Exhibit 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
WATSCO, INC.
ARTICLE I
The name of the Corporation is Watsco, Inc.
ARTICLE II
The post office address of the principal office of this corporation in
the State of Florida is 2665 S. Bayshore Drive, Suite 901, Coconut Grove,
Florida 33133. The Board of Directors may from time to time move the office to
any other place in or outside the State of Florida.
ARTICLE III
A. The aggregate number of shares of Capital Stock which the
Corporation shall have the authority to issue is 70,000,000 shares, of which
60,000,000 shares, at the par value of $.50 per share, shall be designated as
Common Stock and 10,000,000 shares, at the par value of $.50 per share, shall be
designated as Class B Common Stock.
B. The Common Stock and the Class B Common Stock shall be identical
in all respects and shall have equal rights and privileges, except as otherwise
provided in this Article III.
(1) DIVIDENDS: Subject to sub-paragraph 2 below, whenever a
dividend is paid to the shareholders of Class B Common Stock, the Corporation
shall also pay to the holders of Common Stock a dividend per share at least
equal to the dividend per share paid to the holders of the Class B Common Stock.
The Corporation may pay dividends to the holders of Common Stock in excess of
dividends paid (or without paying dividends) to holders of Class B Common Stock.
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(2) STOCK DISTRIBUTIONS: If at any time a stock distribution is
to be paid, such stock distribution may be declared and paid only as follows:
(a) So long as no shares of Common Stock have been issued or
are outstanding, shares of Common Stock may be paid to holders of Class B Common
Stock.
(b) Shares of Common Stock may be paid to holders of Common
Stock and shares of Class B Common Stock may be paid to holders of Class B
Common Stock.
(c) Whenever a stock distribution is paid, the same number of
shares shall be paid with respect to each outstanding share of Common Stock or
Class B Common Stock. The Corporation shall not combine or subdivide shares of
either class without at the same time making an appropriate combination or
subdivision of shares of the other class.
(3) VOTING: Voting power shall be divided between the Common
Stock and Class B Common Stock as follows:
(a) With respect to the election of directors, holders of
Common Stock, voting as a separate class, shall be entitled to elect
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that number of directors which constitute 25% of the authorized members of the
Board of Directors and, if such 25% is not a whole number, the holders of such
Common stock shall be entitled to elect the nearest higher whole number of
directors that is at least 25% of such membership. Holders of Class B Common
Stock, voting as a separate class, shall be entitled to elect the remaining
directors.
(b) The holders of Common Stock shall be entitled to vote as
a separate class on the removal, with or without cause, of any director elected
by the holders of Common Stock and the holders of Class B Common Stock shall be
entitled to vote as a separate class on the removal, with or without cause, of
any director elected by the holders of Class B Common Stock.
(c) The holders of the Common Stock and the holders of the
Class B Common Stock shall be entitled to vote as separate classes on such other
matters as may be required by law or these Amended and Restated Articles of
Incorporation to be submitted to such holders voting as separate classes.
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(d) Any vacancy in the office of a director elected by the
holders of the Common Stock may be filled by a vote of such holders voting as a
separate class and any vacancy in the office of a director elected by the
holders of the Class B Common Stock may be filled by a vote of such holders
acting as a separate class or, in the absence of a shareholder vote, in the case
of a vacancy of a director elected by either class, such vacancy may be filled
by the remaining directors as provided in the By-Laws. Any director elected by
the Board of Directors to fill a vacancy shall serve until the next election of
directors by shareholders and his or her successor has been elected and
qualified.
(e) The holders of Common Stock and Class B Common Stock
shall in all matters not specified in Sections (a), (b), (c) or (d) of this sub-
paragraph 3 ("VOTING") vote together as a single class; provided that the
holders of Common Stock shall have one (1) vote per share and the holders of
Class B Common Stock shall have ten (10) votes per share.
(f) The Common Stock will not have the right to elect the
directors set forth in paragraphs (a) and (d) above if, on the record date for
any shareholder meeting at which directors are to be elected, the number of
issued and outstanding shares of Common Stock is less than ten percent (10%) of
the aggregate number of issued and outstanding shares of Common Stock and Class
B Common Stock. In such cases, all directors to be elected at such meeting shall
be elected by holders of Common Stock and Class B Common Stock voting together
as a single class, provided that, with respect to said election, the holders of
Common Stock will have one (1) vote per share and holders of Class B Common
Stock, will have ten (10) votes per share.
(g) If, on the record date for any shareholder meeting at
which directors are to be elected, the number of issued and outstanding shares
of Class B Common Stock is less than 12-1/2% of the aggregate number of issued
and outstanding shares of Common Stock and Class B Common Stock, then the
holders of Common Stock shall continue to elect a number of Class A Directors
equal to 25% of the total number of directors constituting the entire board of
directors and, in addition, shall vote together with the holders of Class B
Common Stock to elect the Class B Directors to be elected at such meeting, with
the holders of Common Stock entitled to one (1) vote per share and the holders
of Class B Common Stock entitled to ten (10) votes per share.
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(h) Notwithstanding anything in this sub- paragraph 3
("VOTING") to the contrary, the holders of Common Stock shall have exclusive
voting power on all matters at any time when no Class B Common Stock
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is issued and outstanding.
(4) CONVERSION: Each holder of record of Class B Common Stock
may at any time or may from time to time, in such holders' sole discretion and
at such holders' option, convert any whole number or all of such holders' Class
B Common Stock into fully paid and non-assessable shares of Common Stock at the
rate of one share of Common Stock for each share of Class B Common Stock
surrendered for conversion. Any such conversion may be effected by any holder of
Class B Common Stock surrendering such holder's certificate or certificates for
the Class B Common Stock to be converted, duly endorsed, at the office of the
Corporation or any transfer agent for the Class B Common Stock, together with
written notice to the Corporation at such office that such holder elects to
convert all or a specified number of Class B Common Stock and stating the name
or names in which such holder desires the certificate or certificates for such
Common Stock to be issued. Promptly thereafter, the Corporation shall issue and
deliver to such holder or holder's nominee, a certificate or certificates for
the number of shares of Common Stock to which such holder will be entitled as
aforesaid. Such conversion shall be deemed to have been made at the close of
business at date of such surrender and the person or persons entitled to receive
the Common Stock issuable on such conversion shall be treated for all purposes
as the record holder or holders of such Common Stock on that date.
No fractional shares of Common Stock shall be issued on conversion of any
Class B Common Stock but, in lieu thereof, the Corporation shall pay in cash
therefor the pro rata fair market value of any such fraction. Such fair market
value shall be based, in the case of publicly traded securities, on the last
sale price for such securities on the business day next prior to the date such
fair market value is to be determined or, in the event no sale is made on that
day, the average of the closing bid and ask prices for that day on the principal
stock exchange on which the Common Stock is traded or, if the Common Stock is
not then listed on a national securities exchange, the average of the closing
bid and ask prices for the day quoted by the NASDAQ System or, if the Common
Stock is not then quoted by the NASDAQ System, the fair market value on such day
determined by a qualified independent appraiser who is expert in evaluating such
property and appointed by the Board of Directors of the Corporation. Any such
determination of fair market value shall be final and binding on the Corporation
and on each holder of Common Stock or Class B Common Stock.
ARTICLE IV
This Corporation shall have perpetual existence.
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ARTICLE V
The Corporation shall have not less than three directors and not more than
nine to be divided, as nearly as possible, into three equal classes, Class A,
Class B, and Class C to serve in staggered terms of office of three years
apiece.
Therefore, approximately one-third of the members of the Board of Directors
shall be elected every three years to serve for a term of three years until
their successors are duly elected and qualified. Vacancies in the Board of
Directors shall be filled by the majority of the directors remaining in office
for the unexpired term of office created by the vacancy; provided, however, that
vacancies created by an increase in the number of directors by the Board of
Directors between annual stockholders meetings shall be filled by a majority of
the directors remaining in office until the next annual meeting of stockholders.
ARTICLE VI
The Corporation reserves the right to amend or repeal any provision
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contained in these Amended and Restated Articles of Incorporation, and any right
conferred upon the shareholders is subject to this reservation.
The By-Laws of the Corporation may be amended from time to time by either
the shareholders or the directors, but the directors may not alter or amend any
By-Law adopted by the shareholders.
Ownership of stock shall not be required to make any person eligible to
hold office either as an officer or director of this Corporation.
The shareholders may, by By-Law provision or by shareholders' agreement,
recorded in the minute book, impose such restrictions on the sale, transfer, or
encumbrance of the stock of this Corporation as they may see fit.
Any subscriber or stockholder present at any meeting, either in person or
by proxy, and any director present in person at any meeting of the Board of
Directors shall conclusively be deemed to have received proper notice of such
meeting unless he shall make objection at such meeting to any defect or
insufficiency of notice.
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Any contract or other transaction between the Corporation and one or more
of its directors, or between the Corporation and any firm of which one or more
of its directors are members or employees, or in which they are interested, or
between the Corporation and any corporation or association of which one or more
of it directors are shareholders, members, directors, officers, or employees, or
in which they are interested, shall be valid for all purposes, notwithstanding
the presence of such director or directors at the meeting of the Board of
Directors of the Corporation, which acts upon, or in reference to, such contract
or transaction, and notwithstanding his or their participation in such action,
if the fact of such interest shall be disclosed or known to the Board of
Directors and the Board of Directors shall, nevertheless, authorize, approve and
ratify such contract or transactions by a vote of a majority of the directors
present, such interested director or directors to be counted in determining
whether a quorum is present, but not to be counted in calculating the majority
necessary to carry such vote. This section shall not be construed to invalidate
any contract or other transaction which would otherwise be valid under the
common and statutory law applicable thereto.
The Board of Directors is hereby specifically authorized to make provisions
for reasonable compensation to its members for their services as directors, and
to fix the basis and conditions upon which such compensation shall be paid. Any
director of the Corporation may also serve the Corporation in any other capacity
and receive compensation in any form.
ARTICLE VII
The Corporation shall indemnify any director, officer, or employee, or
former director, officer or employee of the Corporation, or any person who may
have served at its request as a director, officer or employee of another
corporation in which it owns shares of capital stock, or of which it is a
creditor, against expenses actually and necessarily incurred by him in
connection with the defense of any action suit or proceeding in which he is made
a party by reason of being or having been such director, officer or employee,
except in relation to matters as to which he shall be adjudged in such action,
suit or proceeding to be liable for negligence or misconduct in the performance
of duty. The Corporation may also reimburse to any director, officer or employee
the reasonable costs of settlement of any such action, suit or proceeding, if it
shall be found by a majority of a committee composed of the directors not
involved in the matter in controversy (whether or not a quorum) that it was to
the interests of the corporation that such settlement be made and that such
director, officer or employee was not guilty of negligence or misconduct. Such
rights of indemnification and reimbursement shall not be deemed exclusive of any
other rights to which such director, officer or employee
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may be entitled under any By-Law, agreement, vote of shareholders, or otherwise.
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ARTICLE VIII
No shareholder of the Corporation shall have any right to purchase his pro
rata share of any new issue of securities of any kind or class of the
Corporation, sold by the Corporation.
WATSCO, INC.
/s/ Barry S. Logan
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Barry S. Logan
Vice President - Finance and Secretary
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