As filed with the Securities and Exchange Commission on April 10, 2002
Registration Statement No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WATSCO, INC.
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(Exact name of registrant as specified in its charter)
Florida 59-0778222
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(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization)
2665 South Bayshore Drive
Suite 901
Coconut Grove, Florida 33133
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(Address of Principal Executive Offices)
2001 Incentive Compensation Plan
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Barry S. Logan
Vice President and Secretary
Watsco, Inc.
2665 South Bayshore Drive
Suite 901
Coconut Grove, Florida 33133
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(Name and address of agent for service)
(305) 714-4100
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(Telephone number, including area code, of agent for service)
Copy to:
Rebecca R. Orand, Esq.
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
(305) 579-0500
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed
Title of securities Amount to be Offering price maximum aggregate Amount of
to be registered registered per share offering price registration fee
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Common Stock, par value $0.50, 3,000,000 $16.94 (1) $44,253,121.17 (1) $4,071.29 (1)
underlying stock options previously shares
issued or to be issued under the 2001
Incentive Plan
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Class B Common Stock, par value $0.50, 3,000,000 $17.00 (2) $42,662,625.40 (2) $3,924.96 (2)
underlying stock options previously shares
issued under the 2001 Incentive Plan
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(1) Estimated solely for the purpose of calculating the registration fee and
computed in accordance with Rule 457(h) of the Securities Act of 1933, as
amended, on the basis of (i) the exercise price of $11.40 with respect to
options to purchase 20,000 shares of the common stock, par value $0.50, of
the Company (the "Common Stock") granted under the 2001 Incentive Plan,
(ii) the exercise price of $11.95 with respect to options to purchase
10,000 shares of the Common Stock under the 2001 Incentive Plan, (iii) the
exercise price of $11.30 with respect to options to purchase 233,000 shares
of the Common Stock under the 2001 Incentive Plan, (iv) the exercise price
of $12.99 with respect to options to purchase 15,000 shares of the Common
Stock under the 2001 Incentive Plan, (v) the exercise price of $11.79 with
respect to options to purchase 60,000 shares of the Common Stock under the
2001 Incentive Plan, (vi) the exercise price of $14.15 with respect to
options to purchase 10,125 shares of the Common Stock under the 2001
Incentive Plan, (vii) the exercise price of $12.95 with respect to options
to purchase 15,000 shares of the Common Stock under the 2001 Incentive
plan, (viii) the exercise price of $13.07 with respect to 50,000 shares of
Restricted Common Stock granted under the 2001 Incentive Plan and (ix) the
average of the high and low prices reported on the New York Stock Exchange
(NYSE) of the Common Stock with respect to restricted shares granted or
options to purchase 2,324,643 shares of the Common Stock on April 5, 2002
to be granted under the 2001 Incentive Plan. This Registration Statement
also includes an indeterminable number of additional shares of Common Stock
which may be issued pursuant to the 2001 Incentive Plan as a result of
stock splits, stock dividends or similar transactions in accordance with
Rule 416 of the Securities Act of 1933.
(2) Estimated solely for the purpose of calculating the registration fee and
computed in accordance with Rule 457(h) of the Securities Act of 1933, as
amended, (i) the exercise price of $11.30 with respect to options to
purchase 200,000 shares of the Class B Common Stock under the 2001
Incentive Plan, (ii) the exercise price of $14.20 with respect to 62,232
shares of the Restricted Class B Common Stock granted under the 2001
Incentive Plan and (iii) the average of the high and low prices reported on
the American Stock Exchange (AMEX) of the Common Stock with respect to
restricted shares granted or options to purchase 2,324,643 shares of the
Class B Common Stock on April 5, 2002 to be granted under the 2001
Incentive Plan. This Registration Statement also includes an indeterminable
number of additional shares of Class B Common Stock which may be issued
pursuant to the 2001 Incentive Plan as a result of stock splits, stock
dividends or similar transactions in accordance with Rule 416 of the
Securities Act of 1933.
PART I. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We hereby incorporate by reference into this Registration Statement the
following documents or portions thereof as indicated:
(a) our Annual Report on Form 10-K for the year ended December 31,
2001;
(b) all other reports filed by us pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") since December 31, 2001; and
(c) the description of our Common Stock contained in our registration
statement on Form 8-A, including any amendments to such
registration statement;
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 hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of filing of such documents.
Any statement contained in this Registration Statement, or in a
document incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein, or in a subsequently filed document incorporated
herein by reference, 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 of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Cesar L. Alvarez, one of our directors, is the President and Chief
Executive Officer and a shareholder of Greenberg Traurig, P.A., our legal
counsel.
Item 6. Indemnification of Directors and Officers.
Florida Business Corporation Act. Section 607.0850 of the Florida
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Business Corporation Act (the "FBCA") generally permits us to indemnify our
directors, officers, employees or other agents who are subject to any
third-party actions because of their service to us if such persons acted in good
faith and in a manner they reasonably believed to be in, or not opposed to, our
best interests. If the proceeding is a criminal one, such person must also have
had no reasonable cause to believe his conduct was unlawful. In addition, we may
indemnify our directors, officers, employees or other agents who are subject to
derivative actions against expenses and amounts paid in settlement which do not
exceed, in the judgment of the board of directors, the estimated expense of
litigating the proceeding to conclusion, actually and reasonably incurred in
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connection with the defense or settlement of such proceeding, if such person
acted in good faith and in a manner such person reasonably believed to be in, or
not opposed to, our best interests. To the extent that a director, officer,
employee or other agent is successful on the merits or otherwise in defense of a
third-party or derivative action, such person will be indemnified against
expenses actually and reasonably incurred in connection therewith. This Section
also permits a corporation further to indemnify such persons by other means
unless a judgment or other final adjudication establishes that such person's
actions or omissions which were material to the cause of action constitute (1) a
crime (unless such person had reasonable cause to believe his conduct was lawful
or had no reasonable cause to believe it unlawful), (2) a transaction from which
he derived an improper personal benefit, (3) a transaction in violation of
Section 607.0834 of the FBCA (unlawful distributions to shareholders), or (4)
willful 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.
Furthermore, Section 607.0831 of the FBCA provides, in general, that no
director shall be personally liable for monetary damages to us or any other
person for any statement, vote, decision, or failure to act, regarding corporate
management or policy, unless: (a) the director breached or failed to perform his
duties as a director; and (b) the director's breach of, or failure to perform,
those duties constitutes (i) a violation of criminal law, unless the director
had reasonable cause to believe his conduct was lawful or had no reasonable
cause to believe his conduct was unlawful, (ii) a transaction from which the
director derived an improper personal benefit, either directly or indirectly,
(iii) a circumstance under which the liability provisions of Section 607.0834 of
the FBCA are applicable, (iv) in a proceeding by or in our right to procure a
judgment in our favor or by or in the right of a shareholder, conscious
disregard for our best interest, or willful misconduct, or (v) in a proceeding
by or in the right of someone other than us 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. The term "recklessness," as used above, means the action, or omission
to act, in conscious disregard of a risk: (a) known, or so obvious that it
should have been known, to the directors; and (b) known to the director, or so
obvious that it should have been known, to be so great as to make it highly
probable that harm would follow from such action or omission.
Amended and Restated Articles of Incorporation. Our Amended and
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Restated Articles of Incorporation, as amended, provide that we shall indemnify
any of our directors, officers, or employees, or former directors, officers or
employees, or any person who may have served at our request as a director,
officer or employee of another corporation in which we own shares of capital
stock, or of which we are 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. We may also reimburse 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 in our best interests 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
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rights to which such director, officer or employee may be entitled under any
Bylaw, agreement, vote of shareholders, or otherwise.
Insurance. In addition to the foregoing, the Registrant carries
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insurance permitted by the laws of Florida on behalf of directors, officers,
employees or agents which may cover, among other things, liabilities under the
Securities Act of 1933, as amended.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the "Act");
(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 volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
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 with or furnished to the Commission by
the Registrant pursuant to Section 13 or 15(d) of the Exchange
Act of 1934, as amended (the "Exchange Act") that are
incorporated by reference in this Registration Statement.
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(2) That, for the purpose of determining any liability under the Act,
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.
(b) The undersigned hereby undertakes that, for purposes of determining
any liability under the Act, each filing of the corporation's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) 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 Act may
be permitted to directors, officers and controlling persons of the corporation
pursuant to the foregoing provisions, or otherwise, the corporation 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 corporation of expenses incurred
or paid by a director, officer or controlling person of the corporation 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 corporation 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.
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SIGNATURES
Pursuant to the requirements of the Act, we certify that we have
reasonable grounds to believe that we meet all of the requirements for filing on
Form S-8 and have duly caused this Registration Statement to be signed on our
behalf by the undersigned, thereunto duly authorized, in the City of Miami,
State of Florida on April 10, 2002.
WATSCO, INC.
By: /s/ Albert H. Nahmad
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Name: Albert H. Nahmad
Title: President
By: /s/ Barry S. Logan
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Name: Barry S. Logan
Title: Vice President
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Albert H. Nahmad and Barry S. Logan, or either of them, as our true and
lawful attorney-in-fact, with full powers of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments, including any post-effective amendments, to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
to be filed in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact or
their substitutions, each acting alone, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Act, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
Signature Title Date
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/s/ Albert H. Nahmad Chairman of the Board and President April 10, 2002
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Albert H. Nahmad (principal executive officer)
/s/ Barry S. Logan Vice President and Secretary (principal April 10, 2002
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Barry S. Logan accounting officer)
/s/ Cesar L. Alvarez Director April 10, 2002
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Cesar L. Alvarez
/s/ David B. Fleeman Director April 10, 2002
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David B. Fleeman
/s/ George Fugelsang Director April 10, 2002
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George Fugelsang
/s/ Victor Lopez Director April 10, 2002
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Victor Lopez
/s/ Paul F. Manley Director April 10, 2002
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Paul F. Manley
/s/ Bob L. Moss Director April 10, 2002
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Bob L. Moss
/s/ Roberto Motta Director April 10, 2002
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Roberto Motta
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 2001 Incentive Compensation Plan
5.1 Opinion of Greenberg Traurig, P.A.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Greenberg Traurig, P.A. (contained in its opinion filed
as Exhibit 5.1 hereto)
24.1 Power of Attorney is included in the Signature section of the
Registration Statement