As filed with the Securities and Exchange Commission on January 27, 2000
Registration No. 333-_____
===============================================================================
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
------------------------
HEI, Inc.
(Exact name of registrant as specified in its charter)
Minnesota 41-0944876
- ------------------------------- -----------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
PO Box 5000
1495 Steiger Lake Lane
Victoria, Minnesota 55386
(612) 443-2500
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
------------------------
HEI, Inc. 1998 Stock Option Plan for Nonemployee Directors
As amended through January 20, 2000
(Full title of the plan)
-----------------------
Anthony J. Fant
Chairman and Chief Executive Officer
HEI, Inc.
PO Box 5000
1495 Steiger Lake Lane
Victoria, Minnesota 55386
(612) 443-2500
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================================================================
Title of Securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price per unit aggregate offering price registration fee
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.05 per share........... 425,000(1) $10.75(2) $4,568,750(3) $1,206(4)
==============================================================================================================================
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
1998 Stock Option Plan for Nonemployee Directors, as amended through
January 20, 2000, with respect to which no additional consideration will
be paid (i) in the event of a stock dividend, reverse stock split, split
up, recapitalization or capital adjustments and (ii) that are issuable
pursuant to dividend equivalent rights relating to stock options issued
under the 1998 Stock Option Plan for Nonemployee Directors, as amended
through January 20, 2000.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act").
(3) Calculated pursuant to Rule 457(c) and (h) under the Securities Act based
on the average of the high and low prices for the Common Stock reported
by the Nasdaq National Market on January 24, 2000.
(4) In accordance with Rule 457(h), the filing fee is based on the maximum
number of the registrant's securities issuable under the 1998 Stock
Option Plan for Nonemployee Directors, as amended through January 20,
2000, that are covered by this Registration Statement.
===============================================================================
===============================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be sent or given to participating employees as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
Such documents and the documents incorporated by reference herein pursuant to
Item 3 of Part II hereof, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
HEI, Inc. (the "Company") hereby incorporates by reference the documents
listed in (a), (b), (c) and (d) below which have previously been filed with
the Securities and Exchange Commission.
(a) The Annual Report on Form 10-K for the fiscal year ended August 31,
1999.
(b) The Quarterly Report on Form 10-Q for the quarter ended December 4,
1999.
(c) The Company's Definitive Proxy Statement filed on November 24, 1999.
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement, registering the Company's Common
Stock under Section 12(g) of the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities
remaining unsold shall be deemed to be incorporated by reference herein and to
be part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF EXPERTS AND COUNSEL.
None.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 302A.521 of the Minnesota Statutes (the "Minnesota Business
Corporation Act") requires, among other things, the indemnification of persons
made or threatened to be made a party to a proceeding by reason of acts or
omissions performed in their official capacity as an officer, director, member
of a committee of the board, or employee of the registrant 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 attorney's fees and disbursements) incurred by
the person in connection with the proceeding if, with respect to the acts or
omissions of the person complained of in the proceeding, the person is not
otherwise indemnified by another organization or employee benefit plan, acted
in good faith, received no improper benefit, believed that such conduct was in
the best interests of the registrant, and, in the case of criminal
proceedings, had no reason to believe that the conduct was unlawful. In
addition, Section 302A.521, Subd. 3, requires payment by the registrant, upon
written request, of reasonable expenses in advance of final disposition of a
proceeding in certain instances. A decision as to required indemnification is
made by the board by a majority of a quorum (not including, for purposes of
determining either a majority or the presence of a quorum, any directors who
are parties to the proceeding), by a majority of a designated committee of the
board, consisting solely of two or more directors who are not parties to the
proceeding, by special legal counsel, by the shareholders (not including, for
purposes of determining the presence of a quorum, the shares held by any
person who is a party to the proceeding and not including the vote of any such
person) or by a court.
Article IX of the Bylaws of the Company, as amended, and indemnification
agreements between the registrant and certain of its officers and directors,
provide for indemnification of officers and directors and certain other
persons against liabilities and expenses to the fullest extent authorized by
the Minnesota Business Corporation Act, as the Act exists or is amended (but
in the case of any such amendment, only to the extent that such amendment
permits the corporation to provide broader indemnification rights than were
permitted under the Act prior to its amendment)
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS
4(a)* Restated Articles of Incorporation of the Company, as amended.
4(b)** By-Laws of the Company, as amended.
4(c) HEI, Inc. 1998 Stock Option Plan for NonEmployee Directors,
as amended through January 20, 2000.
5 Opinion of Gray, Plant, Mooty, Mooty & Bennett, P.A.
23(a) Consent of Gray, Plant, Mooty, Mooty & Bennett, P.A. (included as part
of Exhibit 5).
23(b) Consent of KPMG LLP.
23(c) Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included on page 6).
* Previously filed as an exhibit to Annual Report on Form 10-K for the year
ended August 31, 1990, and incorporated herein by reference.
** Previously filed as an exhibit to Annual Report on Form 10-K for the year
ended August 31, 1998 and incorporated herein by reference.
ITEM 9. UNDERTAKINGS
The undersigned registrants hereby undertake:
(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;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in 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 the 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.
(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 that is incorporated by
reference in this registration statement shall deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at the 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 provisions referred to in Item 6 of
this registration statement, 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 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 Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, HEI, Inc.
certifies that is has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis, State of Minnesota, on January 20,
2000.
HEI, INC.
By: /s/ Anthony J. Fant
---------------------------------
Anthony J. Fant
Chairman of the Board and Chief
Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of HEI, Inc. hereby severally constitute Anthony J. Fant, Jerald H.
Mortenson and Edwin W. Finch, III and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the Registration Statement
filed herewith and any and all amendments to said Registration Statement, and
generally to do all such things in our names and in our capacities as officers
and directors to enable HEI, Inc. to comply with the provisions of the
Securities Act of 1933, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be
signed by our said attorneys, or any of them, to said Registration Statement
and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Anthony J. Fant Chairman of the Board and Chief Executive Officer January 20, 2000
- --------------------------- (Principal Executive Officer)
Anthony J. Fant
/s/ Jerald H. Mortenson Vice President of Finance and Administration, Chief Financial January 20, 2000
- --------------------------- Officer and Treasurer
Jerald H. Mortenson (Principal Financial Officer and Principal Accounting Officer)
/s/ Edwin W. Finch, III Director January 20, 2000
- ---------------------------
Edwin W. Finch, III
/s/ David W. Ortlieb Director January 20, 2000
- ---------------------------
David W. Ortlieb
/s/ Steve E. Tondera, Jr. Director January 20, 2000
- -------------------------
Steve E. Tondera, Jr.
Director
- ------------------------
Mack V. Traynor, III
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
4(a)* Restated Articles of Incorporation
of the Company, as amended.
4(b)** By-Laws of the Company, as amended.
4(c) HEI, Inc. 1998 Stock Option Plan for
NonEmployee Directors, as amended. 8
5 Opinion of Gray, Plant, Mooty, Mooty & Bennett, P.A. 13
23(a) Consent of Gray, Plant, Mooty, Mooty & Bennett, P.A.
(included as part of Exhibit 5).
23(b) Consent of KPMG LLP. 14
23(c) Consent of PricewaterhouseCoopers LLP. 15
24 Power of Attorney (included on page 6).
* Previously filed as an exhibit to Annual Report on Form 10-K for the year
ended August 31, 1990, and incorporated herein by reference.
** Previously filed as an exhibit to Annual Report on Form 10-K for the year
ended August 31, 1998 and incorporated herein by reference.
EXHIBIT 4(c)
HEI, INC.
1998 STOCK OPTION PLAN FOR NONEMPLOYEE DIRECTORS
As amended through January 20, 2000
1. Purpose. The purpose of this Plan is to attract and retain qualified
individuals to serve as nonemployee members of the Board of Directors of HEI,
Inc. (the "Company") and to provide such persons with appropriate incentives.
The Company has adopted the Plan effective as of November 18, 1998, subject to
the approval of the Company's stockholders, and unless extended by amendment
in accordance with the terms of the Plan, no Option Rights will be granted
hereunder after the tenth anniversary of such effective date. Upon the
approval of the adoption of the Plan by the Company's stockholders, the Plan
will replace and supersede the Company's prior Stock Option Plan for
Nonemployee Directors (the "1991 Plan").
2. Definitions. As used in this Plan,
"Board" means the Board of Directors of the Company.
"Change in Control" means a change in control of the Company, which will
be deemed to have occurred after the effective date of this Plan if:
(i) any "person" as such term is used in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof
except that such term shall not include (A) the Company or any of its
subsidiaries, (B) any trustee or other fiduciary holding securities under
an employee benefit plan of the Company or any of its affiliates, (C) an
underwriter temporarily holding securities pursuant to an offering of
such securities, (D) any corporation owned, directly or indirectly, by
the stockholders of the Company in substantially the same proportions as
their ownership of Common Shares, or (E) any person or group as used in
Rule 13d-1(b) under the Exchange Act, is or becomes the Beneficial Owner,
as such term is defined in Rule 13d-3 under the Exchange Act, directly or
indirectly, of securities of the Company (not including in the securities
beneficially owned by such person any securities acquired directly from
the Company or its affiliates other than in connection with the
acquisition by the Company or its affiliates of a business) representing
50% or more of the combined voting power of the Company's then
outstanding securities.
(ii) during any period of two consecutive years, individuals who at
the beginning of such period constitute the Board, and any new director
(other than (A) a director designated by a person who has entered into an
agreement with the Company to effect a transaction described in clause
(i), (iii), or (iv) of this definition or (B) a director whose initial
assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation,
relating to the election of directors of the Company) whose election by
the Board or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the beginning of the period
or whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority thereof;
(iii) there is consummated a merger or consolidation of the Company
or any direct or indirect subsidiary of the Company with any other
corporation, other than (A) a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or any
parent thereof) in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company or any subsidiary of the Company, at least 75% of the combined
voting power of the securities of the Company or such surviving entity or
any parent thereof outstanding immediately after such merger or
consolidation, or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
person (as defined above) is or becomes the beneficial owner, directly or
indirectly, of securities of the Company (not including in the securities
beneficially owned by such person any securities acquired directly from
the Company or its affiliates other than in connection with the
acquisition by the Company or its affiliates of a business) representing
25% or more of the combined voting power of the Company's then
outstanding securities; or
(iv) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or there is consummated an
agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets (or any transaction having a
similar effect) other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity, at least 75% of
the combined voting power of the voting securities of which are owned by
stockholders of the Company in substantially the same proportions as
their ownership of the Company immediately prior to such sale.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Common Shares" means (i) shares of the voting common stock of the
Company and (ii) any security into which Common Shares may be converted by
reason of any transaction or event of the type referred to in Section 6 of
this Plan.
"Date of Grant" means the date specified by the Board on which a grant of
Option Rights shall become effective, which shall not be earlier than the date
on which the Board takes action with respect thereto.
"Disability" means any physical or mental illness, injury or condition
that would qualify a Participant for benefits under any long-term disability
benefit plan maintained by the Company or any Subsidiary and applicable to
such Participant (or, if the Participant is not eligible for any such plan, to
senior executive officers of the Company).
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Market Value per Share" means the fair market value of the Common Shares
as determined by the Board from time to time.
"Option Price" means the purchase price payable upon the exercise of an
Option Right.
"Option Right" means the right to purchase Common Shares from the Company
upon the exercise of a nonqualified stock option granted pursuant to Section 4
of this Plan.
"Participant" means an individual who, at the time of any automatic award
of Option Rights pursuant to Section 4 below, is a member of the Board and
both a "non-employee director" within the meaning of Rule 16b-3 and an
"outside director" within the meaning of Section 162(m) of the Code.
"Rule 16b-3" means Rule 16b-3, as promulgated and amended from time to
time by the Securities and Exchange Commission under the Exchange Act, or any
successor rule to the same effect.
"Subsidiary" means a corporation, partnership, joint venture,
unincorporated association or other entity in which the Company has a direct
or indirect ownership or other equity interest.
3. Shares Available under the Plan.
(a) Subject to adjustment as provided in Section 6 of this Plan, the
number of Common Shares which may be issued or transferred upon the exercise
of Option Rights shall not in the aggregate exceed 425,000 Common Shares
(including any Common Shares remaining under the 1991 Plan), which may be
Common Shares of original issuance or Common Shares held in treasury or a
combination thereof. For the purposes of this Section 3(a):
(i) Upon payment in cash of the benefit provided by any award
granted under this Plan, any Common Shares that were covered by that
award shall again be available for issuance or transfer hereunder; and
(ii) Upon the full or partial payment of any Option Price by the
transfer to the Company of Common Shares or upon satisfaction of tax
withholding obligations in connection with any such exercise or any other
payment made or benefit realized under this Plan by the transfer or
relinquishment of Common Shares, there shall be deemed to have been
issued or transferred under this Plan only the net number of Common
Shares actually issued or transferred by the Company less the number of
Common Shares so transferred or relinquished.
4. Option Rights. Subject to adjustment as provided in Section 6 of this
Plan, the Board shall automatically grant to each Participant Option Rights to
purchase Common Shares upon such terms and conditions as the Board may
determine in accordance with the following provisions:
(a) Effective as of November 18, 1998, each individual who was then a
Participant shall be granted Option Rights to purchase 55,000 Common Shares.
Thereafter, commencing with the annual meeting of the Company's stockholders
in January 2000, each individual who is a Participant upon the adjournment of
an annual meeting of the Company's stockholders shall be granted Option Rights
to purchase 10,000 Common Shares, effective as of the date of such annual
meeting.
(b) Each grant shall specify an Option Price per Common Share, which
shall equal the Market Value per Share on the Date of Grant.
(c) Each grant shall specify the form of consideration to be paid in
satisfaction of the Option Price and the manner of payment of such
consideration, which may include (i) cash in the form of currency or check or
other cash equivalent acceptable to the Company, (ii) nonforfeitable,
unrestricted Common Shares, which are already owned by the Participant, (iii)
any other legal consideration that the Board may deem appropriate, on such
basis as the Board may determine in accordance with this Plan and (iv) any
combination of the foregoing.
(d) Any grant may, if there is then a public market for the Common
Shares, provide for deferred payment of the Option Price from the proceeds of
sale through a broker of some or all of the Common Shares to which the
exercise relates.
(e) Successive grants may be made to the same Participant regardless of
whether any Option Rights previously granted to the Participant remain
unexercised.
(f) Each grant shall specify that the Option Rights awarded thereby shall
become exercisable in full upon the earliest to occur of (i) the seventh
anniversary of the Date of Grant, (ii) the first date after the Date of Grant
on which the Market Value per Share of the Common Shares (as adjusted as
provided in Section 6 of this Plan) equals or exceeds $25.00, (iii) the date
of the Participant's death or Disability, and (iv) the effective date of a
Change in Control.
(g) Option Rights granted pursuant to this Section 4 shall be
nonqualified stock options.
(h) No Option Right granted pursuant to this Section 4 may be exercised
more than 10 years from the Date of Grant.
(i) Each grant shall be evidenced by an agreement, which shall be
executed on behalf of the Company by any designated officer thereof and
delivered to and accepted by the Participant and shall contain such terms and
provisions as the Board may determine consistent with this Plan.
5. Transferability. No Option Right granted under this Plan may be
transferred by a Participant, except (i) by will or the laws of descent and
distribution, (ii) to one or more members of the Participant's immediate
family, or (iii) to a trust established for the benefit of the Participant
and/or one or more members of the Participant's immediate family. Option
Rights granted under this Plan may not be exercised during a Participant's
lifetime except by (i) the Participant, (ii) a transferee of the Participant
described in the preceding sentence, or (iii) in the event of the legal
incapacity of the Participant or any such transferee, by the guardian or legal
representative of the Participant or such transferee (as applicable) acting in
a fiduciary capacity on behalf thereof under state law and court supervision.
6. Adjustments.
(a) The Board may make or provide for such adjustments in the number of
Common Shares covered by outstanding Option Rights granted hereunder, the
Option Prices per Common Share applicable to any such Option Rights, and the
kind of shares (including shares of another issuer) covered thereby, as the
Board may in good faith determine to be equitably required in order to prevent
dilution or expansion of the rights of Participants that otherwise would
result from (i) any stock dividend, stock split, combination of shares,
recapitalization or similar change in the capital structure of the Company or
(ii) any merger, consolidation, spin-off, spin-out, split-off, split-up,
reorganization, partial or complete liquidation or other distribution of
assets, issuance of warrants or other rights to purchase securities or any
other corporate transaction or event having an effect similar to any of the
foregoing. In the event of any such transaction or event, the Board may
provide in substitution for any or all outstanding awards under this Plan such
alternative consideration as it may in good faith determine to be equitable
under the circumstances and may require in connection therewith the surrender
of all awards so replaced. Moreover, the Board may on or after the Date of
Grant provide in the agreement evidencing any award under this Plan that the
holder of the award may elect to receive an equivalent award in respect of
securities of the surviving entity of any merger, consolidation or other
transaction or event having a similar effect, or the Board may provide that
the holder will automatically be entitled to receive such an equivalent award.
The Board may also make or provide for such adjustments in the maximum numbers
of Common Shares specified in Section 3 of this Plan as the Board may in good
faith determine to be appropriate in order to reflect any transaction or event
described in this Section 6.
(b) If another corporation is merged into the Company or the Company
otherwise acquires another corporation, the Board may elect to assume under
this Plan any or all outstanding stock options or other awards granted by such
corporation under any stock option or other plan adopted by it prior to such
acquisition. Such assumptions shall be on such terms and conditions as the
Board may determine; provided, however, that the awards as so assumed do not
contain any terms, conditions or rights that are inconsistent with the terms
of this Plan. Unless otherwise determined by the Board, such awards shall not
be taken into account for purposes of the limitations contained in Section 3
of this Plan.
7. Fractional Shares. The Company shall not be required to issue any
fractional Common Shares pursuant to this Plan. The Board may provide for the
elimination of fractions or for the settlement thereof in cash.
8. Withholding Taxes. To the extent that the Company is required to
withhold federal, state, local or foreign taxes in connection with any payment
made or benefit realized by a Participant or other person under this Plan, and
the amounts available to the Company for the withholding are insufficient, it
shall be a condition to the receipt of any such payment or the realization of
any such benefit that the Participant or such other person make arrangements
satisfactory to the Company for payment of the balance of any taxes required
to be withheld. At the discretion of the Board, any such arrangements may
without limitation include voluntary or mandatory relinquishment of a portion
of any such payment or benefit or the surrender of outstanding Common Shares.
The Company and any Participant or such other person may also make similar
arrangements with respect to the payment of any taxes with respect to which
withholding is not required.
9. Administration of the Plan.
(a) This Plan shall be administered by the Board. A majority of the Board
shall constitute a quorum, and the acts of the members of the Board who are
present at any meeting thereof at which a quorum is present, or acts
unanimously approved by the members of the Board in writing, shall be the acts
of the Board.
(b) The interpretation and construction by the Board of any provision of
this Plan or any agreement, notification or document evidencing the grant of
Option Rights, and any determination by the Board pursuant to any provision of
this Plan or any such agreement, notification or document, shall be final and
conclusive. No member of the Board shall be liable for any such action taken
or determination made in good faith.
10. Amendments and Other Matters.
(a) This Plan may be amended from time to time by the Board; provided,
however, that except as expressly authorized by this Plan, no such amendment
shall cause this Plan to cease to satisfy any applicable condition of Rule
16b-3 without the further approval of the stockholders of the Company.
(b) With the concurrence of the affected Participant, the Board may
cancel any agreement evidencing Option Rights or any other award granted under
this Plan. In the event of any such cancellation, the Board may authorize the
granting of new Option Rights or other awards hereunder, which may or may not
cover the same number of Common Shares as had been covered by the cancelled
Option Rights or other award, at such Option Price, in such manner and subject
to such other terms, conditions and discretion as would have been permitted
under this Plan had the cancelled Option Rights or other award not been
granted.
(c) This Plan shall not confer upon any Participant any right with
respect to continuance of service with the Board, the Company or any
Subsidiary and shall not interfere in any way with any right that the Company,
its stockholders or any Subsidiary would otherwise have to terminate any
Participant's service at any time.
(e) Any award that may be made pursuant to an amendment to this Plan that
shall have been adopted without the approval of the stockholders of the
Company shall be null and void if it is subsequently determined that such
approval was required under the terms of the Plan or applicable law.
(f) Unless otherwise determined by the Board, this Plan is intended to
comply with Rule 16b-3 at all times that awards hereunder are subject to such
Rule.
EXHIBIT 5
3400 CITY CENTER
33 SOUTH SIXTH STREET
MINNEAPOLIS, MN 55402-3796
612 343-2800
FAX: 612 333-0066
WEB SITE: www.gpmlaw.com
January 27, 2000
HEI, Inc.
P.O. Box 5000
1495 Steiger Lake Lane
Victoria, Minnesota 55386
Ladies and Gentlemen:
We have acted as special counsel for HEI, Inc., a Minnesota corporation
(the "Company"), which has filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") for the purpose of registering 425,000 shares
of Common Stock, par value $.05 per share (the "Common Stock"), of the Company
initially issuable upon the exercise of stock options granted pursuant to the
HEI, Inc. 1998 Stock Option Plan for Nonemployee Directors as amended through
January 20, 2000 (the "Plan").
We have examined such documents and have reviewed such questions of law
as we have deemed necessary and appropriate for the purposes of this opinion.
Based upon the foregoing, we are of the opinion that the shares of
Common Stock initially issuable pursuant to the Plan have been duly authorized
and, upon issuance, delivery and payment therefor in accordance with the terms
of the Plan and its associated stock option agreements, will be validly issued,
fully paid and nonassessable.
Our opinions expressed above are limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Gray, Plant, Mooty, Mooty & Bennett, P.A.
GRAY, PLANT, MOOTY, MOOTY & BENNETT, P.A. ATTORNEYS AT LAW
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
HEI, Inc.:
We consent to the use of our report dated October 6, 1999, except as to
note 5 which is as of October 22, 1999, incorporated by reference in this Form
S-8.
/s/ KPMG LLP
Minneapolis, Minnesota
January 21, 2000
EXHIBIT 23(c)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 (HEI, Inc. 1998 Stock Option Plan for Nonemployee
Directors) of our report dated September 26, 1997, relating to the financial
statements for the year ended August 31, 1997, which appear in HEI, Inc.'s
Annual Report on Form 10-K for the year ended August 31, 1999.
/s/ PRICEWATERHOUSECOOPERS LLP
Minneapolis, Minnesota
January 21, 2000
