Section 1.14. Counterparts; Signatures.
This Indenture, any supplemental indenture or any certificate or other document delivered pursuant to this Indenture or any supplemental indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. This Indenture and any supplemental indenture shall be valid, binding, and enforceable against a party, and, except as otherwise provided in this Indenture or any supplemental indenture, any certificate or other document delivered pursuant to this Indenture or any supplemental indenture shall be deemed to be duly signed and delivered, only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the New York Uniform Commercial Code (collectively, “Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the New York Uniform Commercial Code or other Signature Law due to the character or intended character of the writings. All notices, approvals, consents, requests and any communications hereunder must be in writing (provided that any such communication sent to Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature provided by the electronic signature provider that the Company plans to use (or such other digital signature provider as specified in writing to Trustee by the authorized representative)), in English. The Trustee shall have no duty to inquire into or investigate the authenticity or authorization of any electronic signature and shall be entitled to conclusively rely on any such electronic signature without any liability with respect thereto. The Company and the Subsidiary Guarantors agree to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to Trustee, including without limitation the risk of Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
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Section 1.15. Incorporators, Equityholders, Directors, Members, Managers, Officers and Employees of the Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security or Guarantee, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future equityholder, director, member, manager, officer or employee, as such, of the Company, a Subsidiary Guarantor or of any of their respective successors, either directly or through the Company, a Subsidiary Guarantor or any of their respective successors, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.
Section 1.16. WAIVER OF JURY TRIAL.
EACH OF THE COMPANY, THE SUBSIDIARY GUARANTORS, THE HOLDERS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING AS BETWEEN THE COMPANY AND THE TRUSTEE ONLY ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES.
Section 1.17. U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance with the Customer Identification Program (CIP) requirements under the U.S.A. Patriot Act and its implementing regulations, the Trustee in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties hereby agree that they shall provide the Trustee with such information as it may request including, but not limited to, each party’s name, physical address, tax identification number and other information that will help the Trustee identify and verify each party’s identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information.
Section 1.18. Jurisdiction; Consent to Service of Process.
(a) Each party hereto irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any U.S. Federal or New York State court sitting in the Borough of Manhattan, New York, New York in any action or proceeding arising out of or relating to this Indenture, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Indenture shall affect any right that Company, the Subsidiary Guarantors, the Trustee or any Holder may otherwise have to bring any action or proceeding relating to this Indenture against any party hereto or its properties in the courts of any jurisdiction.
(b) Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Indenture in any court referred to in Section 1.18(a). Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
Section 1.19. Calculations in Respect of the Securities.
The Company and its agents shall make all calculations under this Indenture and the Securities. These calculations include, but are not limited to, determinations of the Redemption Price and the amount of interest payable on the Securities. The Company and its agents shall make all of these calculations in good faith, and, absent manifest error, such calculations shall be final and binding on all Holders. The Company shall provide a copy of such calculations as required hereunder, and the Trustee shall be entitled to conclusively rely on the accuracy of any such calculations without independent verification. The Trustee will forward the Company’s calculations to any Holder upon the request of that Holder.
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ARTICLE II SECURITY FORM
Section 2.01. Forms Generally.
The Securities of each series and the Trustee’s certificate of authentication shall be in substantially the form set forth in Exhibit A, or in such other form or forms as shall be established by or pursuant to a Board Resolution and, subject to Section 3.03, to the extent established in an Officer’s Certificate setting forth, or determining the manner of, such establishment, or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with applicable laws or the rules of any securities exchange or automated quotation system on which the Securities of such series may be listed or traded or of any Depositary therefor or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution thereof. If the form or forms of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and, together with such Board Resolution and the applicable Officer's Certificate, delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
If Securities of a series are issuable in whole or in part in the form of one or more Global Securities, as contemplated by Section 3.01, then, notwithstanding Clause (i) of Section 3.01 and the provisions of Section 3.02, any Global Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced or increased, as the case may be, to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any reduction or increase in the amount, of Outstanding Securities represented thereby shall be made in such manner and upon instructions given by such Person or Persons as shall be specified therein or in a Company Order. Subject to the provisions of Sections 3.03, 3.04, 3.05 and 3.06, the Trustee shall deliver and redeliver any Global Security in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. Any instructions by the Company with respect to endorsement or delivery or redelivery of a Global Security shall be in a Company Order.
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The provisions of the last sentence of Section 3.03 shall apply to any Security represented by a Global Security if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Global Security together with a Company Order with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 3.03.
Section 2.03. Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication shall be in substantially the following form:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the debt Securities of the series designated herein and referred to in the within-mentioned Indenture.
| TRUIST BANK, | ||
| As Trustee | ||
| By: | ||
| Authorized Signatory | ||
ARTICLE III THE SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series.
With respect to any Securities to be authenticated and delivered hereunder, there shall be established in or pursuant to a Board Resolution and set forth in, or determined in the manner provided in, an Officer’s Certificate, or established in one or more indentures supplemental hereto prior to the issuance of any Securities of a series:
(a) the form and title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(b) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder); provided, however, that the authorized aggregate principal amount of such series may from time to time be increased above such amount by a Board Resolution to such effect;
(c) the issue price or prices of originally issued Securities, expressed as a percentage of the principal amount, and the original issue date;
(d) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(e) the date or dates on which the Securities will be issued and on which principal of, and premium, if any, on, any Securities of the series is payable or the method of determination thereof;
(f) the rate or rates (which may be fixed or variable, or a combination thereof) at which any Securities of the series shall bear interest, if any, or the method of determination thereof, the date or dates from which any such interest shall accrue, or the method of determination thereof, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date, or the method by which such date or dates shall be determined, the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months, and the right, if any, to extend or defer interest payments and the duration of such extension or deferral;
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(g) the place or places where, subject to the provisions of Section 10.02, the principal of and any premium and interest on any Securities of the series shall be payable, Securities of the series may be surrendered for registration or transfer, Securities of the series may be surrendered for exchange, and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;
(h) the period or periods, if any, within which, the price or prices at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced;
(i) the obligation, if any, and the option, if any, of the Company to redeem, purchase or repay any Securities of the series pursuant to any sinking fund, amortization or analogous provisions or upon the happening of a specified event or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation or option;
(j) if other than a minimum denomination equal to $2,000 or an integral multiple of $1,000 in excess thereof, the denominations in which any Securities of the series shall be issuable;
(k) if the debt Securities will be issued in registered or bearer form or both and, if in bearer form, the related terms and conditions and any limitations on issuance of such bearer debt Securities (including exchange for registered debt Securities of the same series);
(l) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index including an index based on a currency or currencies other than in which the Securities of that series are payable or pursuant to a formula, the manner in which such amounts shall be determined;
(m) if other than the currency of the United States of America, the currency, currencies or currency units in which the principal of or any premium or interest on any Securities of the series shall be denominated, payable, redeemable or purchasable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding” in Section 1.01;
(n) if the principal of or any premium or interest on any Securities of the series is to be payable, redeemable or purchasable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, redeemable, or purchasable, the currency, currencies or currency units in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, redeemable or purchasable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable, redeemable or purchasable (or the manner in which such amount shall be determined);
(o) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or provable in bankruptcy pursuant to Section 5.04 or the method of determination thereof;
(p) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(q) if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 13.02 or Section 13.03 or both such Sections or if other than as provided in Sections 13.02 or 13.03, the terms and conditions upon which and the manner in which such series of Securities may be defeased or discharged, and, if other than by a Board Resolution, the manner in which any election by the Company to defease or discharge such Securities shall be evidenced;
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(r) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.04, information with respect to book-entry procedures, and any circumstances in addition to or in lieu of those set forth in Section 3.05 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(s) if the debt Security is issued as an Original Issue Discount Security, and if so, the yield to maturity;
(t) any deletion from, addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.02;
(u) any addition to or change in the covenants set forth in Article X which applies to Securities of the series or in any defined term used in Article X;
(v) the right, if any, of the Company to defer payments of interest by extending the interest payment periods and specify the duration of such extension, the Interest Payment Dates on which such interest shall be payable and whether and under what circumstances additional interest on amounts deferred shall be payable;
(w) if other than the Trustee, the identity of any other trustee, the Security Registrar and any Paying Agent;
(x) whether the Securities of the series will be guaranteed by any Person or Persons and, if so, the identity of such Person or Persons, the terms and conditions upon which such Securities shall be guaranteed and, if applicable, the terms and conditions upon which such guarantees may be subordinated to other indebtedness of the respective guarantors;
(y) whether the Securities of the series will be secured by any collateral and, if so, the terms and conditions upon which such Securities shall be secured and, if applicable, upon which such liens may be subordinated to other liens securing other indebtedness of the Company or any guarantor;
(z) the exchanges, if any, on which the Securities may be listed;
(aa) the terms of any right to convert or exchange Securities of such series into any other securities or property of the Company or of any other corporation or Person, and the additions or changes, if any, to this Indenture with respect to the Securities of such series to permit or facilitate such conversion or exchange; and
(bb) any other terms of the Securities of the series (which terms shall not be prohibited by the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 3.03) set forth, or determined in the manner provided, in the Officer’s Certificate referred to above or in any such indenture supplemental hereto. Accordingly, the terms of any Security of a series may differ from the terms of other Securities of the same series, if and to the extent provided pursuant to this Section. The matters referenced in any or all of Clauses (a) through (bb) above may be established and set forth or determined as aforesaid with respect to all or any specific Securities of a series (in each case to the extent permitted by the Trust Indenture Act). If any additional Securities of a series are not fungible with the Outstanding Securities of such series for Federal income tax purposes, such additional Securities will be issued with a different CUSIP number (or other applicable identifying number).
Any such Board Resolution or Officer’s Certificate referred to above with respect to Securities of any series filed with the Trustee on or before the initial issuance of the Securities of such series shall be incorporated herein by reference with respect to Securities of such series and shall thereafter be deemed to be a part of this Indenture for all purposes relating to Securities of such series as fully as if such Board Resolution or Officer’s Certificate were set forth herein in full.
All Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for increases in the aggregate principal amount of such series of Securities and issuances of additional Securities of such series or for the establishment of additional terms with respect to the Securities of such series.
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If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action, together with such Board Resolution, shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.
Section 3.02. Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 3.01. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in a minimum denomination equal to $2,000 or an integral multiple of $1,000 in excess thereof.
Section 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by a Senior Officer or the Treasurer of the Company (or any other officer of the Company designated in writing by or pursuant to authority of the Board of Directors and delivered to the Trustee from time to time).
The signature of any of these officers on the Securities may be manual, facsimile or in other electronic form.
The Securities bearing the signatures of individuals who were at the time of execution the proper officers of the Company shall bind the Company notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions, or indenture supplemental hereto as permitted by Sections 2.01 and 3.01, in authenticating such Securities, the Trustee shall be entitled to receive, in addition to the Opinion of Counsel required to be furnished to the Trustee pursuant to Section 1.02:
(a) a copy of the Board Resolution in or pursuant to which the terms and form of the Securities were established, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors, and to be in full force and effect as of the date of such certificate, and if the terms and form of such Securities are established by an Officer’s Certificate pursuant to a Board Resolution, such Officer’s Certificate;
(b) an executed supplemental indenture, if any;
(c) an Officer’s Certificate delivered in accordance with Sections 1.02 and 1.03, which (subject to Section 6.01) the Trustee will be fully protected in relying upon; and
(d) an Opinion of Counsel, which (subject to Section 6.01) the Trustee will be fully protected in relying upon, stating:
(1) that the form and terms of such Securities have been established in accordance with Article III of this Indenture and in conformity with the other provisions of this Indenture; and
(2) that such Securities and any related Guarantees, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel will constitute valid and legally binding obligations of the Company and each applicable Subsidiary Guarantor, respectively, enforceable against the Company and such Subsidiary Guarantor, respectively, in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and
(3) that all applicable laws and requirements in respect of the execution and delivery of such Securities and Guarantees have been complied with.
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If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture in accordance with the Company Order will, in the Trustee’s sole discretion, materially adversely affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. In addition, the Trustee shall not be required to authenticate any Securities if the Trustee, in its sole discretion, determines that such action may not lawfully be taken or if the Trustee, in its sole discretion, determines that such action would expose the Trustee to personal liability to existing Holders.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary, unless the Trustee reasonably determines otherwise, for the Company to deliver the Board Resolution, Officer’s Certificate or indenture supplemental otherwise required pursuant to Section 3.01 or the Opinion of Counsel otherwise required pursuant to the fourth paragraph of this Section at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment or other designation location for transfer and exchange for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
Section 3.05. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office or other designated office of the Trustee a register (the register maintained in such office being herein sometimes collectively, referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities entitled to registration or transfer as provided herein. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided unless otherwise specified with respect to any particular series of Securities in accordance with Section 3.01. The Company may at any time replace such Security Registrar, change such office or agency or act as its own Security Registrar. The Company will give prompt written notice to the Trustee of any change of the Security Registrar or of the location of such office or agency. At all reasonable times, the Security Registrar shall be available for inspection by the Trustee.
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Upon surrender for registration of transfer of any Security of a series at the office or agency of the Company in a Place of Payment or other designation location for transfer and exchange for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series (except a Global Security) may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in a form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, neither the Company nor the Trustee shall be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
Any Holder that is a transferor of a Security shall also provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation, any cost basis reporting obligations under Internal Revenue Code Section 6045. The Trustee may conclusively rely on any such information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.
The parties to this Indenture acknowledge that for certain payments made pursuant to this Indenture, the Paying Agent may be required to make a “reportable payment” or “withholdable payment” and in such cases the Paying Agent shall have the duty to act as a payor or withholding agent, respectively, that is responsible for any tax withholding and reporting required under Chapters 3, 4, 24 and 61 of the United States Internal Revenue Code of 1986, as amended (the “Code”). The Paying Agent shall have the sole right to make the determination as to which payments are “reportable payments” or “withholdable payments.” All parties to this Indenture shall provide an executed IRS Form W-9 or appropriate IRS Form W-8 (or, in each case, any successor form) to the Paying Agent prior to closing, and shall promptly update any such form to the extent such form becomes obsolete or inaccurate in any respect. The Paying Agent shall have the right to request from any party to this Indenture, or any other Person entitled to payment hereunder, any additional forms, documentation or other information as may be reasonably necessary for the Paying Agent to satisfy its reporting and withholding obligations under the Code. To the extent any such forms to be delivered under this Section 3.05 are not provided prior to or by the time the related payment is required to be made or are determined by the Paying Agent to be incomplete and/or inaccurate in any respect, the Paying Agent shall be entitled to withhold on any such payments hereunder to the extent withholding is required under Chapters 3, 4, 24 or 61 of the Code, and shall have no obligation to gross up any such payment. Nothing in this Section 3.05 shall impose any duty on the Trustee or Paying Agent other than as may be required pursuant to applicable law.
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The provisions of Clauses (a), (b), (c), (d) and (e) below shall apply only to Global Securities:
(a) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any, as may be specified as contemplated by Section 3.01, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (1) such Depositary has notified the Company that it is unwilling or unable to continue as Depositary for such Global Security or has ceased to be a clearing agency registered under the Exchange Act, and a successor Depositary is not appointed by the Company within 90 days after the Company’s receipt of such notice, (2) there shall have occurred and be continuing an Event of Default with respect to such Global Security and the Security Registrar has received a request from the Depositary to issue certificated securities in lieu of the Global Security, (3) the Company shall determine in its sole discretion that Securities of a series issued in global form shall no longer be represented by a Global Security, or (4) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.01, then in any such case, such Global Security may be exchanged by such Depositary for definitive Securities of the same series, of any authorized denomination and of a like aggregate principal amount and tenor, registered in the names of, and the transfer of such Global Security or portion thereof may be registered to, such Persons as such Depositary shall direct. If the Company designates a successor Depositary pursuant to Clause (1) above, such Global Security shall promptly be exchanged in whole for one or more other Global Securities registered in the name of the successor Depositary, whereupon such designated successor shall be the Depositary for such successor Global Security or Global Securities and the provisions of Clauses (a), (b), (c) and (d) of this Section shall continue to apply thereto.
(c) Subject to Clause (b) above and to such applicable provisions, if any, as may be specified as contemplated by Section 3.01, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(d) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section, Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
(e) Neither the Trustee nor any Security Registrar, Paying Agent or other agent of the Company, a Subsidiary Guarantor or the Trustee shall have any responsibility or liability for any actions taken or not taken by the Depositary, for the records of any such Depositary, including records in respect of beneficial ownership interests in respect of any such Global Security, for any transactions between such Depositary and any members or participants in the Depositary or other participant in such Depositary or between or among any such Depositary, any such member or participant in the Depositary or other participant and/or any holder or owner of a beneficial interest in such Global Security or for any transfers of beneficial interests in any such Global Security. Notwithstanding the foregoing, nothing herein shall prevent the Company, a Subsidiary Guarantor, the Trustee, or any Security Registrar, Paying Agent or other agent of the Company, a Subsidiary Guarantor or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or its nominee, as the case may be, or impair, as between the Depositary, members or participants of the Depositary and any other Person on whose behalf a member or participant of the Depositary may act, the operation of customary practices of such Persons governing the exercise of the rights of a beneficial holder of any Global Security.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, together with such security or indemnity as may be required by the Company or the Trustee to save each of them and hold any agent of either of them harmless, the Company shall execute and upon its request the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding and shall cancel and dispose of such mutilated security in accordance with its customary procedures.
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If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such mutilated, destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously Outstanding. If, after the delivery of such new Security, a bona fide purchaser of the original Security in lieu of which such new Security was issued presents for payment or registration such original Security, the Trustee shall be entitled to recover such new Security from the party to whom it was delivered or any party taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Company and the Trustee in connection therewith.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security, the Company and the Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of counsel to the Company and the fees and expenses of the Trustee and its counsel) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Company shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 1.06, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (b).
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(b) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.05, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
For each series of Securities, the Company shall, prior to Noon, New York City time, on each payment date for principal and premium, if any, and interest, if any, deposit with the Trustee money in immediately available funds sufficient to make cash payments due on the applicable payment date.
In the case of any Security which is converted after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Security whose Maturity is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or made available for payment) shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Security which is converted, interest whose Stated Maturity is after the date of conversion of such Security shall not be payable. Notwithstanding the foregoing, the terms of any Security that may be converted may provide that the provisions of this paragraph do not apply, or apply with such additions, changes or omissions as may be provided thereby, to such Security.
Section 3.08. Persons Deemed Owners.
Except as otherwise contemplated by Section 3.01 with respect to any series of Securities, prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Sections 3.05 and 3.07) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its behalf by a Depositary shall have any rights under this Indenture with respect to such Global Security, and such Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever. The Company, the Trustee and any agent of the Company or the Trustee may shall be entitled to deal with any depositary (including any Depositary), and any nominee thereof, that is the holder of any such Global Security for all purposes of this Indenture relating to such Global Security (including the payment of principal (and premium, if any) and interest, if any, and the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such Global Security) as the sole holder of such Global Security and shall have no obligations to the beneficial owners thereof. None of the Company, the Trustee nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 3.09. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and, if not already cancelled, shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee.
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No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in accordance with its customary procedures.
Section 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” or “ISIN” numbers (in addition to the other identification numbers printed on the Securities), if then in use, and, if so, the Trustee shall use such “CUSIP” or “ISIN” numbers in notices of redemption as a convenience to Holders; provided, however, that any such notice may state that no representation is made as to the correctness of such “CUSIP” or “ISIN” numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such “CUSIP” or “ISIN” numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” or “ISIN” numbers.
Section 3.12. Depositary.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary participants or indirect participants) other than to require delivery of such certificates and other documentation or evidence as are expressly required by this Indenture, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. Neither the Trustee or the Company nor any agent referenced in this Indenture shall have any responsibility or liability for any actions taken or not taken by the Depositary.
ARTICLE IV SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect with respect to Securities of any series (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), and the Trustee, at the expense of the Company, shall execute such instruments reasonably requested by the Company acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when
(a) either
(1) all such Securities theretofore authenticated and delivered (other than (i) such Securities which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) such Securities for whose payment money has theretofore been irrevocably deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee cancelled or for cancellation; or
(2) all such Securities not theretofore delivered to the Trustee as cancelled or for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
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(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be irrevocably deposited with the Trustee, as trust funds in trust for the purpose, an amount of money in the currency or currency units in which such Securities are payable sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee as cancelled or for cancellation, for principal and any premium and interest to the date of such deposit (in the case of such Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid, or otherwise made provision for the payment of, all other sums payable hereunder by the Company or the Subsidiary Guarantors with respect to such Securities; and
(c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to Securities of any series, the obligations of the Company to the Trustee under Section 6.07, the obligations of the Company to any Authenticating Agent under Section 6.14 and the right of the Trustee to resign under Section 6.10 shall survive, and, if money shall have been deposited with the Trustee pursuant to subclause (2) of Clause (a) of this Section, the obligations of the Trustee under Sections 4.02, 6.06, 7.01 and 10.02 and the last paragraph of Section 10.03 shall survive.
Section 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all money or other consideration deposited with the Trustee pursuant to Section 4.01 shall be held in trust (without liability for the payment of interest thereon or the investment thereof) and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee. All money deposited with the Trustee pursuant to Section 4.01 (and held by it or any Paying Agent) for the payment of such Securities subsequently converted into other property shall be returned to the Company upon Company Request. The Company may direct by a Company Order the investment of any money deposited with the Trustee as may be agreed in writing between the Company and the Trustee. Absent any instructions described in this Section, any money deposited with the Trustee shall remain un-invested.
ARTICLE V REMEDIES
Section 5.01. Events of Default.
“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security of that series at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series and continuance of such default for a period of 30 days; or
(d) default in the performance, or breach, of any covenant of the Company or the Subsidiary Guarantors in this Indenture (other than a default in the performance or the breach of a covenant which is specifically dealt with elsewhere in this Section or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
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(e) the entry by a court having jurisdiction in the premises of (1) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (2) a decree or order adjudging the Company bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or
(f) the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action;
(g) any of the Guarantees of the Securities by a Subsidiary Guarantor ceases to be in full force and effect or any of such Guarantees is declared to be null and void and unenforceable or any of such Guarantees is found to be invalid or any of the Subsidiary Guarantors denies its liability under its Guarantee (other than by reason of release of a Subsidiary Guarantor in accordance with the terms of this Indenture) and such event continues for 10 Business Days; or
(h) any other Event of Default provided as contemplated by Section 3.01 with respect to Securities of that series.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 5.01(e) or 5.01(f)) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 5.01(e) or 5.01(f) with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable. Upon payment of such amount, all obligations of the Company in respect of the payment of principal and interest of the Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if
(a) the Company or any Subsidiary Guarantor has paid or deposited with the Trustee a sum sufficient to pay all
(1) overdue interest on all Securities of that series,
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(2) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(3) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(4) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(b) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company and each Subsidiary Guarantor covenants that if
(a) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof, then the Company or such Subsidiary Guarantor will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company, any Subsidiary Guarantor or any other obligor upon the Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company, any Subsidiary Guarantor or any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, a Subsidiary Guarantor (or any other obligor upon the Securities), any of their property or any of their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand for overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect to the Securities and to file such other papers or documents as may be necessary or advisable and to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.7.
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No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery shall after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due to the Trustee under Section 6.07, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 5.06. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with respect to a series of Securities pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due to the Trustee, in each of its capacities under this Indenture, under Section 6.07;
Second: To the payment of the amounts then due and unpaid for principal of and any premium and interest on such series of Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively; and
Third: The balance, if any, to the Company, its successors or assigns, or to whomsoever may be lawfully entitled to receive such remainder or as a court of competent jurisdiction shall direct.
Section 5.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(b) the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered, and if requested, provided to the Trustee security or indemnity, satisfactory to the Trustee in its sole discretion, against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer and, if requested, provision of security or indemnity, has failed to institute any such proceeding; and
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(e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing itself of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders (it being further understood that the Trustee does not have an affirmative duty to ascertain whether or not any action the Holders direct it to take is unduly prejudicial to other Holders).
Section 5.08. Unconditional Right of Holders to Receive Principal Premium and Interest and to Convert Securities.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional to receive payment of the principal of and any premium and (subject to Sections 3.05 and 3.07) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date or, if the terms of such Security so provide, to convert such Security in accordance with its terms) and to institute suit for the enforcement of any such payment and, if applicable, any such right to convert, and such rights shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, each Subsidiary Guarantor, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Indenture or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series shall 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 Securities of such series, provided that:
(a) such direction shall not be in conflict with any rule of law or with this Indenture or with the Securities of such series;
(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction or with the Securities of such series; and
(c) The Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall determine that the proceeding so directed would involve the Trustee in personal liability or would otherwise be contrary to applicable law.
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Section 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default or Event of Default hereunder with respect to such series and its consequences, except a default
(a) in the payment of the principal of or any premium or interest on any Security of such series; or
(b) in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Company, a Subsidiary Guarantor or the Trustee.
Section 5.15. Waiver of Usury, Stay or Extension Laws.
The Company and each Subsidiary Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company and each Subsidiary Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenant that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE VI THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
(a) Except during the occurrence and continuance of an Event of Default with respect to any series of Securities,
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to the Securities of such series, and no implied covenants or obligations shall be read into this Indenture against the Trustee with respect to such series; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) In case an Event of Default with respect to any series of Securities has occurred and is continuing, the Trustee shall exercise with respect to the Securities of such series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise under the circumstances in the conduct of its own affairs; provided that if an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any of the Holders unless such Holders have offered, and if requested, provided, to the Trustee indemnity or security reasonably satisfactory to the Trustee against any loss, liability or expense that might be incurred by the Trustee in compliance with such request or direction.
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(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in aggregate principal amount of the Outstanding Securities of any series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series;
(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or to take, or omit to take, any action under this Indenture, to take any action at the request or direction of Holders, or in the exercise of any of its rights and powers;
(5) the Trustee shall not be liable in respect of any payment (as to the correctness of amount, entitlement to receive or any other matters related to payment) or notice effected by the Company, any Subsidiary Guarantor or any Paying Agent or any records maintained by any Securities Registrar with respect to any series of Securities;
(6) if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred, unless a Responsible Officer had actual knowledge of such event;
(7) in the absence of written investment direction from the Company, all cash received by the Trustee shall be placed in a non-interest bearing trust account, and in no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon or for losses incurred as a result of the liquidation of any such investment prior to its maturity date or the failure of the party directing such investments prior to its maturity date or the failure of the party directing such investment to provide timely written investment direction, and the Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such written investment direction from the Company;
(8) under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by any Securities of any series or any Guarantees thereof; and
(9) in the event that the Trustee is also acting as Securities Registrar, Paying Agent, Authenticating Agent or any other agent hereunder, the rights and protections afforded to the Trustee pursuant to this Article VI shall also be afforded to such Securities Registrar, Paying Agent, Authenticating Agent or other agent hereunder.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
Section 6.02. Notice of Defaults.
Upon the receipt by a Responsible Officer of the Trustee of written notice of any default with respect to the Securities of any series, the Trustee shall transmit, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, notice of all such uncured or unwaived defaults; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on Securities of any series or in the payment of any sinking or purchase fund installment with respect to such Securities, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of Securities of such series; and provided, further, however, that in the case of any default of the character specified in Section 5.01(d) with respect to the Securities of such series, no such notice to Holders of Securities shall be given until at least 90 days after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default.
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Section 6.03. Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) the Trustee may conclusively rely on and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties and need not investigate any fact or matter started therein;
(b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officer’s Certificate, an Opinion of Counsel, or both;
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered, and if requested, provided to the Trustee security or indemnity satisfactory to the Trustee in its sole discretion against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, approval, appraisal, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may, without obligation to do so, make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall choose to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company or a Subsidiary Guarantor, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any of the duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and to each agent, custodian and other Person employed to act hereunder;
(i) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(j) in no event shall the Trustee be responsible or liable for special, indirect, punitive, incidental, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
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(k) no provision herein shall be deemed to impose any duty or obligation on the Trustee to take or omit to take any action, or suffer any action to be taken or omitted, in the performance of their respective duties or obligations under this Indenture, or to exercise any right or power thereunder, to the extent that taking or omitting to take such action or suffering such action to be taken or omitted would violate applicable law binding upon them;
(l) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, pandemics, epidemics, recognized public emergencies, quarantine restrictions, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, and hacking, cyber attacks, or other use or infiltration of the Trustee’s technological infrastructure exceeding authorized access (it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to avoid and mitigate the effects of such occurrences and to resume performance as soon as practicable under the circumstances);
(m) the Trustee shall not be deemed to have notice or knowledge of any default or Event of Default unless written notice of any event which is in fact such a default shall have been received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the applicable series of Securities and this Indenture;
(n) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture; and
(o) the permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as obligation or duty to do so.
Section 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. Neither the Trustee nor any Authenticating Agent makes any representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
Section 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company or any Subsidiary Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company or a Subsidiary Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
Section 6.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee, in any capacity under this Indenture, from time to time, such compensation as shall be agreed in writing between the Company and the Trustee for all services rendered by the Trustee hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
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(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its gross negligence or willful misconduct as determined by a final non-appealable decision of a court of competent jurisdiction; and
(3) to indemnify the Trustee and any predecessor Trustee and its agents for, and to hold them harmless against, any and all loss, damage, claim including taxes (other than taxes based upon, measured by or determined by the income of the Trustee), liability, claim, action, suit, cost or expense of any kind and nature whatsoever incurred without gross negligence or willful misconduct on their part as determined by a final non-appealable order of a court of competent jurisdiction, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and expenses (including, but not limited to, reasonable attorney’s fees and expenses, court costs and expenses) of enforcing any of the provisions of this Indenture and defending themselves against or investigating any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder, under the Securities, and the Guarantees (whether asserted by any Holder, the Company, the Subsidiary Guarantors or otherwise). The obligations of the Company under this Section to compensate and indemnify the Trustee and each predecessor trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder.
To secure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any series on all money or property held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that series.
Without limiting any rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(e) or Section 5.01(f), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law.
The Trustee shall be under no obligation to institute any suit, or to undertake any proceeding under this Indenture, or to enter any appearance or in any way defend in any suit in which it may be made defendant, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers hereunder, until it shall be indemnified to its satisfaction against any and all costs and expenses, outlays and counsel fees and other anticipated disbursements, and against all liability except to the extent determined by a court of competent jurisdiction to have been caused solely by its own gross negligence or willful misconduct.
The provisions of this Section shall survive the satisfaction and discharge of this Indenture and the defeasance of the Securities or the earlier resignation or removal of the Trustee.
Section 6.08. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
Section 6.09. Corporate Trustee Required, Eligibility.
There shall at all times be one Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $150,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
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Section 6.10. Resignation and Removal, Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of the appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, by written notice delivered to the Trustee and to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after giving of such notice of removal, the removed Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If at any time:
(a) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(b) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company, any Subsidiary Guarantor or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (1) the Company or any Subsidiary Guarantor by a Board Resolution may remove the Trustee with respect to all Securities of which such Trustee acts as trustee, or (2) subject to Section 5.14, Holders of 10% in aggregate principal amount of Securities of any series who have been bona fide Holders of such Securities for at least six months may, on behalf of themselves and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of which such Trustee acts as trustee and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, Holders of 10% in aggregate principal amount of Securities of any series who have been bona fide Holders of such Securities of such series for at least six months or the Trustee may, on behalf of themselves and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
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The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges and reimbursement of its expenses (including reasonable fees and expenses of counsel and agents), if any, to which such retiring Trustee is otherwise legally entitled, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee at the expense of the Company all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (a) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (b) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (c) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be. No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation or entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or entity succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation or entity shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities; and in case at that time any Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force as is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
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Section 6.13. Preferential Collection of Claims Against Company or a Subsidiary Guarantor.
If and when the Trustee shall be or become a creditor of the Company or a Subsidiary Guarantor (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company or such Subsidiary Guarantor (or any such other obligor).
Section 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of and subject to the direction of the Trustee to authenticate and deliver Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation or entity organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $150,000. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation or entity into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation or entity resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation or entity succeeding to all or substantially all the corporate agency or corporate trust business of an Authenticating Agent, shall be the successor of the Authenticating Agent hereunder, provided such corporation or entity shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
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If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| Truist Bank, as Trustee | ||
| By: | , as | |
| Authenticating Agent | ||
| By: | ||
| Authorized Signatory | ||
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ARTICLE VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record Date, a list for each series of Securities, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that if and so long as the Trustee shall be the Security Registrar for the Securities of a series, no such list need be furnished with respect to such series of Securities.
Section 7.02. Preservation of Information; Communications to Holders.
Subject to compliance with its obligations pursuant to Section 312 of the Trust Indenture Act, the Trustee (i) shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar and (ii) may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or the Securities, and the corresponding rights and privileges of the Trustee shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company, any Subsidiary Guarantor, the Trustee nor any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 7.03. Reports by Trustee.
The Trustee shall transmit to Holders such reports, if any, concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange and automated quotation system, if any, upon which any Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee in writing when any Securities are listed on any stock exchange or automated quotation system.
Section 7.04. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the Company files the same with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificates).
Such information, documents, reports and summaries shall be deemed to have been (i) filed by the Company with the Trustee and (ii) transmitted by the Company to Holders, as the case may be, if the Company has filed such information, documents, reports and summaries with the Commission using the EDGAR filing system (or any successor filing system) and such reports are publicly available, in each case to the extent such filing with the EDGAR filing system (or any successor filing system) and the foregoing effect thereof, is not prohibited by the Act.
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Section 7.05. Calculation of Original Issue Discount.
Upon request of the Trustee or any Holder, the Company shall file with the Trustee or deliver to such Holder promptly at the end of each calendar year a written notice specifying the amount of original issue discount (including daily rates and accrual periods), if any, accrued on Outstanding Securities as of the end of such year.
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey, transfer or lease (as lessor) all or substantially all of its assets to any Person, unless:
(a)
(i) the Company is the surviving Person, in the case of a merger, or
(ii) the Person formed by such consolidation or into which the Company is merged or the Person which acquires or leases, all or substantially all of the assets of the Company (such Person, the “Successor Company”) is a corporation organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction (and treating any indebtedness that becomes an obligation of the Successor Company or any subsidiary of the Company as a result of such transaction as having been incurred by the Successor Company or such subsidiary at the time of such transaction), no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall exist and be continuing; and
(c) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 8.02. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of all or substantially all of the assets of the Company in accordance with Section 8.01, the Successor Company shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such Successor Company had been named as the Company herein, and thereafter, except in the case of a lease (where the Company is the lessor), the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE IX SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company or a Subsidiary Guarantor under this Indenture and the Securities or such Subsidiary Guarantor’s Guarantee and the assumption by such successor of the obligations of the Company or such Subsidiary Guarantor hereunder;
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(b) to add covenants of the Company or a Subsidiary Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or a Subsidiary Guarantor with regard to all or any series of Securities (and if any such surrender is to be made with regard to less than all series of Securities, stating that such surrender is expressly being made solely with regard to such series);
(c) to add Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series);
(d) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form;
(e) to add to, change or eliminate any of the provisions of this Indenture in respect of all or any series of Securities (and if such addition, change or elimination is to apply to less than all series of Securities, stating that it is expressly being made to apply solely with respect to such series); provided that any such addition, change or elimination (1) shall neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (2) shall become effective only when there is no such Security Outstanding;
(f) to secure the Securities or any guarantee with respect to any Securities;
(g) to establish the form or terms of Securities of any series hereunder;
(h) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11;
(i) to cure any ambiguity or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein;
(j) to make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this Clause (j) shall not adversely affect the interests of the Holders of any Securities of any Outstanding series in any material respect;
(k) to add one or more Subsidiary Guarantors with respect to the Securities as parties to this Indenture or to release Subsidiary Guarantors in accordance with the provisions of any supplemental indenture;
(l) to qualify this Indenture under the Trust Indenture Act;
(m) to supplement any provisions of this Indenture necessary to permit or facilitate the defeasance and discharge of any series of Securities; provided that such action does not adversely affect the interests of the Holders of Securities of such series or any other series;
(n) to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities may be listed or traded;
(o) to comply with the rules of any applicable Depositary;
(p) subject to any limitations established pursuant to Section 3.01, to provide for the issuance of additional Securities of any series; or
(q) to conform any provision of this Indenture, any supplemental indenture, one or more series of Securities or any related guarantees or security documents, if any, to the description of such Securities contained in the Company’s prospectus, prospectus supplement, offering memorandum or similar document with respect to the offering of the Securities of such series.
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Section 9.02. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company and the Subsidiary Guarantors, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture, or modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of such series affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of principal of or interest, if any, on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or change the Company’s obligation to maintain an office or agency for payment of Securities and the other matters specified herein, or the coin or currency in which any Security is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or alter the method of computation of interest;
(b) reduce the percentage in aggregate principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture;
(c) modify any of the provisions of this Section, Section 5.13 and Section 10.06 except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section and Section 10.06, or the deletion of this proviso, in accordance with the requirements of Sections 6.11 and 9.01(h);
(d) if the Securities of any series are convertible into or for any other securities or property of the Company, make any change that adversely affects in any material respect the right to convert any Security of such series (except as permitted by Section 9.01) or decrease the conversion rate or increase the conversion price of any such Security of such series, unless such decrease or increase is permitted by the terms of such Security. A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof; or
(e) make payments on the Securities of such series payable in currency other than as originally stated in such Security.
Section 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Officer’s Certificate and Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture, and is the legal, valid, and binding obligation of the Company and the Subsidiary Guarantors, as applicable. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture, for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
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Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
Section 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee, the Subsidiary Guarantors and the Company, to any such supplemental indenture may be prepared and executed by the Company or Subsidiary Guarantor and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. Failure to make a notation or issue a new Security or Guarantee shall not affect the validity and effect of any amendment, supplement or waiver.
ARTICLE X COVENANTS
Section 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and premium, if any, and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture. Principal, premium, if any, and interest will be considered paid on the date due if the Trustee or Paying Agent, if other than the Company or a Subsidiary thereof, holds as of Noon, New York City time, on the due date, money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest on the Securities then due.
Notwithstanding anything to the contrary contained in this Indenture, the Company or the Paying Agent may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America or other domestic or foreign taxing authorities from principal or interest payments hereunder.
Section 10.02. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Securities may be surrendered for conversion, and where notices and demands to or upon the Company or any Subsidiary Guarantor in respect of the Securities of that series, the Guarantees and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided that the Corporate Trust Office of the Trustee shall not be a place of service of legal process on the Company.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Except as otherwise specified with respect to a series of Securities as contemplated by Section 3.01, the Company hereby initially designates as the Place of Payment for each series of Securities to be the Corporate Trust Office of the Trustee, and initially appoints the Trustee as Paying Agent at its Corporate Trust Office as the Company’s office or agency for each such purpose in such city; provided that with respect to a Global Security, and except as may otherwise be specified for such Global Security as contemplated by Section 3.01, any payment, presentation, surrender of delivery effected pursuant to the Applicable Procedures of the Depositary for such Global Security shall be deemed to have been effected at the Place of Payment for such Global Securities in accordance with the provisions of this Indenture.
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Section 10.03. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to Noon, New York City time, on each due date of the principal of or any premium or interest on any Securities of that series, deposit (or, if the Company has deposited any trust funds with a trustee pursuant to Section 13.04(a), causes such trustee to deposit) with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest, if any, on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest, if any, on the Securities of that series; and (3) during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from an further liability with respect to such money.
Subject to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.04. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 135 days after the end of each of its fiscal years ending after the date hereof, an Officer’s Certificate, stating whether or not to the best knowledge of the signer thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Section 10.05. Existence.
Subject to Article VIII, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate (or equivalent) existence.
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Section 10.06. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 3.01 for Securities of such series, the Company may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 3.01(u), 9.01(b) or 9.01(g) for the benefit of the Holders of such series or in Article VIII or Sections 10.04 or 10.05, if before the time for such compliance the Holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
Section 10.07. Additional Subsidiary Guarantors
If, after the Issue Date, the Credit Agreement is or becomes guaranteed by any Subsidiary of the Company then, if such Subsidiary is not already a Subsidiary Guarantor, the Company shall cause such Subsidiary within 30 days after such Subsidiary guarantees such Credit Agreement to (a) execute and deliver to the Trustee a supplemental indenture pursuant to which such Subsidiary will fully and unconditionally guarantee all of the Company’s obligations under this Indenture and (b) deliver to the Trustee an Officer’s Certificate and Opinion of Counsel to the effect that (i) such supplemental indenture and Guarantee has been duly authorized, executed and delivered, (ii) such supplemental indenture and Guarantee constitutes a valid, binding and enforceable obligation of such Subsidiary, except insofar as enforcement thereof may be limited by bankruptcy, insolvency or similar laws and except insofar as enforcement thereof is subject to general principles of equity and (iii) such supplemental indenture complies with the terms of this Indenture.
ARTICLE XI REDEMPTION OF SECURITIES
Section 11.01. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for such Securities) in accordance with this Article.
Section 11.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be established in or pursuant to a Board Resolution or an Officer’s Certificate or in another manner specified as contemplated by Section 3.01 for such Securities. In case of any redemption at the election of the Company of the Securities of any series (including any such redemption affecting only a single Security), the Company shall, not less than 10 Business Days prior to the date the notice of redemption required by Section 11.04 is to be sent (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities (a) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (b) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction or condition.
Section 11.03. Selection by Trustee of Securities to Be Redeemed.
If less than all of the Securities of any series are to be redeemed, selection of the Securities for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair and, to the extent any securities to be redeemed are Global Securities, by the Depositary in accordance with its Applicable Procedures. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
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If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted during a selection of securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each Security Registrar in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 11.04. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed or otherwise in accordance with the Applicable Procedures not less than 10 nor more than 60 days prior to the Redemption Date (or within such period as otherwise specified as contemplated by Section 3.01 for the relevant Securities), to each Holder of Securities to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall identify the Securities to be redeemed (including CUSIP numbers, if any) and shall state:
(a) the Redemption Date;
(b) the Redemption Price (or the method of calculating such price);
(c) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date;
(e) the place or places where each such Security is to be surrendered for payment of the Redemption Price;
(f) that the redemption is for a sinking fund, if such is the case; and
(g) for any Securities that by their terms may be converted, the terms of conversion, the date on which the right to convert the Security to be redeemed will terminate and the place or places where such Securities may be surrendered for conversion.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s written request (which may be rescinded or revoked at any time prior the time at which the Trustee shall have given such notice to the Holders), by the Trustee in the name and at the expense of the Company.
Section 11.05. Deposit of Redemption Price.
On or prior to Noon, New York City time, on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date, other than Securities or portions of Securities called for redemption which are owned by the Company or a Subsidiary and have been delivered by the Company or such Subsidiary to the Trustee for cancellation. All money, if any, earned on funds held by the Paying Agent shall be remitted to the Company. In addition, the Paying Agent shall promptly return to the Company any money deposited with the Paying Agent by the Company in excess of the amounts necessary to pay the Redemption Price of, and accrued interest, if any, on, all Securities to be redeemed.
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If any Security called for redemption is converted, any money deposited with the Trustee or with any Paying Agent or so segregated and held in trust for the redemption of such Security shall (subject to any right of the Holder of such Security or any Predecessor Security to receive interest as provided in the last paragraph of Section 3.07 or in the terms of such Security) be paid to the Company upon Company Request or, if then held by the Company, shall be discharged from such trust.
Section 11.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07; provided further that, unless otherwise specified as contemplated by Section 3.01, if the Redemption Date is after a Regular Record Date and on or prior to the Interest Payment Date, the accrued and unpaid interest shall be payable to the Holder of the redeemed Securities registered on the relevant Regular Record Date.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII SINKING FUNDS
Section 12.01. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 3.01 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional sinking fund payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.
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Section 12.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (b) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 12.03. Redemption of Securities for Sinking Fund.
Not less than 45 days (or shorter period as shall be satisfactory to the Trustee) prior to each sinking fund payment date for any Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 12.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01. Company’s Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 13.02 or Section 13.03 applied to any Securities or any series of Securities, as the case may be, designated pursuant to Section 3.01 as being defeasible pursuant to such Section 13.02 or 13.03, in accordance with any applicable requirements provided pursuant to Section 3.01 and upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution, Officer’s Certificate or in another manner specified as contemplated by Section 3.01 for such Securities.
Section 13.02. Defeasance and Discharge.
Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, the Company and each Subsidiary Guarantor shall be deemed to have been discharged from its obligations with respect to such Securities and Guarantees as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company and the Subsidiary Guarantors shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and Guarantees and to have satisfied all its other obligations under such Securities, the Guarantees and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute such instruments reasonably requested by the Trustee acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.04 and as more fully set forth in Section 13.05, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (b) the Company’s and the Subsidiary Guarantors’ obligations with respect to such Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 13.03 applied to such Securities.
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Section 13.03. Covenant Defeasance.
Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, (a) the Company and each of the Subsidiary Guarantors shall be released from its obligations under Sections 7.04, 8.01, 10.04, 10.05, 10.07 and any covenants provided pursuant to Section 3.01(u), 9.01(b) or 9.01(g) for the benefit of the Holders of such Securities and (b) the occurrence of any event specified in Section 5.01(d) or 5.01(g) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities and Guarantees, the Company and the Subsidiary Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities and Guarantees shall be unaffected thereby.
Section 13.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 13.02 or 13.03 to any Securities or any series of Securities, as the case may be:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) in the case of any series of Securities the payment on which may only be made in legal coin or currency of the United States, U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than Noon, New York City time, on the due date of any payment, money in an amount, or (C) such other obligations or arrangements as may be specified as contemplated by Section 3.01 with respect to such Securities, or (D) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants or investment bankers, in either case expressed in a written certification thereof to be delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, (1) the principal of and any premium and interest on such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities or any Redemption Date established pursuant to clause (i) below, and (2) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(b) In the event of an election to have Section 13.02 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(c) In the event of an election to have Section 13.03 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel that shall confirm that the Holders of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
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(d) The Company shall have delivered to the Trustee an Officer’s Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(e) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Before or after a deposit, the Company may make arrangements satisfactory to the Trustee for the redemption of Securities at a future date in accordance with Article XI.
Section 13.05. Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 13.04 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums, due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities; provided that the Trustee shall be entitled to charge any such tax, fee or other charge to such Holder’s account.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 13.04 with respect to any Securities which are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
Section 13.06. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture, such Securities and the Guarantees from which the Company and the Subsidiary Guarantors have been discharged or released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 13.05 with respect to such Securities in accordance with this Article; provided, however, that (a) if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust and (b) unless otherwise required by any legal proceeding or any order or judgment of any court or governmental authority, the Trustee or Paying Agent shall return all such money and U.S. Government Obligations to the Company promptly after receiving a written request therefor at any time, if such reinstatement of the Company’s obligations has occurred and continues to be in effect.
48
ARTICLE XIV GUARANTEES
Section 14.01. Guarantees.
The Subsidiary Guarantors, by execution of this Indenture, jointly and severally, guarantee to each Holder and to the Trustee (i) the due and punctual payment of the principal of, premium, if any, and interest on each Security, when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and interest on the Securities, to the extent lawful, and the due and punctual payment of all other obligations and due and punctual performance of all obligations of the Company to the Holders or the Trustee all in accordance with the terms of such Security and this Indenture and (ii) in the case of any extension of time of payment or renewal of any Securities or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, at stated maturity, by acceleration or otherwise. Each Subsidiary Guarantor, by execution of this Indenture, agrees that, subject only to the applicable provisions, if any, of Section 14.02, its obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any such Security or this Indenture, any failure to enforce the provisions of any such Security or this Indenture, any waiver, modification or indulgence granted to the Company with respect thereto by the Holder of such Security, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or such Subsidiary Guarantor.
Each Subsidiary Guarantor hereby waives diligence, presentment, demand for payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to any such Security or the Indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged as to any such Security except by payment in full of the principal thereof and interest thereon. Each Subsidiary Guarantor hereby agrees that, as between such Subsidiary Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article V for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such obligations as provided in Article V, such obligations (whether or not due and payable) shall forthwith become due and payable by each Subsidiary Guarantor for the purpose of this Guarantee.
The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Trustee or any Holder under the Guarantees.
Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 14.01.
Section 14.02. Limitation on Liability.
Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the obligations guaranteed hereunder by each Subsidiary Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering this Indenture, as it relates to such Subsidiary Guarantor, voidable under applicable federal or state law relating to fraudulent conveyance or fraudulent transfer.
Section 14.03. Execution and Delivery of Guarantees.
The Guarantees to be endorsed on the Securities shall be in the form set forth in Exhibit B. Each of the Subsidiary Guarantors hereby agrees to execute its Guarantee in such form, to be endorsed on each Security authenticated and delivered by the Trustee.
Each Guarantee shall be executed on behalf of each respective Subsidiary Guarantor by any one of such Subsidiary Guarantor’s Chief Executive Officer, Chief Financial Officer, Vice Presidents or any other authorized signatories for any Subsidiary Guarantors that are set forth in a Board Resolution of such Subsidiary Guarantor. The signature of any or all of these officers on the Guarantee may be manual or facsimile.
A Guarantee bearing the signatures of individuals who were at any time the proper officers of a Subsidiary Guarantor shall bind such Subsidiary Guarantor, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of the Security on which such Guarantee is endorsed or did not hold such offices at the date of such Guarantee.
Each Guarantee shall be registered, transferred, exchanged and cancelled, and shall be held in definitive or global form, in the same manner and together with, the Security to which it relates, in accordance with Article III.
49
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee endorsed thereon on behalf of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby jointly and severally agrees that its Guarantee set forth in Section 14.01 shall remain in full force and effect notwithstanding any failure to endorse a Guarantee on any Security.
Section 14.04. Guarantors May Consolidate, Etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities or any Guarantee shall prevent (i) any consolidation or merger of a Subsidiary Guarantor with or into the Company or a Subsidiary Guarantor, (ii) the merger of a wholly owned Subsidiary with and into a Subsidiary Guarantor, (iii) the merger of a non-wholly owned Subsidiary into a Subsidiary Guarantor if such Subsidiary Guarantor is the surviving entity, or (iv) any sale or conveyance of the assets of a Subsidiary Guarantor as an entirety or substantially as an entirety or the capital stock of a Subsidiary Guarantor to the Company or a Subsidiary Guarantor.
Section 14.05. Release of Guarantors.
The Guarantee of a Subsidiary Guarantor shall automatically be released from all obligations under its Guarantee endorsed on the Securities and under this Article XIV without need for any further act or the execution or delivery or any document: (i) upon the sale or other disposition (including by way of consolidation or merger) of all of the capital stock of such Subsidiary Guarantor to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary; provided such sale or disposition is not prohibited by this Indenture; (ii) upon the sale or disposition of all or substantially all of the assets of such Subsidiary Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or a Restricted Subsidiary; provided such sale or disposition is not prohibited by this Indenture; (iii) upon the liquidation or dissolution of such Subsidiary Guarantor; provided that no Default or Event of Default shall occur as a result thereof or has occurred and is continuing; (iv) upon Defeasance or Covenant Defeasance in accordance with Article XIII or satisfaction and discharge in accordance with Article IV; or (v) upon such Subsidiary Guarantor ceasing to guarantee or to be an obligor under the Credit Agreement. Upon delivery by the Company to the Trustee of an Officers’ Certificate and Opinion of Counsel to the effect that such transaction was made in accordance with the provisions hereof, the Trustee shall execute any documents reasonably required in order to evidence the release of such Subsidiary Guarantor from its obligations under its Guarantee endorsed on the Securities and under this Article XIV.
Section 14.06. Successors and Assigns.
This Article XIV shall be binding upon each Subsidiary Guarantor and its successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture and in the Securities shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions of this Indenture.
Section 14.07. No Waiver, Etc.
Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any right, power or privilege under this Article XIV shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may have under this Article XIV at law, in equity, by statute or otherwise.
Section 14.08. Modification, Etc..
No modification, amendment or waiver of any provision of this Article, nor the consent to any departure by a Subsidiary Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on a Subsidiary Guarantor in any case shall entitle such Subsidiary Guarantor or any other guarantor to any other or further notice or demand in the same, similar or other circumstances.
50
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
| HEICO CORPORATION | ||
| By: | ||
| Name: | ||
| Title: | ||
| SUBSIDIARY GUARANTORS | ||
| 16-1741 Property, Inc. | ||
| 3 McCrea Property Company, LLC | ||
| 34 FREEDOM COURT, CORP. | ||
| 3D PLUS U.S.A., INC. | ||
| 60 SEQUIN LLC | ||
| 8929 FULLBRIGHT PROPERTY, LLC | ||
| ACCURATE METAL MACHINING, INC. | ||
| ACTION RESEARCH CORPORATION | ||
| AERODESIGN, INC. | ||
| AEROELT, LLC | ||
| AEROSPACE & COMMERCIAL TECHNOLOGIES, LLC | ||
| AIRCRAFT TECHNOLOGY, INC. | ||
| ANALOG MODULES, INC. | ||
| APEX HOLDING CORP. | ||
| APEX MICROTECHNOLOGY, INC. | ||
| ASTRO PROPERTY, LLC | ||
| ASTROSEAL PRODUCTS MFG. CORPORATION | ||
| BAY EQUIPMENT CORP. | ||
| BLUE AEROSPACE LLC | ||
| CARBON BY DESIGN LLC | ||
| CARBON BY DESIGN CORPORATION | ||
| CHARTER ENGINEERING, INC. | ||
| CONNECTRONICS CORP. | ||
| CONXALL CORPORATION | ||
| CSI AEROSPACE, INC. | ||
| DB CONTROL CORP. | ||
| DECAVO LLC | ||
| DIELECTRIC SCIENCES, INC. | ||
| DUKANE SEACOM, INC. | ||
| ENGINEERING DESIGN TEAM, INC. | ||
| FUTURE AVIATION, INC. | ||
| HARTER AEROSPACE, LLC | ||
| HEICO AEROSPACE CORPORATION | ||
| HEICO AEROSPACE PARTS CORP. | ||
| HEICO EAST CORPORATION | ||
| HEICO ELECTRONIC TECHNOLOGIES CORP. | ||
| HEICO Flight Support Corp. | ||
| HEICO PARTS GROUP, INC. | ||
| HEICO REPAIR GROUP AEROSTRUCTURES, LLC | ||
| HEICO REPAIR, LLC | ||
| HETC I, LLC | ||
| HETC II CORP. | ||
| HETC III, LLC | ||
| HETC IV, LLC | ||
| HETC V, LLC | ||
| HFSC III CORP. | ||
| HFSC IV CORP. | ||
| HFSC V, LLC | ||
| HFSC VI, LLC | ||
| HNW BUILDING CORP. | ||
| HNW 2 BUILDING CORP. | ||
| HVT GROUP, INC. | ||
| INERTIAL AIRLINE SERVICES, INC. | ||
| IRCAMERAS LLC | ||
| IRONWOOD ELECTRONICS, INC. | ||
| JET AVION CORPORATION | ||
| JETSEAL, INC. | ||
| LEADER TECH, INC. | ||
| LPI INDUSTRIES CORPORATION | ||
| LUCIX CORPORATION | ||
| LUMINA POWER, INC. | ||
51
| MCCLAIN INTERNATIONAL, INC. | ||
| MIDWEST MICROWAVE SOLUTIONS, INC. | ||
| NIACC-AVITECH TECHNOLOGIES INC. | ||
| NORTHWINGS ACCESSORIES CORPORATION | ||
| OPTICAL DISPLAY ENGINEERING, INC. | ||
| OPTICAL DISPLAY ENGINEERING, LLC | ||
| PRIME AIR, LLC | ||
| QUELL CORPORATION | ||
| RADIANT POWER CORP. | ||
| RADIANT POWER IDC, LLC | ||
| RADIANT-SEACOM REPAIRS CORP. | ||
| Ramona Research, Inc. | ||
| REINHOLD HOLDINGS, INC. | ||
| REINHOLD INDUSTRIES, INC. | ||
| RESEARCH ELECTRONICS INTERNATIONAL, L.L.C. | ||
| ROBERTSON FUEL SYSTEMS, LLC | ||
| SANTA BARBARA INFRARED, INC. | ||
| SEAL DYNAMICS LLC | ||
| SEAL Q CORP. | ||
| SENSOR SYSTEMS, INC. | ||
| SENSOR TECHNOLOGY ENGINEERING, LLC | ||
| SIERRA MICROWAVE TECHNOLOGY, LLC | ||
| SOLID SEALING TECHNOLOGY, INC. | ||
| SPECIALITY SILICONE PRODUCTS, INC. | ||
| SUNSHINE AVIONICS LLC | ||
| SWITCHCRAFT HOLDCO, INC. | ||
| SWITCHCRAFT, INC. | ||
| THERMAL ENERGY PRODUCTS, INC. | ||
| THERMAL STRUCTURES, INC. | ||
| TRAD TESTS & RADIATIONS, INC. | ||
| TTT CUBED, INC. | ||
| TURBINE KINETICS, INC. | ||
| 26 WARD HILL PROPERTY, LLC | ||
| BREIDON, LLC | ||
| FLIGHT MICROWAVE CORPORATION | ||
| HFSC VII, LLC | ||
| HFSC VIII, LLC | ||
| INTELLIGENT DEVICES, LLC | ||
| MASTIFF DESIGN, INC. | ||
| PACIWAVE, INC. | ||
| PIONEER INDUSTRIES LLC | ||
| PYRAMID SEMICONDUCTOR CORP | ||
| R.H. LABORATORIES, INC. | ||
| RIDGE ENGINEERING, LLC | ||
| RIDGE HOLDCO, LLC | ||
| ROCKY MOUNTAIN HYDROSTATICS, LLC | ||
| THE BECHDON COMPANY, LLC | ||
| TRANSFORMATIONAL SECURITY, LLC | ||
| TSID HOLDINGS, LLC | ||
| HFSC XI CORP. | ||
| CAMTRONICS, LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
| HEICO AEROSPACE HOLDINGS CORP. | ||
| By: | ||
| Name: | ||
| Title: | ||
| AEROANTENNA TECHNOLOGY, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| TRUIST BANK, as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature Page to Indenture]
Exhibit A
[FORM OF SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DEPOSITARY”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DEPOSITARY, TO NOMINEES OF DEPOSITARY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
HEICO Corporation
[ ]% Senior Note due 20[ ]
|
No. |
$ | |
| CUSIP NO. |
HEICO Corporation, duly organized and existing under the laws of the State of Florida (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum listed on the Schedule of Increases or Decreases in Global Security attached hereto on [ ], 20[ ] and to pay interest thereon from [ ], 20[ ] or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semiannually in arrears on [ ] and [ ] in each year, commencing [ ], 20[ ] at the rate of [ ]% per annum, until the principal hereof is paid or duly provided for, provided, however, that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of [ ]% per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or duly provided for. The interest so payable and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the [ ] and [ ] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this Security shall be made at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that, at the option of the Company, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
A-1
IN WITNESS WHEREOF, the Company has caused this Security to be duly executed.
| HEICO CORPORATION | |||
| By: | |||
| Name: | |||
| Title: | |||
| Attest: | |||
| By: | |||
| Name: | |||
| Title: | |||
TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
This is one of the Seurities referred to in the within
mentioned Indenture.
| Dated: |
TRUIST BANK, as TRUSTEE
| By: | ||
| Authorized Signatory |
A-2
Form of Reverse of Security
This Security is one of a duly authorized issue of Securities of the Company designated as [ ]% Senior Notes due [ ] (herein called the “Securities”), limited in aggregate principal amount on the Issue Date to $[ ] issued and to be issued under an Indenture, dated as of [ ], 20[ ] (herein called the “Indenture,” which term shall have the meaning assigned to it in such instrument), among the Company, the Guarantors named therein and Truist Bank, as Trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantors named therein, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered.
The terms of the Securities include those expressly set forth in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). Terms defined in the Indenture and not defined herein have the meanings ascribed thereto in the Indenture. Notwithstanding anything to the contrary herein, the Securities are subject to all such terms, and Holders of Securities are referred to the Indenture and the Trust Indenture Act for a statement of such terms.
This Security is redeemable at the Company’s option, in whole or in part, at any time on or after [ ], 20[ ], at the Redemption Prices (expressed as percentages of principal amount) set forth below, plus accrued and unpaid interest, if any, thereon to the Redemption Date (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), if redeemed during the twelve month period beginning on [ ] of each of the years indicated below:
Year | Redemption Price | |||||
| % | ||||||
The Indenture contains provisions for legal defeasance at any time of the entire indebtedness of this Security or for covenant defeasance of certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default shall occur and be continuing, there may be declared due and payable the principal of, premium, if any, and accrued and unpaid interest, if any, on all of the outstanding Securities, in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
A-3
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities, the Holders of not less than 25.0% in aggregate principal amount of the Securities at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity satisfactory to the Trustee and the Trustee shall not have received from the Holders of a majority in aggregate principal amount of Securities at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to certain suits described in the Indenture, including any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein (or, in the case of redemption, on or after the Redemption Date).
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company, which is designated as the Corporate Trust Office of the Trustee in North Carolina, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal amount, shall be issued to the designated transferee or transferees.
This Security is issuable only in registered form without coupons in denominations of $2,000 and any integral multiples of $1,000 thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities of like tenor of a different authorized denomination, as requested by the Holder surrendering the same. As provided in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security shall be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day year comprised of twelve 30-day months.
As provided in the Indenture and subject to certain limitations therein set forth, the obligations of the Company under the Indenture and this Security are guaranteed pursuant to Guarantees endorsed hereon as provided in the Indenture. Each Holder, by holding this Security, agrees to all of the terms and provisions of said Guarantees. The Indenture provides that each Guarantor shall be released from its Guarantee upon compliance with certain conditions.
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of laws principles thereof.
A-4
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
|
Date: |
Your Signature: | |||
Sign exactly as your name appears on the other side of this Security.
A-5
[TO BE ATTACHED TO GLOBAL SECURITY]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $[ ]. The following increases or decreases in this Global Security have been made:
|
Date of Exchange |
Amount of decrease in Principal Amount of this Global Security |
Amount of increase in Principal Amount of this Global Security |
Principal amount of this Global Security following such decrease or increase |
Signature of authorized signatory of Trustee or Securities Custodian | ||||
A-6
Exhibit B
[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]
GUARANTEE
Each of the undersigned guarantors (each a “Guarantor” and together, the “Guarantors”), which term includes any successor under the Indenture (the “Indenture”) referred to in the Security upon which this notation is endorsed, hereby unconditionally and irrevocably guarantees on a senior basis, jointly and severally with each other Guarantor of the Securities, to each Holder and to the Trustee and its successors and assigns (a) the full and prompt payment (within applicable grace periods) of principal of and interest on the Securities when due, whether at maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the Company under the Indenture and the Securities and (b) the full and prompt performance within applicable grace periods of all other obligations of the Company under the Indenture and the Securities, subject to certain limitations set forth in the Indenture (all the foregoing being hereinafter collectively called the “Guarantee Obligations”). The Guarantor further agrees that the Guarantee Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor, and that such Guarantor shall remain bound under Article XIV of the Indenture notwithstanding any extension or renewal of any Guarantee Obligation. Capitalized terms used herein have the meanings assigned to them in the Indenture unless otherwise indicated.
Subject to the terms of the Indenture, this Guarantee shall be binding upon the Guarantor and its successors and assigns and shall inure to the benefit of the successors and assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by any Holder or the Trustee, the rights and privileges herein conferred upon that party shall automatically extend to and be vested in such transferee or assignee, all subject to the terms and conditions hereof.
This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this Guarantee is noted shall have been executed by the Trustee under the Indenture by the signature of one of its authorized signatories.
Notwithstanding any other provision of the Indenture or this Guarantee, under the Indenture and this Guarantee the maximum aggregate amount of the obligations guaranteed by the Guarantor shall not exceed the maximum amount that can be guaranteed without rendering the Indenture or this Guarantee, as it relates to such Guarantor, voidable under applicable federal or state law relating to fraudulent conveyance or fraudulent transfer. This Guarantee shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws provisions thereof.
[Signature page follows]
B-1
| EACH OF THE GUARANTORS LISTED ON SCHEDULE A | ||
| By: | ||
| Name: | ||
| By: | ||
| By: | ||
B-2
SCHEDULE A
|
Guarantor |
Place of Formation | |
B-3
Exhibit 5.1
 |
Akerman LLP Three Brickell City Centre 98 Southeast Seventh Street Suite 1100 Miami, FL 33131
T: 305 374 5600 F: 305 374 5095 |
July 17, 2023
HEICO Corporation
3000 Taft Street
Hollywood, Florida 33021
| Re: | Heico Corporation – Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as counsel to Heico Corporation, a Florida corporation (the “Company”), and the subsidiary guarantors of the Company set forth in the Registration Statement (as defined below) (the “Subsidiary Guarantors” and, together with the Company, the “Registrants”), in connection with the preparation and filing by the Registrants of a registration statement on Form S-3 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”) relating to the offering from time to time, pursuant to Rule 415 under the Securities Act, (I) by the Company of (a) Common Stock, par value $0.01 per share (the “Common Stock”); (b) Class A Common Stock , par value $0.01 per share (the “Class A Common Stock”); (c) Preferred Stock, par value $0.01 per share (the “Preferred Stock”); (d) debt securities of the Company (the “Debt Securities”), which may be senior or subordinated and issued pursuant to an indenture and any supplemental indenture (collectively, the “Indenture”) among the Company, the Subsidiary Guarantors, if applicable, and the trustee to be named therein (the “Trustee”); (e) depositary shares of the Company (the “Depositary Shares”) each representing a fractional interest in a share of a particular class or series of Preferred Stock and evidenced by a depositary receipt (the “Depositary Receipts”), which may be issued pursuant to a deposit agreement among the Company, a depositary to be named therein (the “Depositary”) and the holders from time to time of the Depositary Receipts issued thereunder (the “Deposit Agreement”); (f) warrants to purchase Debt Securities or equity securities, including Common Stock, Class A Common Stock or Preferred Stock (the “Warrants”), which may be issued pursuant to a warrant agreement between the Company and a warrant agent to be named therein (the “Warrant Agent”) (the “Warrant Agreement”); and (g) units comprised of one or more Debt Securities, Guarantees (as defined below), Common Stock, Preferred Stock and Warrants in any combination (the “Units”) to be issued under one or more unit agreements to be entered into among the Company, a bank or trust company, as unit agent (the “Unit Agent”), and the holders from time to time of the Units (each such unit agreement, a “Unit Agreement”), (II) by the Subsidiary Guarantors of guarantees of the Debt Securities (the “Guarantees”), and (III) by the selling shareholders to be named in a prospectus supplement, post-effective amendment, or in filings we make with the Commission under the Securities Exchange Act of 1934, as amended, that are incorporated by reference into the Registration Statement (the “Selling Shareholders”) of shares of Common Stock and shares of Class A Common Stock (the “Shareholders’ Shares”). The Common Stock, Class A Common Stock, Preferred Stock, Debt Securities, Guarantees, Depositary Shares, Warrants, Units and the Shareholders’ Shares offered pursuant to the Registration Statement are collectively referred to as the “Securities.” The offering of the Securities will be as set forth in the prospectus forming a part of the Registration Statement (the “Prospectus”), as supplemented by one or more supplements to the Prospectus (each supplement, a “Prospectus Supplement”). We refer herein to the Subsidiary Guarantors listed on Annex I hereto, each of which is formed or organized under the laws of the States of Florida, Delaware, California, Colorado, Connecticut, Georgia, Illinois, Maryland, Massachusetts, Nevada, New York, Ohio and Tennessee as the “Specified Subsidiary Guarantors.”
This opinion letter is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. This opinion letter is limited to the matters expressly stated herein and no opinions are to be inferred or may be implied beyond the opinions expressly so stated.
HEICO Corporation
July 17, 2023
Page 2
In connection with this opinion letter, we have examined the organizational documents of the Company and of the Subsidiary Guarantors, and such corporate records, documents, instruments, certificates of public officials as to the Company and the Subsidiary Guarantors, and such questions of law as we have deemed necessary for the purpose of rendering the opinions set forth herein. We have also examined the Registration Statement, Prospectus, and the form of indenture filed with the Registration Statement. With your permission, we have made and relied upon the following assumptions, without any investigation or inquiry by us, and our opinions expressed below are subject to, and limited and qualified by the effect of, such assumptions: (a) the authenticity of original documents and the genuineness of all signatures; (b) the conformity to the originals of all documents submitted to us as copies; (c) the legal capacity of all natural persons to take all actions required of such person in connection with the Registration Statement; (d) the truth, accuracy, authenticity and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates (including without limitation any certificate or other document issued by a public authority and all official public records) we have reviewed; (e) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the applicable Prospectus Supplement; (f) a definitive purchase, underwriting or similar agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; (g) a sufficient number of shares of Common Stock, Class A Common Stock and Preferred Stock will be authorized and available for issuance and the consideration therefor will not be less than the par value of the shares of the Common Stock, Class A Common Stock and Preferred Stock; (h) any Debt Securities and Guarantees that may be issued will be issued in a form that complies with the Indenture to be entered into in connection with the issuance of such Debt Securities and will be manually signed or countersigned, as the case may be, by duly authorized officers of the trustee named therein; (i) any Securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered will be duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption or exercise; and (j) there shall not have occurred any change in law affecting the validity or enforceability of such Securities. We have further assumed that the terms of the Securities will have been established so as not to, and that the execution and delivery by the parties thereto and the performance of such parties’ obligations under, the Securities will not, violate, conflict with or constitute a default under (i) any agreement or instrument to which the parties thereto are subject, (ii) any law, rule or regulation to which the parties thereto are subject, (iii) any judicial or regulatory order or decree of any governmental authority or (iv) any consent, approval, license, authorization or validation of, or filing, recording or registration with any governmental authority. As to any facts material to the opinions expressed herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company, the Subsidiary Guarantors and others.
When used in this opinion letter, the term “applicable laws” means Florida laws, rules and regulations that a Florida counsel exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Company, and the Subsidiary Guarantors; provided, however, that applicable laws does not include any law, rule or regulation that is applicable to the Company or the Subsidiary Guarantors solely because such law, rules or regulation is part of a regulatory regime applicable to such Registrant or any of its affiliates due to the specific assets or business of such party or affiliate. With respect to the opinions set forth in paragraphs 5 through 9 below, we are opining as to the internal laws of the State of New York. Further, with respect to the Specified Subsidiary Guarantors we are opining with respect to the General Corporation Law of the State of California, the California Revised Uniform Limited Liability Company Act, the Colorado Corporations and Associations Act, the Colorado Limited Liability Company Act, the Connecticut Business Corporation Act, the Connecticut Uniform Limited Liability Company Act, the General Corporation Law of the State of Delaware, the Delaware Limited Liability Company Act, the Georgia Business Corporation Code, the Business Corporation Act of 1983 of the State of Illinois, the Limited Liability Company Act of the State of Maryland, the Massachusetts Business Corporation Act, the Nevada Business Corporation Act, the New York Business Corporation Law, the General Corporation Law of the State of Ohio, the Tennessee Business Corporation Act and the Tennessee Revised Limited Liability Company Act. We neither express nor imply any opinions with respect to any other laws or the laws of any other jurisdiction or the United States of America. For purposes of this opinion letter, we assume that the Securities will be issued in accordance with all applicable state securities or blue sky laws.
Based upon and subject to the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:
1. The Company is a Florida corporation that is validly existing and in good standing under Florida law.
2. Each of the Specified Subsidiary Guarantors is a corporation or limited liability company, as applicable, validly existing under the jurisdiction of its incorporation or formation, and its corporate or limited liability company status, as applicable, is active or in good standing, as applicable. For purposes of the opinion in this paragraph 2, we have relied exclusively upon the applicable certificate of status or certificate of good standing.
HEICO Corporation
July 17, 2023
Page 3
3. With respect to any shares of Common Stock or Class A Common Stock to be offered by the Company pursuant to the Registration Statement, including shares of Common Stock or Class A Common Stock issuable upon conversion of, exchange of or exercise of any Securities, or any Shareholders’ Shares to be offered by the Selling Shareholders (collectively, the “Offered Common Stock”), (i) when the Registration Statement, as amended (including all necessary post-effective amendments), has become effective under the Securities Act, (ii) when an appropriate Prospectus Supplement with respect to the Offered Common Stock has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (iii) if the Offered Common Stock is to be sold pursuant to a firm commitment underwritten offering, when the underwriting agreement with respect to the Offered Common Stock has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) when the board of directors of the Company (the “Board”), including any appropriate committee appointed thereby, and appropriate officers of the Company, have taken all necessary corporate action to approve the issuance of the Offered Common Stock, the consideration to be received therefor and related matters, and (v) the Offered Common Stock has been duly delivered to the purchasers thereof against payment of the agreed upon consideration therefor, provided that the consideration therefor is not less than $0.01 per share of Common Stock or Class A Common Stock, the Offered Common Stock, when issued and sold in accordance with the applicable underwriting agreement, or any other duly authorized, executed and delivered valid and binding agreement, will be validly issued, fully paid and nonassessable.
4. With respect to the shares of any series of Preferred Stock to be offered by the Company pursuant to the Registration Statement, including shares of Preferred Stock issuable upon conversion of, exchange of or exercise of any Securities (the “Offered Preferred Stock”), (i) when the Registration Statement, as amended (including all necessary post-effective amendments), has become effective under the Securities Act, (ii) when an appropriate Prospectus Supplement with respect to the Offered Preferred Stock has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (iii) if the Offered Preferred Stock is to be sold pursuant to a firm commitment underwritten offering, when the underwriting agreement with respect to the Offered Preferred Stock has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) when the Board, including any appropriate committee appointed thereby, and appropriate officers of the Company, have taken all necessary corporate action to approve the issuance, sale and terms of the Offered Preferred Stock, the consideration to be received therefor and related matters, including the adoption of any required certificate of designation for the Offered Preferred Stock in accordance with the applicable provisions of the Florida Business Corporation Act (the “Certificate of Designation”), (v) when the filing of the Certificate of Designation with the Florida Department of State has duly occurred, and (vi) the Offered Preferred Stock has been duly delivered to the purchasers thereof against payment of the agreed upon consideration therefor, provided that the consideration therefor is not less than $0.01 per share of Preferred Stock, the Offered Preferred Stock, when issued and sold in accordance with the applicable underwriting agreement, or any other duly authorized, executed and delivered valid and binding agreement, will be validly issued, fully paid and nonassessable.
5. With respect to any series of Debt Securities offered by the Company pursuant to the Registration Statement (the “Offered Debt Securities”), (i) when the Registration Statement, as amended (including all necessary post-effective amendments), has become effective under the Securities Act and the Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), (ii) when an appropriate Prospectus Supplement with respect to the Offered Debt Securities has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (iii) if the Offered Debt Securities are to be sold pursuant to a firm commitment underwritten offering, when an underwriting agreement or purchase agreement with respect to the Offered Debt Securities has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) when the Board, including any appropriate committee appointed thereby, and appropriate officers of the Company, have taken all necessary corporate action to approve the issuance, sale and terms of the Offered Debt Securities, the consideration to be received therefor and related matters, and (v) when the Offered Debt Securities have been duly executed and authenticated in accordance with the provisions of the Indenture relating to such Offered Debt Securities and duly delivered to the purchasers thereof against payment of the agreed upon consideration therefor, the Offered Debt Securities, when issued and sold or otherwise distributed in accordance with the Indenture relating to such Offered Debt Securities and the applicable underwriting agreement or purchase agreement, if any, or any other duly authorized, executed and delivered valid and binding agreement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms.
6. With respect to any Guarantee by any of the Subsidiary Guarantors with respect to a series of Offered Debt Securities issued pursuant to the Registration Statement (collectively, the “Offered Guarantees”), (i) when the Registration Statement, as amended (including all necessary post-effective amendments), has become effective under the Securities Act and the Indenture has been qualified under the Trust Indenture Act, (ii) when an appropriate Prospectus Supplement with respect to the Offered Debt Securities and related Offered Guarantees has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (iii) if the Offered Debt Securities and related Offered Guarantees are to be sold pursuant to a firm commitment underwritten offering, when an underwriting agreement or purchase agreement with respect to the Offered Debt Securities and related Offered Guarantees has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) when the Board and the board of directors or other applicable governing body of each applicable Subsidiary Guarantor of the Company, including any appropriate committee appointed thereby, and appropriate officers, members or managers of the Company and each Subsidiary Guarantor, as applicable, have taken all necessary corporate action to approve the issuance, sale and terms of the Offered Debt Securities and the Offered Guarantees, the consideration to be received therefor and related matters, and (v) when the Offered Debt Securities and related Offered Guarantees have been duly executed and authenticated in accordance with the provisions of the Indenture relating to such Offered Debt Securities and the related Offered Guarantees, and duly delivered to the purchasers thereof against payment of the agreed upon consideration therefor, each Offered Guarantee, when issued and sold in accordance with the Indenture relating to such Offered Debt Securities to be entered into in connection with the issuance of such Offered Debt Securities and the related Offered Guarantees, and the applicable underwriting agreement or purchase agreement, if any, or any other duly authorized, executed and delivered valid and binding agreement, will be a valid and binding obligation of the applicable Subsidiary Guarantor, enforceable against the applicable Subsidiary Guarantor in accordance with their respective terms.
HEICO Corporation
July 17, 2023
Page 4
7. With respect to any Depositary Shares to be offered by the Company pursuant to the Registration Statement (the “Offered Depositary Shares”), (i) when the Registration Statement, as amended (including all necessary post-effective amendments), has become effective under the Securities Act, (ii) when an appropriate Prospectus Supplement with respect to the Offered Depositary Shares has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (iii) if the Offered Depositary Shares are to be sold pursuant to a firm commitment underwritten offering, when the underwriting agreement with respect to the Offered Depositary Shares has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) any applicable Deposit Agreement has been duly authorized, executed and delivered by the Company and any Depositary named therein has been duly named by all necessary corporate action, (v) when the Board, including any appropriate committee appointed thereby, and appropriate officers of the Company, have taken all necessary corporate action to approve the issuance, sale and terms of the Offered Depositary Shares, the consideration to be received therefor and related matters, and (vi) when the Depositary has duly issued the Depositary Receipts evidencing the Depositary Shares against deposit of the Preferred Shares in respect thereof in accordance with the Deposit Agreement; and the Depositary Receipts have been duly executed, issued and delivered by one of the Depositary’s authorized officers in accordance with the Deposit Agreement and the applicable underwriting or other agreement against payment therefor, the Depositary Shares will be duly and validly issued.
8. With respect to any Warrants to be offered by the Company pursuant to the Registration Statement (the “Offered Warrants”), (i) when the Registration Statement, as amended (including all necessary post-effective amendments), has become effective under the Securities Act, (ii) when an appropriate Prospectus Supplement with respect to the Offered Warrants has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (iii) if the Offered Warrants are to be sold pursuant to a firm commitment underwritten offering, when the underwriting agreement with respect to the Offered Warrants has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) any applicable warrant agreement has been duly authorized, executed and delivered by the Company and any warrant agent named therein has been duly named by all necessary corporate action, (v) when the Board, including any appropriate committee appointed thereby, and appropriate officers of the Company, have taken all necessary corporate action to approve the issuance, sale and terms of the Offered Warrants, the consideration to be received therefor and related matters, and (vi) when the Offered Warrants have been duly executed, issued and delivered to the purchasers thereof against payment of the agreed upon consideration therefor and authenticated by any warrant agent, the Offered Warrants, when issued and sold in accordance with the applicable underwriting agreement, warrant agreement, or any other duly authorized, executed and delivered valid and binding agreement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms.
9. With respect to any Units to be offered by the Company pursuant to the Registration Statement (the “Offered Units”), (i) when the Registration Statement, as amended (including all necessary post-effective amendments), has become effective under the Securities Act, (ii) when an appropriate Prospectus Supplement with respect to the Offered Units has been prepared, delivered and filed in compliance with the Securities Act and the applicable rules and regulations thereunder, (iii) if the Offered Units are to be sold pursuant to a firm commitment underwritten offering, when the underwriting agreement with respect to the Offered Units has been duly authorized, executed and delivered by the Company and the other parties thereto, (iv) when the Board, including any appropriate committee appointed thereby, and appropriate officers of the Company, have taken all necessary corporate action to approve the issuance, sale and terms of the Offered Units, the consideration to be received therefor and related matters, and (v) when the Offered Units have been duly executed, issued and delivered to the purchasers thereof against payment of the agreed upon consideration therefor and authenticated by all other parties thereto, the Offered Units, when issued and sold in accordance with the applicable underwriting agreement, unit agreement, or any other duly authorized, executed and delivered valid and binding agreement, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms.
HEICO Corporation
July 17, 2023
Page 5
The opinions set forth above are subject to (a) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally, (b) general equitable principles (whether considered in a proceeding in equity or at law), (c) an implied covenant of good faith and fair dealing, (d) provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars, (e) limitations by any governmental authority that limit, delay or prohibit the making of payments outside the United States, and (f) generally applicable laws that (i) provide for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver, (ii) limit the availability of a remedy under certain circumstances where another remedy has been elected, (iii) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves gross negligence, recklessness, willful misconduct or unlawful conduct, (iv) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange, (v) may limit the enforceability of provisions providing for compounded interest, imposing increased interest rates or late payment charges upon delinquency in payment or default or providing for liquidated damages or for premiums upon acceleration or (vi) limit the waiver of rights under usury laws. With respect to opinion 6, we also note that in the absence of an enforceable waiver or consent, a guarantor may be discharged if: (i) action by the holder of the debt securities impairs the value of any collateral securing guaranteed debt to the detriment of the guarantor, (ii) the holder of the debt securities elects remedies for default that impair the subrogation rights of the guarantor against the Company, (iii) the guaranteed debt or debt securities are materially modified, or (iv) the holder of the debt securities otherwise takes action under the debt documents that materially prejudices the guarantor.
With respect to opinion 6, we have, without any investigation on our part, assumed the accuracy, and to the extent necessary in connection with the opinions contained herein, relied upon the opinions dated as of the date hereof furnished to you by: (i) Ballard Spahr LLP, as to matters of Arizona law and Minnesota law; (ii) Hartzog Conger Cason, as to matters of Iowa law; (iii) Devine, Millimet & Branch, Professional Association, as to matters of New Hampshire law; and (iv) Stoel Rives LLP, as to matters of Oregon law (collectively, the “Local Counsel Opinions”), and our opinions regarding the Subsidiary Guarantors which are the subject of the Local Counsel Opinions are subject to the same qualifications and limitations with respect to matters of Arizona, Iowa, Minnesota, New Hampshire and Oregon law as are expressed in each such Local Counsel Opinion.
We assume no obligation to update or supplement this opinion letter if any applicable laws change after the date of this opinion letter or if we become aware after the date of this opinion letter of any facts, whether existing before or arising after the date hereof, that might change the opinions expressed above. Without limiting the generality of the foregoing, we neither express nor imply any opinion regarding the contents of the Registration Statement or the Prospectus, other than as expressly stated herein with respect to the Securities to be issued pursuant to the Registration Statement.
This opinion letter is furnished in connection with the filing of the Registration Statement and may not be relied upon for any other purpose without our prior written consent in each instance. No portion of this letter may be quoted, circulated or referred to in any other document for any other purpose without our prior written consent.
We hereby consent to the filing of this opinion letter with the Securities and Exchange Commission in connection with the filing of the Registration Statement referred to above. We also hereby consent to the reference to our firm under the heading “Legal Matters” in the prospectus which forms a part of the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission issued thereunder.
| Very truly yours, | |
| /s/ Akerman LLP | |
| AKERMAN LLP |
HEICO Corporation
July 17, 2023
Page 6
ANNEX I
SPECIFIED SUBSIDIARY GUARANTORS
| Name of Specified Subsidiary Guarantor | State of Incorporation | |
| 16-1741 PROPERTY, INC. | Florida | |
| 26 WARD HILL PROPERTY, LLC | Florida | |
| 3 MCCREA PROPERTY COMPANY, LLC | Florida | |
| 34 FREEDOM COURT, CORP. | Florida | |
| 3D PLUS U.S.A., INC. | Delaware | |
| 60 SEQUIN LLC | Connecticut | |
| 8929 FULLBRIGHT PROPERTY, LLC | California | |
| ACCURATE METAL MACHINING, INC. | Ohio | |
| ACTION RESEARCH CORPORATION | Florida | |
| AEROANTENNA TECHNOLOGY, INC. | California | |
| AERODESIGN, INC. | Tennessee | |
| AEROELT, LLC | Florida | |
| AEROSPACE & COMMERCIAL TECHNOLOGIES, LLC | Florida | |
| AIRCRAFT TECHNOLOGY, INC. | Florida | |
| ANALOG MODULES, INC. | Florida | |
| APEX HOLDING CORP. | Delaware | |
| ASTRO PROPERTY, LLC | Connecticut | |
| ASTROSEAL PRODUCTS MFG. CORPORATION | Connecticut | |
| BAY EQUIPMENT CORP. | Delaware | |
| BLUE AEROSPACE LLC | Florida | |
| BREIDON, LLC | Maryland | |
| CAMTRONICS, LLC | Florida | |
| CARBON BY DESIGN CORPORATION | Florida | |
| CARBON BY DESIGN LLC | California | |
| CHARTER ENGINEERING, INC. | Florida | |
| CONNECTRONICS CORP. | Florida |
HEICO Corporation
July 17, 2023
Page 7
| CONXALL CORPORATION | Illinois | |
| CSI AEROSPACE, INC. | Florida | |
| DB CONTROL CORP. | Florida | |
| DIELECTRIC SCIENCES, INC. | Massachusetts | |
| DUKANE SEACOM, INC. | Florida | |
| FLIGHT MICROWAVE CORPORATION | California | |
| FUTURE AVIATION, INC. | Florida | |
| HARTER AEROSPACE, LLC | Florida | |
| HEICO AEROSPACE CORPORATION | Florida | |
| HEICO AEROSPACE HOLDINGS CORP. | Florida | |
| HEICO AEROSPACE PARTS CORP. | Florida | |
| HEICO EAST CORPORATION | Florida | |
| HEICO ELECTRONIC TECHNOLOGIES CORP. | Florida | |
| HEICO FLIGHT SUPPORT CORP. | Florida | |
| HEICO PARTS GROUP, INC. | Florida | |
| HEICO REPAIR GROUP AEROSTRUCTURES, LLC | Florida | |
| HEICO REPAIR, LLC | Florida | |
| HETC I, LLC | Florida | |
| HETC II CORP. | Florida | |
| HETC III, LLC | Florida | |
| HETC IV, LLC | Florida | |
| HETC V, LLC | Florida | |
| HFSC III CORP. | Florida | |
| HFSC IV CORP. | Florida | |
| HFSC V, LLC | Florida | |
| HFSC VI, LLC | Florida | |
| HFSC VII, LLC | Florida | |
| HFSC VIII, LLC | Florida | |
| HFSC XI CORP. | Florida | |
| HNW 2 BUILDING CORP. | Florida |
HEICO Corporation
July 17, 2023
Page 8
| HNW BUILDING CORP. | Florida | |
| HVT GROUP, INC. | Delaware | |
| INERTIAL AIRLINE SERVICES, INC. | Ohio | |
| INTELLIGENT DEVICES, LLC | Delaware | |
| IRCAMERAS LLC | Florida | |
| JET AVION CORPORATION | Florida | |
| JETSEAL, INC. | Delaware | |
| LEADER TECH, INC. | Florida | |
| LPI INDUSTRIES CORPORATION | Florida | |
| LUCIX CORPORATION | California | |
| LUMINA POWER, INC. | Florida | |
| MASTIFF DESIGN, INC. | Florida | |
| MCCLAIN INTERNATIONAL, INC. | Georgia | |
| NIACC-AVITECH TECHNOLOGIES INC. | Florida | |
| NORTHWINGS ACCESSORIES CORPORATION | Florida | |
| OPTICAL DISPLAY ENGINEERING, INC. | Florida | |
| OPTICAL DISPLAY ENGINEERING, LLC | Florida | |
| PACIWAVE, INC. | California | |
| PIONEER INDUSTRIES LLC | Delaware | |
| PRIME AIR, LLC | Florida | |
| PYRAMID SEMICONDUCTOR CORP | Florida | |
| QUELL CORPORATION | Colorado | |
| RADIANT POWER CORP. | Florida | |
| RADIANT POWER IDC, LLC | Florida | |
| RADIANT-SEACOM REPAIRS CORP. | Florida | |
| RAMONA RESEARCH, INC. | California | |
| REINHOLD HOLDINGS, INC. | Delaware | |
| REINHOLD INDUSTRIES, INC. | Delaware | |
| RESEARCH ELECTRONICS INTERNATIONAL, L.L.C. | Tennessee |
HEICO Corporation
July 17, 2023
Page 9
| RIDGE ENGINEERING, LLC | Maryland | |
| RIDGE HOLDCO, LLC | Florida | |
| ROCKY MOUNTAIN HYDROSTATICS, LLC | Colorado | |
| SANTA BARBARA INFRARED, INC. | California | |
| SEAL DYNAMICS LLC | Florida | |
| SEAL Q CORP. | Florida | |
| SENSOR SYSTEMS, INC. | Nevada | |
| SENSOR TECHNOLOGY ENGINEERING, LLC | Florida | |
| SIERRA MICROWAVE TECHNOLOGY, LLC | Delaware | |
| SOLID SEALING TECHNOLOGY, INC. | New York | |
| SPECIALITY SILICONE PRODUCTS, INC. | New York | |
| SUNSHINE AVIONICS LLC | Florida | |
| SWITCHCRAFT HOLDCO, INC. | Delaware | |
| SWITCHCRAFT, INC. | Illinois | |
| THE BECHDON COMPANY, LLC | Maryland | |
| THERMAL ENERGY PRODUCTS, INC. | California | |
| THERMAL STRUCTURES, INC. | California | |
| TRAD TESTS & RADIATIONS, INC. | Florida | |
| TRANSFORMATIONAL SECURITY, LLC | Maryland | |
| TSID HOLDINGS, LLC | Florida | |
| TTT CUBED, INC. | California | |
| TURBINE KINETICS, INC. | Florida |
Exhibit 5.2
July 17, 2023
HEICO Corporation
3000 Taft Street
Hollywood, Florida 33021
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as local counsel to R.H. Laboratories, Inc., a New Hampshire corporation (the “Company”) in connection with that certain registration statement on Form S-3 filed with the Securities and Exchange Commission (the “Commission”) on the date hereof (the “Registration Statement”) by HEICO Corporation (“Parent”), the Company and certain other subsidiaries of Parent (collectively, the “Subsidiary Guarantors”) under the Securities Act of 1933, as amended (the “Act”). The Registration Statement registers the offering from time to time, pursuant to Rule 415 under the Act, (I) by the Parent of (a) Common Stock, par value $0.01 per share (the “Common Stock”); (b) Class A Common Stock, par value $0.01 per share (the “Class A Common Stock”); (c) Preferred Stock, par value $0.01 per share (the “Preferred Stock”); (d) debt securities of the Parent (the “Debt Securities”), which may be senior or subordinated and issued pursuant to an indenture and any supplemental indenture (collectively, the “Indenture”) among the Parent, the Subsidiary Guarantors, if applicable, and the trustee to be named therein (the “Trustee”); (e) depositary shares of the Parent (the “Depositary Shares”) each representing a fractional interest in a share of a particular class or series of Preferred Stock and evidenced by a depositary receipt (the “Depositary Receipts”), which may be issued pursuant to a deposit agreement among the Parent, a depositary to be named therein (the “Depositary”) and the holders from time to time of the Depositary Receipts issued thereunder (the “Deposit Agreement”); (f) warrants to purchase Debt Securities or equity securities, including Common Stock, Class A Common Stock or Preferred Stock (the “Warrants”), which may be issued pursuant to a warrant agreement between the Parent and a warrant agent to be named therein (the “Warrant Agent”) (the “Warrant Agreement”); and (g) units comprised of one or more Debt Securities, Guarantees (as defined below), Common Stock, Preferred Stock and Warrants in any combination (the “Units”) to be issued under one or more unit agreements to be entered into among the Parent, a bank or trust company, as unit agent (the “Unit Agent”), and the holders from time to time of the Units (each such unit agreement, a “Unit Agreement”), (II) by the Subsidiary Guarantors of guarantees of the Debt Securities (the “Guarantees”), and (III) by the selling shareholders to be named in a prospectus supplement, post-effective amendment, or in filings to be made with the Commission under the Securities Exchange Act of 1934, as amended, that are incorporated by reference into the Registration Statement (the “Selling Shareholders”) of shares of Common Stock and shares of Class A Common Stock (collectively, the “Shareholders’ Shares”). The Common Stock, Class A Common Stock, Preferred Stock, Debt Securities, Guarantees, Depositary Shares, Warrants, Units and the Shareholders’ Shares offered pursuant to the Registration Statement are collectively referred to as the “Securities.” The offering of the Securities will be as set forth in the prospectus forming a part of the Registration Statement (the “Prospectus”), as may be supplemented from time to time by one or more supplements to the Prospectus (each such supplement, a “Prospectus Supplement”).
HEICO Corporation
July 17, 2023
Page 2
We are rendering this opinion at the request of the Company and, accordingly, we express no opinion herein with respect to any other party, including but not limited to, Parent or any other Subsidiary Guarantor. This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act. This opinion letter is limited to the matters expressly stated herein and no opinions are to be inferred or may be implied beyond the opinions expressly so stated. In connection with issuing this opinion, we have reviewed and relied upon executed copies of each of the following documents:
| (1) | the Registration Statement and the Prospectus; |
| (2) | the form of Indenture for the Debt Securities; |
| (3) | the Articles of Incorporation of the Company, filed with the New Hampshire Secretary of State’s Office on September 7, 2001 (the “Articles of Incorporation”); |
| (4) | the Amended and Restated By-laws of the Company effective as of December 12, 2022; |
| (5) | certain resolutions adopted by the Board of Directors of the Company relating to the Registration Statement and related matters dated as of July 17, 2023; |
| (6) | the Certificate to Counsel, dated as of the date hereof, provided by an authorized officer of the Company certifying that the documents referred to in (3), (4) and (5) above are true, accurate and complete, and that none of them have been further amended or rescinded as of the date hereof; and | |
| (7) | the Certificate of Good Standing with respect to the Company issued by the Secretary of State of the State of New Hampshire issued June 29, 2023 (the “Certificate of Good Standing”). |
To render this opinion, we have made the investigation described herein. We have not independently verified information obtained from third persons, except as specifically set forth herein. We have undertaken no independent investigation to determine the existence or absence of any fact, and no inference as to our knowledge of the existence or absence of such fact should be drawn from our representation of the Company. We have made no other investigation as to factual matters other than the examination described herein.
We are members of the Bar of the State of New Hampshire, and we express no opinion as to matters governed by laws of states other than the laws of the State of New Hampshire, and we do not opine as to the application or effect of the laws of any jurisdiction other than the State of New Hampshire.
In rendering the opinions set forth herein, we have relied, without investigation, on each of the following assumptions: (a) the legal capacity of each natural person to take all actions required of such person in connection with the Registration Statement and in connection with executing any document; (b) the genuineness of each signature, the completeness of each document submitted to us, the authenticity of each document reviewed by us as an original, the conformity to the original of each document reviewed by us as a copy and the authenticity of the original of each document received by us as a copy; (c) the due organization and legal existence of each party to the Registration Statement (other than the Company); (d) the entity power of each party to the Registration Statement (other than the Company) to execute, deliver and perform its obligations as described in the Registration Statement and to do each other act done or to be done by such party; (e) the authorization, execution and delivery by each party (other than the Company) of each document executed and delivered or to be executed and delivered in connection with the Registration Statement by such party; (f) as to matters of fact, the completeness, correctness and accuracy of all facts and representations set forth in the Registration Statement and in all certificates of public officials and officers of the Company reviewed in preparation of this opinion; (g) the exact legal name of the Company is as set forth in the Articles of Incorporation; and (h) the continued accuracy of the Certificate of Good Standing through and including the date of this opinion.
HEICO Corporation
July 17, 2023
Page 3
In rendering this opinion, we have assumed that the Company will duly authorize the issuance of the Guarantees by all requisite corporate action, that the Indenture providing for the Guarantees will have been duly authorized, executed and delivered by the Company in accordance with any applicable underwriting agreement and that the Guarantees will conform to the terms of the Indenture and to the description of such instruments in the Registration Statement, the Prospectus and any applicable Prospectus Supplement. We have assumed the authorization, execution and delivery by the Company of each document executed and delivered or to be executed and delivered in connection with the Registration Statement by the Company.
Based upon and subject to the foregoing, and in reliance thereon and subject to the limitations, qualifications and exceptions set forth herein, it is our opinion that:
(1) Based solely on the Certificate of Good Standing, the Company is a New Hampshire corporation that is validly existing and in good standing under New Hampshire law.
(2) The Company has the corporate power to execute, deliver and perform its obligations under the Guarantees.
The opinions expressed herein represent the judgment of this law firm as to certain legal matters, but such opinions are not guarantees or warranties and should not in any respect be construed as such. This opinion has been prepared for use solely in connection with the Registration Statement. This opinion speaks as of the date hereof. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters. We assume no obligation to inform you of any facts, circumstances, events or changes in the law that may after the date hereof be brought to our attention that may alter, affect or modify the opinions expressed herein. This opinion letter is an expression of our professional judgment following our review of the legal issues expressly addressed herein in accordance with customary practice governing opinion letters in transactions such as those contemplated by the Registration Statement. By rendering our opinion, we neither become an insurer or guarantor of such expression of our professional judgment nor guarantee the outcome of any legal dispute that may arise out of the transactions contemplated by the Registration Statement.
We hereby consent to reliance on this opinion letter and the opinions provided herein by the law firm Akerman LLP solely in connection with the legal opinion provided by that law firm that is included as an exhibit to the Registration Statement.
We hereby consent to the reference to this firm under the caption “Legal Matters” in the Prospectus and to the inclusion of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act, or the rules and regulations of the Securities and Exchange Commission thereunder.
Except as expressly set forth above, this opinion, in whole or in part, is not to be used, circulated, relied upon, quoted or otherwise referred to, for any other purpose, nor may copies be filed with, or furnished or delivered to any government agency or other person or entity without our prior written consent.
Very truly yours,
| /s/ DEVINE, MILLIMET & BRANCH, | |
| PROFESSIONAL ASSOCIATION |
| DEVINE, MILLIMET & BRANCH, | |
| PROFESSIONAL ASSOCIATION |
Exhibit 5.3
 | ||
 |
| |
July 17, 2023
HEICO
Corporation
3000 Taft Street
Hollywood, Florida 33021
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as (i) Arizona counsel to Robertson Fuel Systems, L.L.C., an Arizona limited liability company (“Robertson”), Apex Microtechnology, Inc., an Arizona corporation (“Apex”, and together with Robertson, the “Arizona Opinion Parties”) and (ii) Minnesota counsel to Ironwood Electronics, Inc., a Minnesota corporation (“Ironwood”, and together with the Arizona Opinion Parties, the “Opinion Parties”), subsidiaries of HEICO Corporation, a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-3, as filed by the Company and certain subsidiaries of the Company (collectively, the “Subsidiary Guarantors”) with the United States Securities and Exchange Commission as of the date set forth above, and as further amended or supplemented from time to time after the date hereof (the “Registration Statement”), under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement covers the offer and sale. from time to time, pursuant to Rule 415 under the Securities Act, (I) by the Company of (a) Common Stock, par value $0.01 per share (the “Common Stock”); (b) Class A Common Stock , par value $0.01 per share (the “Class A Common Stock”); (c) Preferred Stock, par value $0.01 per share (the “Preferred Stock”); (d) debt securities of the Company (the “Debt Securities”), which may be senior or subordinated and issued pursuant to an indenture and any supplemental indenture (collectively, the “Indenture”) among the Company, the Subsidiary Guarantors, if applicable, and the trustee to be named therein (the “Trustee”); (e) depositary shares of the Company (the “Depositary Shares”) each representing a fractional interest in a share of a particular class or series of Preferred Stock and evidenced by a depositary receipt (the “Depositary Receipts”), which may be issued pursuant to a deposit agreement among the Company, a depositary to be named therein (the “Depositary”) and the holders from time to time of the Depositary Receipts issued thereunder (the “Deposit Agreement”); (f) warrants to purchase Debt Securities or equity securities, including Common Stock, Class A Common Stock or Preferred Stock (the “Warrants”), which may be issued pursuant to a warrant agreement between the Company and a warrant agent to be named therein (the “Warrant Agent”) (the “Warrant Agreement”); and (g) units comprised of one or more Debt Securities, Guarantees (as defined below), Common Stock, Preferred Stock and Warrants in any combination (the “Units”) to be issued under one or more unit agreements to be entered into among the Company, a bank or trust company, as unit agent (the “Unit Agent”), and the holders from time to time of the Units (each such unit agreement, a “Unit Agreement”), (II) by the Subsidiary Guarantors of guarantees of the Debt Securities (the “Guarantees”), and (III) by the selling shareholders to be named in a prospectus supplement, post-effective amendment, or in filings the Company makes with the Commission under the Securities Exchange Act of 1934, as amended, that are incorporated by reference to the Registration Statement (the “Selling Shareholders”) of shares of Common Stock and shares of Class A Common Stock (collectively, the “Shareholders’ Shares”).
HEICO Corporation
July 17, 2023
Page 2
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. This opinion letter is limited to the matters expressly stated herein and no opinions are to be inferred or may be implied beyond the opinions expressly so stated.
In connection with issuing this opinion, we have reviewed originals or copies of the following documents:
| (i) | the form of Indenture for Debt Securities (the “Indenture”); |
| (ii) | the Registration Statement; |
| (iii) | a Certificate of Good Standing issued by the Arizona Corporation Commission, with respect to Robertson, dated June 29, 2023 (the “Robertson Certificate of Good Standing”); |
| (iv) | a Certificate of Good Standing issued by the Arizona Corporation Commission, with respect to Apex, dated June 29, 2023 (the “Apex Certificate of Good Standing”); |
| (v) | a Certificate of Good Standing issued by the Minnesota Secretary of State, with respect to Ironwood, dated June 30, 2023 (the “Ironwood Certificate of Good Standing”); |
| (vi) | a copy of Robertson’s: (i) Articles of Organization, together with any amendments thereto as certified to us on the date hereof by a duly appointed officer of Robertson (the “Robertson Articles of Organization”), and (ii) Fourth Amended and Restated Operating Agreement, together with any amendments thereto as certified to us on the date hereof by a duly appointed officer of Robertson (the “Robertson Operating Agreement”; and together with the Robertson Articles of Organization, the “Robertson Organizational Documents”), in each case as attached to the Certificate to Counsel dated as of the date hereof provided to the undersigned counsel by Carlos L. Macau, Jr., Treasurer of each of the Opinion Parties (the “Certificate to Counsel”); |
HEICO Corporation
July 17, 2023
Page 3
| (vii) | a copy of Apex’s: (i) Articles of Incorporation, together with any amendments thereto as certified to us on the date hereof by a duly appointed officer of Apex (the “Apex Articles of Incorporation”), and (ii) Bylaws, as certified to us on the date hereof by a duly appointed officer of Apex (the “Apex Bylaws”; and together with the Apex Articles of Incorporation, the “Apex Organizational Documents”), in each case as attached to the Certificate to Counsel; |
| (viii) | a copy of Ironwood’s: (i) Second Amended and Restated Articles of Incorporation, together with any amendments thereto as certified to us on the date hereof by a duly appointed officer of Ironwood (the “Ironwood Articles of Incorporation”), and (ii) Amended and Restated Bylaws, as certified to us on the date hereof by a duly appointed officer of Ironwood (the “Ironwood Bylaws”; and together with the Ironwood Articles of Incorporation, the “Ironwood Organizational Documents”), in each case as attached to the Certificate to Counsel; and |
| (ix) | certain resolutions adopted by the board of directors or managers, as applicable of the Opinion Parties relating to the Registration Statement and related matters certified to us on the date hereof by a duly appointed officer of each Opinion Party (the “Resolutions”); and |
| (x) | the Certificate to Counsel. |
We have also examined the originals or copies, certified or otherwise identified to our satisfaction, of such records of each of the Opinion Parties, such agreements, certificates of public officials, certificates of officers or other representatives of the Opinion Parties and others, and such other documents, certificates and records as we have deemed necessary or appropriate to form the basis for the opinions set forth herein.
In delivering this opinion letter, we have relied, without investigation, on each of the following assumptions: (a) the legal capacity of each natural person to take all actions required of each such person in connection with the Registration Statement; (b) the genuineness of each signature, the completeness of each document submitted to us, the authenticity of each document reviewed by us as an original, the conformity to the original of each document reviewed by us as a copy and the authenticity of the original of each document received by us as a copy; (c) the legal existence of each party to the Registration Statement other than the Opinion Parties; (d) the entity power of each party to the Registration Statement (other than the Opinion Parties) to execute, deliver and perform the Registration Statement and to do each other act done or to be done by such party; (e) the authorization, execution and delivery by each party (other than the Opinion Parties) of each document executed and delivered or to be executed and delivered in connection with the Registration Statement by such party; (f) as to matters of fact, the truthfulness of the representations made in the certificates of public officials and officers of the Opinion Parties; (g) the Resolutions have not been modified, amended, revoked or rescinded; and (h) each of (i) the Robertson Organizational Documents, (ii) the Apex Organizational Documents, and (iii) the Ironwood Organizational Documents (collectively, the “Organizational Documents”) have not been modified, amended, revoked or rescinded.
HEICO Corporation
July 17, 2023
Page 4
On the basis of the foregoing, and subject to the qualifications, assumptions, and limitations set forth herein, we are of the opinion that:
| 1. | Based solely on the Robertson Certificate of Good Standing, Robertson is a limited liability company validly organized and in good standing under the laws of the State of Arizona. Based solely on the Apex Certificate of Good Standing, Apex is a corporation validly organized and in good standing under the laws of the State of Arizona. Based solely on the Ironwood Certificate of Good Standing, Ironwood is a corporation validly existing and in good standing under the laws of the State of Minnesota. |
| 2. | As for any Guarantee issued by any of the Opinion Parties, when (i) the issuance and terms of any Guarantee by each of the Opinion Parties and the terms of the offering thereof have been (A) duly established in conformity with the applicable Indenture or any supplemental indenture thereto, so as not to violate applicable law, or rule or regulation thereunder applicable to such Opinion Party, affect the enforceability of such Guarantee or result in a default under or breach of any agreement or instrument binding on such Opinion Party, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over such Opinion Party and (B) duly authorized by proper action of the Board of Directors or the Board of Managers, as the case may be, of such Opinion Party in accordance with its Organizational Documents, as the case may be, and (ii) such Guarantee has been duly executed, authenticated, issued and delivered in accordance with any applicable underwriting agreement, the applicable Indenture and any supplemental indenture thereto and issued and sold as contemplated in the Registration Statement, such Opinion Party will have the corporate or limited liability company, as the case may be, power and authority to execute, deliver and perform its obligations under the applicable Indenture, any supplemental indenture and the Guarantee, to the extent it is a party thereto, and will have taken the required steps to authorize the execution and delivery of the applicable Indenture and the Guarantees to which it is a party under (x) the State of Arizona, with respect to each of the Arizona Opinion Parties, and (y) the State of Minnesota, with respect to Ironwood. |
This opinion is limited to the laws of the State of Arizona, in the case of the Arizona Opinion Parties, and the State of Minnesota, in the case of Ironwood, each as in effect on the date hereof. We express no opinion as to the laws of any other jurisdiction, of the United States of America, or to any state “Blue Sky” laws and regulations, and no opinion regarding the statutes, administrative decisions, rules and regulations or requirements of any county, municipality or subdivision or other local authority of any jurisdiction.
HEICO Corporation
July 17, 2023
Page 5
This opinion speaks only as of the date hereof and we assume no obligations to update or supplement this opinion letter if any applicable laws change after the date of this opinion letter or if we become aware after the date of this opinion of any facts, whether existing before or arising after the date hereof, that might change the opinions expressed above.
This opinion is furnished to you in connection with the filing of the Registration Statement and, except as set forth below, may not be relied upon for any other purpose without our prior written consent in each instance.
We hereby consent to reliance on this opinion letter and the opinions provided herein by the law firm Akerman LLP solely in connection with the legal opinion provided by that law firm that is included as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to us under the heading “Legal Matters” in the prospectus forming part of the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations promulgated thereunder.
| Very truly yours, | |
| /s/ Ballard Spahr LLP | |
| BALLARD SPAHR LLP |
Exhibit 5.4
July 17, 2023
Midwest Microwave Solutions, Inc.
c/o HEICO Corporation
3000 Taft Street
Hollywood, Florida 33021
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Midwest Microwave Solutions, Inc., an Iowa corporation (“Guarantor”), in connection with the preparation of the registration statement on Form S-3 (as amended or supplemented, the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), by HEICO Corporation, a Florida corporation ( “Company”), Guarantor, and certain other subsidiaries of the Company (collectively, the “Subsidiary Guarantors”). The Registration Statement relates to, among other things, the issuance and sale of debt securities of the Company (“Debt Securities”) and guarantees of the Debt Securities by the Subsidiary Guarantors (collectively, the “Guarantees” and each, a “Guarantee,” and, together with the Debt Securities, the “Securities”) in one or more offerings from time to time on a delayed or continuous basis (the “Offerings”) pursuant to Rule 415 of the General Rules and Regulations promulgated under the Securities Act (the “Rules”).
Debt Securities will be issued pursuant to an indenture, supplemental indenture, and/or additional supplemental indentures (collectively, the “Indenture”) between the Company and Truist Bank, a North Carolina banking corporation, as trustee (the “Trustee”) and, if applicable, one or more Subsidiary Guarantors, as guarantors. The Indenture will be substantially in the form of the base indenture attached as Exhibit 4.9 to the Registration Statement (the “Base Indenture”). Any Guarantee of Debt Securities will be issued pursuant to a supplement to, or separate provision in, the Indenture (each, a “Guarantee Supplement”), as applicable, pursuant to which the corresponding Debt Securities are issued.
For purposes of this opinion, we have reviewed final forms of the Registration Statement and the Base Indenture.
We have also examined and relied upon copies, certified or otherwise identified to our satisfaction, of: (a) Amended and Restated Articles of Incorporation of Guarantor filed with the Iowa Secretary of State on August 26, 2015 (“Articles of Incorporation”), (b) Amended and Restated Bylaws of Guarantor dated August 21, 2015, (c) Certificate of Existence of Guarantor issued by the Iowa Secretary of State on July 17, 2023 (the “Good Standing Certificate”), (d) Action by Unanimous Written Consent of the Directors and Managers of the Company and Subsidiary Guarantors dated July 17, 2023, and (e) Certificate to Counsel by Carlos L. Macau, Jr., Executive Vice President – Chief Financial Officer of the Company and Treasurer of Guarantor dated July 17, 2023.
July 17, 2023
Page 2
In connection with this opinion, we have conducted such inquiries and examinations of law as we deem necessary or appropriate for rendering this opinion. We have not reviewed any documents other than the Registration Statement, the Base Indenture, and the documents listed in clauses (a) through (e) in the immediately preceding paragraph and have not conducted any examination of any public records, and the opinions rendered herein are limited accordingly.
For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties and the due authorization, execution, and delivery of all documents by the parties thereto. As to any facts material to the opinions expressed herein which we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company, Guarantor, and others.
We have also assumed that, at the time of the issuance and delivery of each of any Securities and at the time of issuance, delivery, and execution of the instrument evidencing the same: (i) the Registration Statement and any amendments thereto (including post-effective amendments) will be effective and will comply with all applicable laws at the time the Securities are offered or issued as contemplated by the Registration Statement; (ii) a prospectus supplement (“Prospectus Supplement”) will have been prepared and filed with the Commission describing the Securities offered thereby and will comply with all applicable laws; (iii) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the appropriate Prospectus Supplement; (iv) the Securities will be issued and sold in the form and containing the terms set forth in the Registration Statement, the appropriate Prospectus Supplement and the appropriate Indenture; and (v) Guarantor will have obtained any legally required consents, approvals, authorizations and other orders of any regulatory authorities necessary to issue and sell the Securities being offered and to execute and deliver the Indenture.
Based upon and subject to the qualifications, assumptions, and limitations set forth herein, we are of the opinion that:
1. Based solely on the Articles of Incorporation and the Certificate of Good Standing, Guarantor is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Iowa.
2. Guarantor has the corporate power and authority to execute and deliver, and to perform its obligations under, the Base Indenture and one or more Indentures in the form of the Base Indenture, including the Guarantee thereunder or under any Guarantee Supplement issued thereunder by Guarantor.
July 17, 2023
Page 3
The opinions in this letter are based solely on the laws of the State of Iowa, as currently in effect, and nothing herein shall be construed to be an opinion as to the applicability or effect of the laws of any other jurisdiction.
The opinions expressed in this letter are strictly limited to the matters stated herein, and no other opinions may be implied. This opinion is provided as a legal opinion only, effective as of the date of this letter, and not as representations of fact. Except as expressly set forth herein, we have not undertaken any independent investigation, examination or inquiry to determine the existence or absence of any facts (and have not caused the review of any court file or indices) and no inference as to our knowledge concerning any facts should be drawn as a result of the limited representation undertaken by us.
The opinions expressed herein are rendered and speak only as of the date hereof and we specifically disclaim any responsibility to update such opinions subsequent to the date hereof or to advise you of subsequent developments affecting such opinions. The Securities may be issued from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof, which laws are subject to change with possible retroactive effect.
This opinion letter is rendered to you in connection with the Registration Statement. Without our prior written consent, this opinion letter may not be relied upon for any other purpose or by any other person except that Akerman LLP may rely on the opinion included herein for the purposes of delivering its opinion to the Company in connection with the filing of the Registration Statement. Additionally, this opinion may be filed with the Commission as an exhibit to the Registration Statement, and our firm may be referred to under the caption “Legal Matters” in the Registration Statement provided such reference discloses our limited representation and opinion as to only those matters described in this letter. In giving this consent, we do not admit that we are in the category of persons whose consent is required under the Securities Act or the Rules.
| Very truly yours, | |
| /s/ HARTZOG CONGER CASON LLP | |
| HARTZOG CONGER CASON LLP |
Exhibit 5.5
July 17, 2023
HEICO Corporation
3000 Taft Street
Hollywood, Florida 33021
Ladies and Gentlemen:
We are acting as special counsel to Heico Corporation, a Florida corporation (the “Company”), in connection with the registration under the Securities Act of 1933, as amended (the “1933 Act”), on a Registration Statement on Form S-3 to be initially filed with the Securities and Exchange Commission (the “SEC”) on or about the date hereof (the “Registration Statement”) of the proposed issuance and sale from time to time (a) by the Company of Common Stock; Class A Common Stock; preferred stock; debt securities, in one or more series (the “Debt Securities”), which may be issued pursuant to an indenture to be dated on or about the date of the first issuance of Debt Securities thereunder, by and between the Company and a trustee to be selected by the Company, in the form attached as Exhibit 4.9 to the Registration Statement (as defined below), as such indenture may be amended or supplemented from time to time (the “Indenture”); depositary shares; warrants; and units consisting of any combination of the foregoing securities (collectively, the “Company Securities”) and (b) by Decavo LLC, an Oregon limited liability company (“Decavo”), and Engineering Design Team, Inc., an Oregon corporation (“EDT” and, together with Decavo, the “Oregon Subsidiary Guarantors”), subsidiaries of the Company, who together with other subsidiaries of the Company comprise the "Subsidiary Guarantors", of guarantees of the Debt Securities (the “Guarantees”, and the Guarantees together with the Company Securities, the “Shelf Securities”). The Shelf Securities may be sold from time to time pursuant to Rule 415 under the 1933 Act.
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the 1933 Act.
Documents Reviewed
In connection with this opinion letter, we have examined the Registration Statement and the exhibits thereto. In addition, we have examined and relied upon the following:
(i) a certificate from the Treasurer of Decavo, certifying as to true and correct copies of (A) the articles of organization of Decavo, dated as of April 20, 2009, as amended and restated by the amended and restated articles of organization filed by Decavo with the Secretary of State of the State of Oregon (the “OR SOS”) on March 19, 2019, and as further amended and restated by the amended and restated articles of organization filed by Decavo with the OR SOS on October 27, 2021; (B) the operating agreement of Decavo; and (C) the unanimous written consent of the Board of Managers of Decavo effective July 17, 2023; and (D) the incumbency and specimen signature(s) of the individual(s) authorized to execute and deliver the Indenture on behalf of Decavo;
(ii) a certificate from the Treasurer of EDT, certifying as to true and correct copies of (A) the articles of incorporation of EDT, dated as of December 11, 1987, as filed by EDT with the OR SOS on December 16, 1987, as amended by the Articles of Merger, dated as of December 18, 2008, as filed by EDT with the OR SOS on December 19, 2008; (B) the bylaws of EDT; (C) the unanimous written consent of the Board of Directors of EDT effective July 17, 2023; and (D) the incumbency and specimen signature(s) of the individual(s) authorized to execute and deliver the Indenture on behalf of EDT;
(iii) a Certificate of Existence dated July 13, 2023 issued by the OR SOS attesting to the existence of Decavo in the State of Oregon;
HEICO Corporation
Opinion of Stoel Rives LLP
July 17, 2023
Page 2 of 3
(iv) a Certificate of Existence dated July 13, 2023 issued by the OR SOS attesting to the existence of EDT in the State of Oregon; and
(v) originals, or copies identified to our satisfaction as being true copies, of such other records, documents and instruments as we have deemed necessary for the purposes of this opinion letter.
Assumptions Underlying Our Opinions
In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies.
Our Opinions
Based on and subject to the foregoing and the exclusions, qualifications, limitations and other assumptions set forth in this opinion letter, we are of the opinion that:
1. Organizational Status. Decavo is a limited liability company validly existing under the laws of the State of Oregon. EDT is a corporation validly existing under the laws of the State of Oregon.
2. Power and Authority. Decavo has the limited liability company power and authority to execute, deliver and perform its obligations under the Indenture and guarantee the Debt Securities pursuant to the Indenture. EDT has the corporate power and corporate authority to execute, deliver and perform its obligations under the Indenture and guarantee the Debt Securities pursuant to the Indenture.
Qualifications, Exceptions and Limitations Applicable to Our Opinions
It is understood that this opinion is to be used only in connection with the offer and sale of the Guarantees while the Registration Statement is effective under the 1933 Act.
Our opinion is limited to the laws of the State of Oregon and we do not express any opinion concerning any other laws. Without limiting the generality of the foregoing, we express no opinion with respect to (i) the qualification of the Shelf Securities under the securities or blue sky laws of any state or any foreign jurisdiction or (ii) the compliance with any federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.
Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. The Shelf Securities may be issued from time to time on a delayed or continuous basis, but this opinion is based upon currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.
This opinion letter is to be construed in accordance with the report by the TriBar Opinion Committee, Third Party “Closing” Opinions, 53 BUS LAW. 592 (Feb. 1998).
HEICO Corporation
Opinion of Stoel Rives LLP
July 17, 2023
Page 3 of 3
Miscellaneous
We consent to your filing this opinion with the SEC as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act and to reference the firm’s name under the caption “Legal Matters” in the prospectus which forms part of the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the 1933 Act or the rules and regulations of the SEC promulgated thereunder. Without our prior written consent, this opinion letter may not be relied upon for any other purpose or by any other person except that Akerman LLP may rely on the opinion included herein for the purpose of delivering its opinion to the Company in connection with the filing of the Registration Statement.
Very truly yours,
| /s/ Stoel Rives LLP | |
| Stoel Rives LLP |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement No. 333-XXXXXX on Form S-3 of our reports dated December 21, 2022 relating to the financial statements of Heico Corporation and subsidiaries and the effectiveness of Heico Corporation and subsidiaries’ internal control over financial reporting, appearing in the Annual Report on Form 10-K of Heico Corporation and subsidiaries for the year ended October 31, 2022. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Miami, Florida
July 17, 2023
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
Truist Bank
(Exact name of trustee as specified in its charter)
| North Carolina | 56-0149200 | |
| (Jurisdiction of incorporation if not a U.S. national bank) | (I.R.S. Employer Identification No.) |
|
223 West Nash Street Wilson, North Carolina |
27893 | |
| (Address of principal executive offices) | (Zip Code) |
Patrick Giordano
Vice President
223 West Nash Street
Wilson, North Carolina 27893
(904) 463-6762
(Name, address and telephone number of agent for service)
HEICO Corporation
(For other obligors, please see “Table of Co-Registrants” on the Following Page)
(Exact name of obligor as specified in its charter)
| Florida | 65-0341002 | |
| (Jurisdiction of incorporation) | (I.R.S. Employer Identification No.) |
|
3000 Taft Street Hollywood, Florida |
33021 | |
| (Address of principal executive offices) | (Zip Code) |
Debt Securities
Guarantees of Debt Securities
(Title of the indenture securities)
TABLE OF CO-REGISTRANTS
| Exact Name of Co-Registrant as Specified in its Charter | State or Other Jurisdiction of Incorporation or Organization |
I.R.S. Employer Identification No. | ||
| 16-1741 PROPERTY, INC. | Florida | 45-4350389 | ||
| 26 WARD HILL PROPERTY, LLC | Florida | 86-3142182 | ||
| 3 MCCREA PROPERTY COMPANY, LLC | Florida | 83-2312708 | ||
| 34 FREEDOM COURT, CORP. | Florida | 92-1754605 | ||
| 3D PLUS U.S.A., INC. | Delaware | 74-2947071 | ||
| 60 SEQUIN LLC | Connecticut | 82-4758526 | ||
| 8929 FULLBRIGHT PROPERTY, LLC | California | 88-3653335 | ||
| ACCURATE METAL MACHINING, INC. | Ohio | 34-1193166 | ||
| ACTION RESEARCH CORPORATION | Florida | 46-1086859 | ||
| AEROANTENNA TECHNOLOGY, INC. | California | 95-4322670 | ||
| AERODESIGN, INC. | Tennessee | 62-1858631 | ||
| AEROELT, LLC | Florida | 82-4804644 | ||
| AEROSPACE & COMMERCIAL TECHNOLOGIES, LLC | Florida | 47-4759100 | ||
| AIRCRAFT TECHNOLOGY, INC. | Florida | 65-0233725 | ||
| ANALOG MODULES, INC. | Florida | 59-2074349 | ||
| APEX HOLDING CORP. | Delaware | 46-0732506 | ||
| APEX MICROTECHNOLOGY, INC. | Arizona | 46-0624696 | ||
| ASTRO PROPERTY, LLC | Connecticut | 47-4786567 | ||
| ASTROSEAL PRODUCTS MFG. CORPORATION | Connecticut | 06-0808406 | ||
| BAY EQUIPMENT CORP. | Delaware | 82-4356384 | ||
| BLUE AEROSPACE LLC | Florida | 27-4313205 | ||
| BREIDON, LLC | Maryland | 46-1563733 | ||
| CAMTRONICS, LLC | Florida | 86-3999996 | ||
| CARBON BY DESIGN CORPORATION | Florida | 82-1858021 | ||
| CARBON BY DESIGN LLC | California | 20-1043190 | ||
| CHARTER ENGINEERING, INC. | Florida | 59-3400419 | ||
| CONNECTRONICS CORP. | Florida | 20-1971140 | ||
| CONXALL CORPORATION | Illinois | 36-2944789 | ||
| CSI AEROSPACE, INC. | Florida | 45-5531151 | ||
| DB CONTROL CORP. | Florida | 27-1784894 | ||
| DECAVO LLC | Oregon | 26-4673544 | ||
| DIELECTRIC SCIENCES, INC. | Massachusetts | 04-2603559 | ||
| DUKANE SEACOM, INC. | Florida | 27-1050226 | ||
| ENGINEERING DESIGN TEAM, INC. | Oregon | 93-0964386 | ||
| FLIGHT MICROWAVE CORPORATION | California | 55-0883855 | ||
| FUTURE AVIATION, INC. | Florida | 65-1011336 | ||
| HARTER AEROSPACE, LLC | Florida | 47-2458702 | ||
| HEICO AEROSPACE CORPORATION | Florida | 59-0791770 | ||
| HEICO AEROSPACE HOLDINGS CORP. | Florida | 65-0831428 | ||
| HEICO AEROSPACE PARTS CORP. | Florida | 65-1146790 | ||
| HEICO EAST CORPORATION | Florida | 65-0271411 | ||
| HEICO ELECTRONIC TECHNOLOGIES CORP. | Florida | 65-0680321 | ||
| HEICO FLIGHT SUPPORT CORP. | Florida | 46-0627157 | ||
| HEICO PARTS GROUP, INC. | Florida | 26-3082967 | ||
| HEICO REPAIR GROUP AEROSTRUCTURES, LLC | Florida | 82-2700627 | ||
| HEICO REPAIR, LLC | Florida | 84-2205144 | ||
| HETC I, LLC | Florida | 83-1444190 | ||
| HETC II CORP. | Florida | 83-2596259 | ||
| HETC III, LLC | Florida | 83-3243681 | ||
| HETC IV, LLC | Florida | 84-4050584 | ||
| HETC V, LLC | Florida | 85-2422715 | ||
| HFSC III CORP. | Florida | 47-2451008 | ||
| HFSC IV CORP. | Florida | 81-5140246 | ||
| HFSC V, LLC | Florida | 83-2178482 |
2
| Exact Name of Co-Registrant as Specified in its Charter | State or Other Jurisdiction of Incorporation or Organization |
I.R.S. Employer Identification No. | ||
| HFSC VI, LLC | Florida | 84-2575273 | ||
| HFSC VII, LLC | Florida | 85-1245696 | ||
| HFSC VIII, LLC | Florida | 86-3453082 | ||
| HFSC XI CORP. | Florida | 87-4380214 | ||
| HNW 2 BUILDING CORP. | Florida | 20-1971031 | ||
| HNW BUILDING CORP. | Florida | 65-0880442 | ||
| HVT GROUP, INC. | Delaware | 04-3502230 | ||
| INERTIAL AIRLINE SERVICES, INC. | Ohio | 34-1823836 | ||
| INTELLIGENT DEVICES, LLC | Delaware | 52-1943471 | ||
| IRONWOOD ELECTRONICS, INC. | Minnesota | 27-4686945 | ||
| IRCAMERAS LLC | Florida | 47-4956282 | ||
| JET AVION CORPORATION | Florida | 59-2699611 | ||
| JETSEAL, INC. | Delaware | 91-1433851 | ||
| LEADER TECH, INC. | Florida | 04-2667972 | ||
| LPI INDUSTRIES CORPORATION | Florida | 65-0054782 | ||
| LUCIX CORPORATION | California | 77-0504129 | ||
| LUMINA POWER, INC. | Florida | 20-2350926 | ||
| MASTIFF DESIGN, INC. | Florida | 88-1101204 | ||
| MCCLAIN INTERNATIONAL, INC. | Georgia | 58-0876596 | ||
| MIDWEST MICROWAVE SOLUTIONS, INC. | Iowa | 27-0124198 | ||
| NIACC-AVITECH TECHNOLOGIES INC. | Florida | 51-0453669 | ||
| NORTHWINGS ACCESSORIES CORPORATION | Florida | 65-0312802 | ||
| OPTICAL DISPLAY ENGINEERING, INC. | Florida | 46-1634579 | ||
| OPTICAL DISPLAY ENGINEERING, LLC | Florida | 38-4203543 | ||
| PACIWAVE, INC. | California | 77-0413439 | ||
| PIONEER INDUSTRIES LLC | Delaware | 11-1746409 | ||
| PRIME AIR, LLC | Florida | 20-5545289 | ||
| PYRAMID SEMICONDUCTOR CORP | Florida | 86-2249124 | ||
| QUELL CORPORATION | Colorado | 46-0507356 | ||
| R.H. LABORATORIES, INC. | New Hampshire | 02-0527375 | ||
| RADIANT POWER CORP. | Florida | 65-0892651 | ||
| RADIANT POWER IDC, LLC | Florida | 82-3217339 | ||
| RADIANT-SEACOM REPAIRS CORP. | Florida | 46-4846094 | ||
| RAMONA RESEARCH, INC. | California | 45-4786673 | ||
| REINHOLD HOLDINGS, INC. | Delaware | 20-8005591 | ||
| REINHOLD INDUSTRIES, INC. | Delaware | 13-2596288 | ||
| RESEARCH ELECTRONICS INTERNATIONAL, L.L.C. | Tennessee | 62-1597816 | ||
| RIDGE ENGINEERING, LLC | Maryland | 02-0527375 | ||
| RIDGE HOLDCO, LLC | Florida | 52-0908121 | ||
| ROBERTSON FUEL SYSTEMS, LLC | Arizona | 87-1755561 | ||
| ROCKY MOUNTAIN HYDROSTATICS, LLC | Colorado | 86-0775241 | ||
| SANTA BARBARA INFRARED, INC. | California | 58-2428936 | ||
| SEAL DYNAMICS LLC | Florida | 77-0111325 | ||
| SEAL Q CORP. | Florida | 00-0000000 | ||
| SENSOR SYSTEMS, INC. | Nevada | 95-2127229 | ||
| SENSOR TECHNOLOGY ENGINEERING, LLC | Florida | 95-2127229 | ||
| SIERRA MICROWAVE TECHNOLOGY, LLC | Delaware | 82-4199356 | ||
| SOLID SEALING TECHNOLOGY, INC. | New York | 46-3801015 | ||
| SPECIALITY SILICONE PRODUCTS, INC. | New York | 20-0539521 | ||
| SUNSHINE AVIONICS LLC | Florida | 82-3091838 | ||
| SWITCHCRAFT HOLDCO, INC. | Delaware | 00-0000000 | ||
| SWITCHCRAFT, INC. | Illinois | 20-2476580 | ||
| THE BECHDON COMPANY, LLC | Maryland | 36-2051512 | ||
| THERMAL ENERGY PRODUCTS, INC. | California | 52-0895348 | ||
| THERMAL STRUCTURES, INC. | California | 98-1285293 | ||
| TRAD TESTS & RADIATIONS, INC. | Florida | 95-3575611 | ||
| TRANSFORMATIONAL SECURITY, LLC | Maryland | 00-0000000 | ||
| TSID HOLDINGS, LLC | Florida | 33-0689721 | ||
| TTT CUBED, INC. | California | 85-2433352 | ||
| TURBINE KINETICS, INC. | Florida | 27-5248226 |
Address of each Co-Registrant’s Principal Executive Offices: 3000 Taft Street Hollywood, Florida 33021.
3
| Item 1. | General Information. |
Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
State of North Carolina – Commissioner of Banks
State of North Carolina
Raleigh, North Carolina
Federal Reserve Bank of Richmond
Post Office Box 27622
Richmond, Virginia 23261
Federal Deposit Insurance Corporation
Washington, D.C.
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| Item 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an affiliate of the trustee.
Items 3-15.
No responses are included for Items 3-15. Responses to those items are not required because, as provided in General Instruction B, the obligor is not in default on any securities issued under indentures under which Truist Bank is a trustee and Truist Bank is not a foreign trustee.
| Item 16. | List of Exhibits. |
List below all exhibits filed as a part of this statement of eligibility; exhibits identified in parentheses are filed with the Commission and are incorporated herein by reference as exhibits hereto pursuant to Rule 7a-29 under the Trust Indenture Act of 1939, as amended, and Rule 24 of the Commission’s Rules of Practice.
4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, Truist Bank, a banking corporation organized and existing under the laws of the State of North Carolina, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Jacksonville and the State of Florida, on the 17th day of July, 2023.
| Truist Bank |
| By: | /s/ Patrick Giordano | |
| Name: | Patrick Giordano | |
| Title: | Vice President |
5
BYLAWS OF TRUIST BANK
As Amended and Restated, Effective December 7, 2019
ARTICLE I
Offices
1. Principal Office: The principal office of Truist Bank (the “bank”) shall be located at 214 N. Tryon Street, Charlotte, North Carolina, or at such other place as the Board of Directors may fix from time to time.
2. Registered Office: The bank shall maintain a registered office or registered offices at such place or places as may be required by applicable law.
3. Other Offices: The bank may have offices at such other places as the Board of Directors may from time to time determine, or as the affairs of the bank may require.
ARTICLE II
Meetings of Sole Shareholder
1. Place of Meetings: All meetings of the bank’s sole shareholder, Truist Financial Corporation, shall be held at the principal office of the bank, or at such other place, either within or without the State of North Carolina, as shall, in each case, be fixed by the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Secretary or the Board of Directors and designated in the notice of the meeting.
2. Annual Meetings: The annual meeting of the bank’s sole shareholder shall be held on such date and at such time as may be designated by the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Secretary or the Board of Directors for the purpose of the election of directors and for the transaction of such other business as may properly come before the meeting.
3. Substitute Annual Meeting: If the annual meeting shall not be held on the day designated by these bylaws, a substitute annual meeting may be called in accordance with the provisions of this Article relating to special meetings. A meeting so called shall be designated and treated for all purposes as the annual meeting.
4. Special Meetings: Except as otherwise provided by any applicable law, special meetings of the bank’s sole shareholder may be called at any time by the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Secretary or the Board of Directors of the bank.
5. Notice of Meetings; Waiver:
(a) Written, printed or electronically transmitted notice of a meeting stating the date, time and place of the meeting shall be delivered to the bank’s sole shareholder not fewer than 10 nor more than 60 days before the date thereof, by or at the direction of the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Secretary or the Board of Directors.
(b) In case of an annual or substitute annual meeting, the notice of meeting need not specifically state the business to be transacted at the meeting, unless a description of the matter is required by the provisions of applicable law. In the case of a special meeting, the notice of meeting shall specifically state the purpose or purposes for which the meeting is called.
(c) The bank’s sole shareholder may waive notice of any meeting before or after the date and time stated in the notice. The waiver must be in writing, signed by the shareholder and delivered to the bank for inclusion in the minutes or filing with the corporate records. Attendance at a meeting by the sole shareholder waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting.
6. Proxies: Shares may be voted either in person or by one or more proxies authorized by a written appointment of proxy signed by the bank’s sole shareholder.
7. Action without Meeting: Any action that is required or permitted to be taken at a meeting of the sole shareholder may be taken without a meeting if a written consent, setting forth the action so taken, shall be signed by the sole shareholder, and delivered to the bank for inclusion in the minutes or filing with the corporate records.
8. Conduct of Meetings:
(a) Unless determined otherwise by the Board of Directors, the Chief Executive Officer of the bank shall act as chairman at all meetings of the sole shareholder and the Secretary or an Assistant Secretary of the bank shall act as secretary at all meetings of sole shareholder.
(b) The Board of Directors or, in its absence, the chairman of the meeting may, to the extent not prohibited by applicable law, establish such rules or regulations for the conduct of meetings of the sole shareholder as the Board or the chairman, as the case may be, shall deem necessary, appropriate or convenient.
ARTICLE III
Directors
1. General Powers: All corporate powers shall be exercised by or under the authority of, and the business, affairs and operations of the bank shall be managed by or under the direction of, the Board of Directors, except as otherwise provided by applicable law or in the articles of incorporation or bylaws.
2. Number, Term, and Qualification: The Board shall consist of not less than five nor more than thirty members and the number of members shall be fixed and determined from time to time by a resolution of the majority of the full board or by resolution of the sole shareholder. Each director shall be elected to serve a term of one year, with each director’s term to expire at the annual meeting next following the director’s election as a director. Each director shall hold office until his or her death, resignation, retirement, removal, disqualification, or his or her successor is elected and qualified. Unless otherwise permitted by applicable law, not less than three-fourths of the directors shall be citizens of the United States of America and satisfy the eligibility requirements for bank directors imposed by federal law and Chapter 53C of the North Carolina General Statutes or any successor thereto. In addition, a director must do either of the following: (i) appoint an agent in Wake County, North Carolina, for service of process; or (ii) consent, on a form satisfactory to the North Carolina Commissioner of Banks, to the following: that the North Carolina Commissioner of Banks may serve as the director’s agent for service of process and that the director consents to jurisdiction in Wake County, North Carolina, but only for purposes of any action or proceeding brought by the North Carolina Commissioner of Banks.
- 2 -
3. Election of Directors: Except as provided in Section 5 of this Article, directors shall be elected by the sole shareholder of the bank.
4. Removal: Any director may be removed from office by the bank’s sole shareholder with or without cause.
5. Vacancies: A vacancy occurring in the Board of Directors, including a vacancy created by an increase in the number of directors, may be filled by a majority of the remaining directors. The bank’s sole shareholder may elect a director at any time to fill a vacancy not filled by the directors. In addition, at any meeting of the sole shareholder, the shareholder may authorize not more than two additional directorships which may be left unfilled to be filled in the discretion of the Board during the interval between shareholders’ meetings. A director elected to fill a vacancy shall be elected for the unexpired term of his or her predecessor in office.
6. Compensation: The Board of Directors may compensate non-management directors for their services as such and may provide for the payment of expenses incurred by all directors, as appropriate, in connection with such services.
7. Director Retirement: A director, upon reaching age seventy-five, shall retire as a director effective as of the end of that calendar year without any further action by the sole shareholder or the Board of Directors.
8. Chairman of the Board; Vice Chairmen: There shall be a Chairman of the Board of Directors elected by the directors from their members. The Chairman may also be the Chief Executive Officer of the bank. The Chairman shall preside at all meetings of the Board of Directors and shall perform such other duties as may be incident to the office of Chairman or as may be directed by the Board. There may also be one or more Vice Chairmen of the Board of Directors elected by the directors from their members. Such Vice Chairman or Vice Chairmen shall perform such other duties as may be incident to the office of Vice Chairman or as may be directed by the Board.
9. Executive Committee: The Board of Directors shall appoint an Executive Committee composed of not less than three members of the Board. The Executive Committee shall have such powers and duties as may be stated in its charter, if any, or as may be prescribed from time to time by the Board, subject to any restrictions imposed by applicable law. Without limiting the foregoing, to the extent permitted by applicable law and authorized by the Board of Directors, the Executive Committee shall have and may exercise, during the intervals between the meetings of the Board, all the powers and authority of the Board of Directors in the management of the business affairs and operations of the bank.
10. Audit Committee: The Board of Directors shall appoint an Audit Committee, composed solely of not less than three independent directors. Members of the Audit Committee shall be elected by a majority of the Board and in compliance with Section 363 of the Federal Deposit Insurance Corporation Rules and Regulations. The Audit Committee shall have such powers and duties as may be stated in its charter or as may be prescribed from time to time by the Board, subject to any restrictions imposed by applicable law.
11. Other Committees: The Board of Directors may appoint such other committees of the Board (including a Trust Committee, a Compensation Committee, a Risk Committee and a Loan Committee) as: (i) the Board shall deem appropriate for the safe and sound operation of the bank in a manner consistent with applicable law and regulations; (ii) as required by the North Carolina Commissioner of Banks; or (iii) as may be required by applicable law. Members of such committees shall be elected by a majority of the Board. Each committee shall have a minimum of three members. Each such committee shall have such powers and duties as may be stated in such committee’s charter, if any, or as may be prescribed from time to time by the Board, subject to any restrictions imposed by applicable law.
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12. Advisory Directors: The Board of Directors may also appoint local advisory directors as it deems useful to the business of the bank; provided, however that the local advisory directors shall in no way be deemed to be directors serving on the Board of Directors.
13. General Committee Matters: Each committee member serves at the pleasure of the Board of Directors. The provisions in these bylaws governing meetings, action without meetings, notice, waiver of notice, quorum and voting requirements of the Board apply to committees of the Board established under this Article.
14. CEO and Chairman Position and Succession; Board Composition; Headquarters.
(a) The Board of Directors has resolved that, effective as of the effective time (the “Effective Time”) of the Bank Merger (for all purposes of this Section 14, as defined in the Agreement and Plan of Merger, dated as of February 7, 2019, as amended June 14, 2019, by and between BB&T Corporation (the “corporation”) and SunTrust Banks, Inc. (“SunTrust”), as the same may be amended from time to time (the “Merger Agreement”)), Mr. Kelly S. King shall continue to serve as Chairman of the Board of Directors and Chief Executive Officer of the bank and Mr. William H. Rogers, Jr. shall become the President and Chief Operating Officer of the bank. The Board of Directors has further resolved that (i) Mr. Rogers shall be the successor to Mr. King as the Chief Executive Officer of the bank, with such succession to become effective on September 12, 2021 or any such earlier date as of which Mr. King ceases for any reason to serve in the position of Chief Executive Officer of the bank (the date of such corporation succession, the “CEO Succession Date”); (ii) subject to Mr. King’s death, resignation or disqualification, from the CEO Succession Date through March 12, 2022, Mr. King shall serve as Executive Chairman of the bank; (iii) Mr. Rogers shall be the successor to Mr. King as the Chairman of the Board of Directors of the bank, with such succession to become effective on March 12, 2022, or any such earlier date as of which Mr. King ceases for any reason to serve in the position of Chairman of the Board of Directors of the bank (the date of such corporation succession, the “Chairman Succession Date”); and (iv) subject to Mr. King’s death, resignation or disqualification, from the Chairman Succession Date until September 12, 2022, Mr. King shall serve as a consultant to the bank. The corporation may enter into or amend appropriate agreements or arrangements with Mr. King and Mr. Rogers in connection with the subject matter of this Article III, Section 14(a) (any such agreement or arrangement, as may be amended, supplemented or modified from time to time, an “Employment Agreement”).
(b) (i) Prior to the date that is the third (3rd) anniversary of the Effective Time (such date, the “Expiration Date”), the removal of Mr. Rogers from, or the failure to appoint or re-elect Mr. Rogers to, any of the positions specifically provided for in this Article III, Section 14 and in any Employment Agreement with Mr. Rogers at the times specifically provided for in this Article III, Section 14 or in any Employment Agreement with Mr. Rogers, (ii) prior to the Expiration Date, the removal of Mr. King from, or the failure to appoint or re-elect Mr. King to, any of the positions specifically provided for in this Article III, Section 14 and in any Employment Agreement with Mr. King at the times specifically provided for in this Article III, Section 14 or in any Employment Agreement with Mr. King, (iii) prior to the Expiration Date, any determination not to nominate Mr. Rogers as a director of the bank or (iv) any determination not to nominate Mr. King as a director of the bank for each term of service of directors beginning at any time prior to December 31, 2023, shall each require the affirmative vote of at least 75% of the full Board of Directors.
(c) Effective as of the Effective Time, the Board of Directors shall be comprised of eleven (11) Continuing SunTrust Directors, including the Chief Executive Officer of SunTrust as of immediately prior to the Effective Time, and eleven (11) Continuing BB&T Directors, including the Chief Executive Officer of the corporation as of immediately prior to the Effective time. From and after the Effective Time through the Expiration Date: (i) the number of directors that comprises the full Board of Directors shall each be twenty-two (22); and (ii) no vacancy on the Board of Directors created by the cessation of service of a director shall be filled by the Board of Directors and the Board of Directors shall not nominate any individual to fill such vacancy, unless (x) such individual would be an independent director of the bank, (y) in the case of a vacancy created by the cessation of service of a Continuing SunTrust Director, not less than a majority of the Continuing SunTrust Directors have approved the appointment or nomination (as applicable) of the individual appointed or nominated (as applicable) to fill such vacancy, in which case the Continuing BB&T Directors shall vote to approve the appointment or nomination (as applicable) of such individual, and (z) in the case of a vacancy created by the cessation of service of a Continuing BB&T Director, not less than a majority of the Continuing BB&T Directors have approved the appointment or nomination (as applicable) of the individual appointed or nominated (as applicable) to fill such vacancy, in which case the Continuing SunTrust Directors shall vote to approve the appointment or nomination (as applicable) of such individual; provided, that any such appointment or nomination pursuant to clause (y) or (z) shall be made in accordance with applicable law and the rules of the New York Stock Exchange (or other national securities exchange on which the corporation’s securities are listed). For purposes of this Article III, Section 14, the terms “Continuing SunTrust Directors” and “Continuing BB&T Directors” shall mean, respectively, the directors of the corporation and SunTrust who were selected to be directors of the corporation and Truist Bank by SunTrust or the corporation, as the case may be, as of the Effective Time, pursuant to Section 6.12(a) of the Merger Agreement, and any directors of the bank who were subsequently appointed or nominated and elected to fill a vacancy created by the cessation of service of a Continuing SunTrust Director or a Continuing BB&T Director, as applicable, pursuant to this Article III, Section 14(c).
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(d) (i) The headquarters of the bank shall be located in Charlotte, North Carolina; (ii) the hub for the bank’s wholesale business shall be located in Atlanta, Georgia; (iii) the hub for the bank’s consumer and community banking business shall be located in Winston-Salem, North Carolina; and (iv) the hub for the bank’s technology and innovation operations shall be located in Charlotte, North Carolina.
(e) In the event of any inconsistency between any provision of this Article III, Section 14 and any other provision of these bylaws or the bank’s other constituent documents, the provisions of this Article III, Section 14 shall control. The provisions of Article III, Section 14(d)(i) and this second sentence of this Section 14(e) may be modified, amended or repealed, and any bylaw provision inconsistent with such provisions may be adopted, only by the affirmative vote of at least 75% of the full Board of Directors and solely in connection with the corporation’s entry into or consummation of a business combination transaction with another corporation (i) in which the corporation merges with and into such other corporation, (ii) which is a merger of equals or (iii) as a result of which the shareholders of the corporation prior to the effective time of the business combination hold less than 60% of the outstanding common stock of the surviving entity in such business combination. The first and third sentences of this Section 14(e) may be modified, amended or repealed, and any bylaw provision inconsistent with such provisions may be adopted, only by the affirmative vote of at least 75% of the full Board of Directors. Until December 31, 2023, the provisions of Article III, Section 14(b)(iv) and this fourth sentence of this Section 14(e) may be modified, amended or repealed, and any bylaw provision inconsistent with such provisions may be adopted, only by the affirmative vote of at least 75% of the full Board of Directors. Until the Expiration Date, the provisions of this Article III, Section 14 (other than Section 14(b)(iv), Section 14(d)(i) and the first four sentences of this Section 14(e), which are subject to the standards set forth in the preceding sentences) may be modified, amended or repealed, and any Bylaw provision inconsistent with such provisions may be adopted, only by an affirmative vote of at least 75% of the full Board of Directors.
ARTICLE IV
Meetings of Directors
1. Regular Meetings: Regular meetings of the Board of Directors and the committees thereof may be held without notice of the date, time, place or purpose of the meeting, either inside or outside the State of North Carolina, as the Board of Directors shall determine in accordance with North Carolina law. Minutes of all board and committee meetings, regular or special, shall be kept and maintained by the bank, and all such minutes shall be submitted to the Board for its review at or prior to its next meeting and for approval at such meeting as required by applicable law.
2. Special Meetings: Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer or the Secretary of the bank, or at the request of three or more directors. Each member of the Board of Directors shall be given notice stating the date, time and place, by letter, electronic delivery or in person, of each special meeting not less than one day before the meeting. Such notice need not specify the purpose for which the meeting is called, unless required by the North Carolina Business Corporation Act, the articles of incorporation or the bylaws.
3. Waiver of Notice: A director may waive notice of any meeting before or after the date and time stated in the notice. The waiver must be in writing, signed by the director entitled to the notice, and filed with the minutes or corporate records. In addition, attendance at or participation by a director at a meeting shall constitute a waiver of notice of such meeting, unless the director at the beginning of the meeting (or promptly upon his or her arrival) objects to holding the meeting or transacting business at the meeting and does not later vote for or assent to action taken at the meeting.
4. Quorum: Unless the articles of incorporation, the bylaws or applicable law require a greater number, a majority of the number of directors prescribed by or pursuant to these bylaws shall constitute a quorum for the transaction of business at any meeting of the Board of Directors or, if no number is so prescribed, a majority of directors in office immediately before the meeting shall constitute a quorum.
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5. Adjournment: Any duly convened regular or special meeting may be adjourned to a later date or time without further notice.
6. Manner of Acting: Except as otherwise provided by applicable law or in the articles of incorporation or bylaws, the affirmative vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
7. Presumption of Assent: A director who is present at a meeting of the Board of Directors or a committee of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless: (i) he or she objects at the beginning of the meeting (or promptly upon his or her arrival) to holding the meeting or transacting business at the meeting;
(ii) his or her dissent or abstention from the action taken is entered in the minutes of the meeting; or (iii) he or she files written notice of his or her dissent or abstention with the presiding officer of the meeting before its adjournment or with the Secretary immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken.
8. Action without Meeting: Action required or permitted to be taken at a Board of Directors meeting may be taken without a meeting if the action is taken by all members of the Board. The action must be evidenced by one or more written consents signed by each director before or after such action, describing the action taken, and included in the minutes or filed with the corporate records. A director’s consent to action taken without meeting may be in electronic form and delivered by electronic means.
9. Attendance by Electronic, Telephonic or Similar Means: Except as otherwise provided by applicable law or the Board or in the articles of incorporation or bylaws, any or all directors may participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting.
ARTICLE V
Officers
1. Title and Number: The officers of the bank may consist of a Chief Executive Officer, a President, a Chief Operating Officer, a Chief Financial Officer, a Chief Administrative Officer, a Chief Risk Officer, a Secretary, a Treasurer, a Controller, and one or more Corporate Executive Vice Presidents, Senior Executive Vice Presidents, Regional Presidents, and Executive Vice Presidents, as the Board of Directors may from time to time elect. The Chief Executive Officer may also appoint other officers, including such Senior Vice Presidents, Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers as deemed appropriate. The Chief Executive Officer may delegate the authority to appoint officers to other officers of the Bank. Any two or more offices may be held by the same person, except that no individual may act in more than one capacity where action of two or more officers is required.
2. Election and Term: The officers of the bank shall be elected by the Board of Directors or by a duly designated committee of the Board. Each officer shall hold office until a successor is elected and qualified, or until his or her resignation, retirement, death, removal or disqualification.
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3. Removal: The Board of Directors may remove or terminate any officer at any time with or without cause. In addition, any officer other than the Chief Executive Officer may be removed or terminated at any time with or without cause by a duly designated Board committee or by a superior officer. Removal, resignation or termination of an officer shall be without prejudice to the contract rights, if any, of the person so removed.
4. Compensation: The compensation of all officers of the bank shall be fixed by the Board of Directors or by or under the direction of a duly designated committee of the Board or other officer or officers designated by the Board.
5. Chief Executive Officer: The Chief Executive Officer shall have full executive powers, shall be the principal executive officer of the bank, shall have and exercise all powers, duties and authority incident to the office of Chief Executive Officer or as prescribed by the Board and shall, subject to the direction and control of the Board, supervise, direct and control the management of the bank in accordance with these bylaws. The Chief Executive Officer may also serve as Chairman of the Board in accordance with Article III, Section 8.
6. Other Officers: Each officer other than the Chief Executive Officer shall have such title or titles, perform such duties and exercise such powers as may be incident to his or her office or prescribed by the Board, a duly designated committee of the Board or the Chief Executive Officer or his or her designee.
7. Bonds: To the extent required by law, the bank shall require security in the form of a bond for the fidelity and faithful performance of duties by its officers and employees. The bond shall be issued by a bonding company authorized to do business in the State of North Carolina and upon such form as may be approved by the North Carolina Commissioner of Banks. Except as otherwise required by the North Carolina Commissioner of Banks or applicable law, the amount, form, and terms of the bond shall be such as the Board of Directors may require. The premium for the bond is to be paid by the bank.
ARTICLE VI
Contracts, Loans and Deposits
1. Contracts: The Board of Directors may authorize such officers as it deems appropriate to enter into any contract or execute and deliver any instrument on behalf of the bank, and such authority may be general or confined to specific instances. In addition, unless the Board determines otherwise, each officer of the bank shall have such authority as may be incident to his or her particular office to enter into contracts and execute and deliver instruments on behalf of the bank.
2. Loans: No loans shall be contracted on behalf of the bank, as debtor, and no evidence of indebtedness on behalf of the bank shall be issued in its name unless authorized by the Board of Directors. Such authority may be general or confined to specific instances.
3. Checks and Drafts: All checks, drafts or other orders for the payment of money issued in the name of the bank shall be signed by such officer or officers or agent or agents of the bank and in such manner as shall from time to time be determined by the Board of Directors or the Chief Executive Officer.
4. Deposits: All funds of the bank not otherwise employed shall be deposited from time to time to the credit of the bank in such depositories as may be selected by or under the authority of the Board of Directors.
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ARTICLE VII
Certificates for Shares and Their Transfer
1. Certificates for Shares and Stock Transfer Records: The Board of Directors may authorize the issuance of some or all of the shares of the bank without issuing certificates to represent such shares. If shares are represented by certificates, the certificates shall be in such form as required by applicable law and as determined by the Board of Directors. Certificates shall be signed, either manually or in facsimile, by: (i) the Chairman of the Board, the Chief Executive Officer, the President or a Senior Executive Vice President; and (ii) the Secretary or an Assistant Secretary. All certificates for shares shall be consecutively numbered or otherwise identified and entered into the stock transfer records of the bank. When shares are represented by certificates, the bank shall issue and deliver to each shareholder to whom such shares have been issued or transferred, certificates representing the shares owned by such shareholder. When shares are not represented by certificates, then, within a reasonable time after the issuance or transfer of such shares, the bank shall send the shareholder to whom such shares have been issued or transferred a written statement of the information required by applicable law. Unless otherwise provided by applicable law, the rights and obligations of shareholders are identical whether or not their shares are represented by certificates.
2. Transfer of Shares: Transfers of shares shall be made and recorded on the stock transfer records of the bank only: (i) by the record holder thereof or by his, her or its duly authorized agent, transferee or legal representative; and (ii) in the case of certificated shares, upon the surrender of the certificate thereof, which shall be cancelled before a new certificate or uncertificated shares shall be issued. No transfer of shares shall be valid as against the bank for any purpose until it shall have been made and recorded on the stock transfer records of the bank by an entry showing from and to whom transferred.
3. Lost, Stolen or Destroyed Certificates: The Board of Directors may authorize the issuance of a new share certificate in place of a certificate claimed to have been lost, stolen or destroyed, upon receipt of a written statement of such fact from the person claiming that the certificate has been lost, stolen or destroyed. When authorizing such issuance of a new certificate, the Board may require the claimant or his, her or its legal representative to give the bank a bond in such sum and with such surety or other security as the Board may direct to indemnify the bank against loss from any claim with respect to the certificate claimed to have been lost, stolen or destroyed; or the Board may, by resolution, authorize the issuance of the new certificate without requiring such a bond.
ARTICLE VIII
Indemnification of Officers and Directors
1. Right to Indemnification: Any person who at any time hereafter serves or heretofore has served: (i) as an officer, director or advisory director of the bank; (ii) at the request of the bank as a director, advisory director, officer, partner, or trustee (or in any position of similar authority, by whatever title known) of any other foreign or domestic corporation, partnership, joint venture, trust or other enterprise; or (iii) as a trustee or administrator under any employee benefit plan, shall have a right to be indemnified by the bank to the fullest extent permitted by law against:
(a) All liability and expenses, including without limitation costs and expenses of litigation and reasonable attorney’s fees, actually and reasonable incurred by him or her in connection with or as a consequence of any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including appeals, and whether or not brought by or on behalf the bank or by or on behalf of any third party, outsider or any other person, seeking to hold him or her liable by reason of or arising out of his or her status or his or her activities in any of the foregoing capacities; and
(b) Liability incurred by him or her for any judgments, money decrees, fines, penalties or amounts paid in settlement in connection with or as a consequence of any action, suit or proceeding described in (a) above;
provided, however, the bank shall not indemnify or agree to indemnify any person against any liability or expenses he or she may incur on account of his or her activities which were at the time taken known or believed by him or her to be clearly in conflict with the best interest of the bank.
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2. Recovery of Expenses: Any person entitled to indemnification under this Article shall be entitled to recover from the bank his or her reasonable costs, expenses and attorneys’ fees incurred in connection with enforcing his or her right to indemnification.
3. Advancement of Expenses: Expenses incurred by a director, advisory director or officer of the bank in defending an action, suit or proceeding described above shall, at the request of such director, advisory director or officer, and subject to authorization by the Board, be paid by the bank in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director, advisory director or officer to repay such amount unless it shall ultimately be determined that he or she is entitled to indemnification from the bank under this Article or otherwise.
4. Reliance: Any person who at any time after the adoption of this Article serves or has served in any of the capacities described in Section 1 herein for or on behalf of the bank shall be deemed to be doing so and to have done so in reliance upon, and as consideration for, the rights provided herein. Such rights shall inure to the benefit of the heirs and legal representatives of any such person and shall not be exclusive of any other rights to which such person may be entitled apart from the provisions of this Article.
5. Amendment: Any amendment, alteration, repeal or other change hereof limiting or restricting in any way the rights, fixed or contingent, granted hereunder shall operate prospectively only and shall not prejudice, defeat or impair any rights of any person existing at the time of such amendment, alteration, repeal or other change.
6. No Limitation on Other Rights to Indemnification: If this Article or any portion hereof shall be invalidated on any ground by any court or agency of competent jurisdiction, then the bank shall nevertheless indemnify each person described in Section 1 herein to the full extent permitted by the portion of this Article that is not invalidated and also to the full extent permitted or required by other applicable law.
7. Nonexclusivity: The entitlements to advancement of expenses and/or indemnification provided for in this Article VIII are nonexclusive and are separate from any similar rights provided under any law, agreement or otherwise.
ARTICLE IX
General Provisions
1. Dividends: The Board of Directors may from time to time declare, and the bank may pay, distributions and share dividends to its sole shareholder in the manner and upon the terms and conditions provided by N.C.G.S. §53C-4-7 and other applicable law.
2. Seal: The seal of the bank shall be in any form approved from time to time or at any time by the Board of Directors.
3. Fiscal Year: Unless otherwise ordered by the Board of Directors, the fiscal year of the bank shall be from January 1 to December 31.
4. Amendments: Except as otherwise provided by applicable law or in the articles of incorporation or the bylaws, the Board of Directors of the bank shall have the authority, without the assent or vote of the bank’s sole shareholder, to adopt, make, alter, amend and/or rescind the bylaws or any bylaw of the bank. The bank’s sole shareholder may amend or repeal the bank’s bylaws even though the bylaws may also be amended or repealed by the Board of Directors.
5. Voting of Shares of Other Corporations: Except as otherwise directed by the Board of Directors of the bank or required by applicable law, shares of other corporations and associations held by the bank shall be voted in the manner directed by the Chief Executive Officer, the President, the Chief Operating Officer or any Senior Executive Vice President of the bank. All such officers are authorized on behalf of the bank to vote shares of other corporations and associations by proxy and to execute other instruments in connection therewith.
6. Applicability of the North Carolina Business Corporation Act and Chapter 53C of the North Carolina General Statutes: To the extent not inconsistent with or otherwise provided for in these bylaws, management of the bank’s business and regulation of its affairs shall be governed by the provisions of the North Carolina Business Corporation Act and Chapter 53C of the North Carolina General Statutes.
7. Definitions: Unless the context otherwise requires, terms used in these bylaws shall have the meanings assigned to them in the North Carolina Business Corporation Act and Chapter 53C of the North Carolina General Statutes to the extent defined therein. In addition, without limiting the effect of the foregoing, the term “applicable law” used in these bylaws shall refer to any applicable laws, rules or regulations, including the North Carolina Business
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Section 321(b) Consent
Pursuant to Section 321(b) of the Trust Indenture Act of 1939, as amended, Truist Bank hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon requests therefor.
Dated: July 17, 2023
| Truist Bank |
| By: | /s/ Patrick Giordano | |
| Name: | Patrick Giordano | |
| Title: | Vice President |
CONSOLIDATED BALANCE SHEETS
TRUIST FINANCIAL CORPORATION AND SUBSIDIARIES
| (Dollars in millions, except per share data, shares in thousands) | Dec 31, 2022 | Dec 31, 2021 | ||||||
| Assets | ||||||||
| Cash and due from banks | $ | 5,379 | $ | 5,085 | ||||
| Interest-bearing deposits with banks | 16,042 | 15,210 | ||||||
| Securities borrowed or purchased under agreements to resell | 3,181 | 4,028 | ||||||
| Trading assets at fair value | 4,905 | 4,423 | ||||||
| AFS securities at fair value | 71,801 | 153,123 | ||||||
| HTM securities ($47,791 and $1,495 at fair value, respectively) | 57,713 | 1,494 | ||||||
| LHFS (including $1,065 and $3,544 at fair value, respectively) | 1,444 | 4,812 | ||||||
| Loans and leases (including $18 and $23 at fair value, respectively) | 325,991 | 289,513 | ||||||
| ALLL | (4,377 | ) | (4,435 | ) | ||||
| Loans and leases, net of ALLL | 321,614 | 285,078 | ||||||
| Premises and equipment | 3,605 | 3,700 | ||||||
| Goodwill | 27,013 | 26,098 | ||||||
| CDI and other intangible assets | 3,672 | 3,408 | ||||||
| Loan servicing rights at fair value | 3,758 | 2,633 | ||||||
| Other assets (including $1,582 and $3,436 at fair value, respectively) | 35,128 | 32,149 | ||||||
| Total assets | $ | 555,255 | $ | 541,241 | ||||
| Liabilities | ||||||||
| Noninterest-bearing deposits | $ | 135,742 | $ | 145,892 | ||||
| Interest-bearing deposits | 277,753 | 270,596 | ||||||
| Short-term borrowings (including $1,551 and $1,731 at fair value, respectively) | 23,422 | 5,292 | ||||||
| Long-term debt | 43,203 | 35,913 | ||||||
| Other liabilities (including $2,971 and $586 at fair value, respectively) | 14,598 | 14,277 | ||||||
| Total liabilities | 494,718 | 471,970 | ||||||
| Shareholders’ Equity | ||||||||
| Preferred stock | 6,673 | 6,673 | ||||||
| Common stock, $5 par value | 6,634 | 6,639 | ||||||
| Additional paid-in capital | 34,544 | 34,565 | ||||||
| Retained earnings | 26,264 | 22,998 | ||||||
| AOCI, net of deferred income taxes | (13,601 | ) | (1,604 | ) | ||||
| Noncontrolling interests | 23 | — | ||||||
| Total shareholders’ equity | 60,537 | 69,271 | ||||||
| Total liabilities and shareholders’ equity | $ | 555,255 | $ | 541,241 | ||||
| Common shares outstanding | 1,326,829 | 1,327,818 | ||||||
| Common shares authorized | 2,000,000 | 2,000,000 | ||||||
| Preferred shares outstanding | 223 | 223 | ||||||
| Preferred shares authorized | 5,000 | 5,000 | ||||||
The accompanying notes are an integral part of these consolidated financial statements.
Truist Financial Corporation 83