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EXHIBIT 3.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
WINDMERE-DURABLE HOLDINGS, INC.
Pursuant to the provisions of Sections 607.1006 and 607.1007 of the
Florida Business Corporation Act, the undersigned corporation hereby adopts the
following Second Amended and Restated Articles of Incorporation:
ARTICLE ONE
The name of this corporation shall be: APPLICA INCORPORATED (the
"Corporation").
ARTICLE TWO
The purpose for which the Corporation is organized is to transact any
or all lawful business for which corporations may be incorporated under the laws
of the State of Florida. The Corporation shall have all of the general and
additional powers and rights now or hereafter conferred upon it by law.
ARTICLE THREE
The maximum number of shares of stock which the Corporation is
authorized to have at any time is 75,000,000 shares of common stock, having a
par value of $.10 per share, the consideration for the issuance of which shall
be fixed by the Board of Directors.
The Corporation shall have the power to issue the whole or any part of
the shares of its capital stock as partly paid, subject to calls thereon until
the whole thereof shall have been paid in full; this is to be determined by the
Board of Directors. All holders of stock shall be entitled to vote the same
whether said stock be fully or partially paid unless determined otherwise by the
Board of Directors at or before the time of the issuance thereof.
ARTICLE FOUR
The Corporation shall have permanent and perpetual existence.
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ARTICLE FIVE
The post office address of the principal office of the Corporation
shall be 5980 Miami Lakes Drive, Miami Lakes, Florida 33014, but other offices
for the transaction of business may be located wherever the Board of Directors
may deem necessary or fit.
ARTICLE SIX
SECTION 1. NUMBER, ELECTION AND TERM OF OFFICE. The business of the
Corporation shall be managed by a Board of Directors who need not be
shareholders of the Corporation. The number of directors shall be 15, which
number may be increased or decreased from time to time by resolution of the
majority of the Board of Directors, but shall not be less than seven nor more
than 15.
The Board of Directors shall be divided into three classes, designated
Class I, Class II and Class III, as nearly equal in number as possible. The
terms of office of directors of one class shall expire at each annual meeting of
shareholders, and in all cases as to each director until his successor shall be
elected and shall qualify, or until his earlier resignation, removal from
office, death or incapacity. If the number of directors is changed, any increase
or decrease in directors shall be apportioned among the classes so as to
maintain all classes as equal in number as possible, and any additional director
elected to any class shall hold office for a term which shall coincide with the
terms of the other directors in such class. No decrease in the number of
directors shall shorten the term of any incumbent director.
At each annual meeting, the number of directors equal to the number of
directors of the class whose term expires at the time of such meeting (or, if
different, the number of directors properly nominated and qualified for
election) shall be elected to hold office until the third succeeding annual
meeting of shareholders after their election. At each annual meeting of
shareholders, the nominees receiving the highest number of votes will be
elected.
SECTION 2. REMOVAL. Any director or the entire Board of Directors may
be removed; however, such removal must be for cause and must be approved as set
forth in this Section. Except as may otherwise be provided by law, cause for
removal shall be construed to exist only if: (a) the director whose removal is
proposed has been convicted of a felony by a court of competent jurisdiction; or
(b) such director has been adjudicated by a court of competent jurisdiction to
be liable for negligence or misconduct in the performance of his duty to the
Corporation in a matter of substantial importance to the Corporation and such
adjudication is no longer subject to direct appeal.
Removal for cause, as defined in (a) and (b) above, must be approved by
at least a majority vote of the shares of the Corporation then entitled to vote
at an election for that director or by at least a majority of the total number
of directors. Any action for the removal of a director must be brought within
one year of such conviction or adjudication.
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SECTION 3. VACANCIES. Any vacancies in the Board of Directors resulting
from death, resignation, retirement, removal from office, the creation of a new
directorship by an increase in the authorized number of directors, or otherwise
shall be filled by a majority vote of the directors then in office, though less
than a quorum of the entire Board of Directors. Directors so chosen to fill any
vacancy shall hold office for a term expiring at the nest Annual Meeting of
Shareholders.
SECTION 4. AMENDMENT, ALTERATION, REPEAL, ETC. Notwithstanding anything
contained in these Articles of Incorporation to the contrary, the affirmative
vote of the holders of at least 67% of the shares of the Corporation then
entitled to vote in the election of directors shall be required to amend, alter
or repeal, or to adopt any provision inconsistent with, this Article Six.
ARTICLE SEVEN
Upon the election of the Board of Directors by the shareholders, such
Board shall manage the business and affairs of the Corporation without the need
of further authorization from the shareholders, except as otherwise provided by
law. An action of the Board may be rescinded only upon a vote of shareholders
having two-thirds (2/3) of the stock of the Corporation which may at any time be
actually issued, unless otherwise provided for by the Bylaws.
ARTICLE EIGHT
No shareholder of the Corporation shall, because of his ownership of
stock, have a preemptive or other right to purchase, subscribe for, or take any
part of any stock or any part of the notes, debentures, bonds, or other
securities convertible into or carrying options or warrants to purchase stock of
the Corporation issued, optioned, or sold by it after its incorporation. Any
part of the capital stock and any part of the notes, debentures, bonds or other
securities convertible into or carrying options or warranties to purchase stock
of the Corporation authorized by this Articles of Incorporation or by amended
articles, duly filed, may at any time be issued, optioned for sale, and sold or
disposed of by the Corporation pursuant to resolution of the Board of Directors
to such persons and upon such terms as may to such Board seem proper without
first offering such stock or securities or any part thereof to existing
shareholders.
ARTICLE NINE
SECTION 1. (a) In addition to any affirmative vote required by law or
these Articles of Incorporation, and except as otherwise expressly provided in
paragraph 2 of this Article Nine:
(i) any merger or consolidation of the Corporation or
any Subsidiary (as hereinafter defined) with (a) any Interested
Shareholder (as hereinafter defined) or (b) any other corporation
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(whether or not itself an Interested Shareholder) which is, or after
such merger or consolidation would be, an Affiliate or Associate (as
hereinafter defined) of an Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series of
transactions) to or with any Interested Shareholder or any Affiliate or
Associate of any Interested Shareholder of any assets of the
Corporation or any Subsidiary having an aggregate Fair Market Value (as
hereinafter defined) of $4,000,000 or more; or
(iii) the issuance or transfer by the Corporation or
any Subsidiary (in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Shareholder or to any Affiliate or Associate of any Interested
Shareholder in exchange for cash, securities or other property (or a
combination thereof) having an aggregate Fair Market Value of
$4,000,000; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or on behalf
of an Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder; or
(v) any reclassification of securities (including any
reverse stock split), or recapitalization of the corporation, or any
merger or consolidation of the Corporation with any of its Subsidiaries
or any other transaction (whether or not with or into or otherwise
involving an Interested Shareholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by
any Interested Shareholder or any Affiliate or Associate of any of any
Interested Shareholder;
shall require the affirmative vote of the holders of at least eighty percent
(80%) of the then-outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class. Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be specified, by
law or in any agreement with any national securities exchange or otherwise.
(b) The term "Business Combination" as used in this Article
Nine shall mean any transaction which is referred to in any one or more of
clauses (i) through (v) of subparagraph (a) of this paragraph 1.
SECTION 2. The provisions of paragraph 1 of this Article Nine shall not
be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law, any
other provision of these Articles of Incorporation, any agreement with any
national securities exchange or otherwise, but not the vote called for in
subparagraph 1(a) of this Article Nine, if all of the conditions specified in
EITHER of the following subparagraphs (a) or (b) are met:
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(a) The Business Combination shall have been approved by both
(i) a majority of the Continuing Directors (as hereinafter defined), even if the
Continuing Directors do not constitute a quorum of the entire Board of
Directors, it being understood that this condition shall not be capable of
satisfaction unless there is at least one Continuing Director; and (ii) the
affirmative vote of the holders of at least fifty-one percent (51%) of the
Voting Stock who are Unaffiliated Shareholders (as hereinafter defined).
(b) All of the following conditions shall have been met:
(i) The consideration to be received by holders of
shares of a particular class of outstanding Voting Stock shall be in
cash or in the same form as the Interested Shareholder has paid for
shares of such class of Voting Stock within the two-year period ending
on and including the date on which the Interested Shareholder became an
Interested Shareholder (the "Determination Date"). If, within such
two-year period, the Interested Shareholder has paid for shares of any
class of Voting Stock with varying forms of consideration, the form of
consideration to be received per share by holders of shares of such
class of Voting Stock shall be either cash or the form used to acquire
the largest number of shares of such class of Voting Stock acquired by
the Interested Shareholder within such two-year period.
(ii) The aggregate amount of (x) the cash and (y) the
Fair Market Value, as of the date (the "Consummation Date") of the
consummation of the Business Combination, of the consideration other
than cash to be received per share by holders of Voting Stock in such
Business Combination shall be at least equal to the higher of the
following (it being intended that the requirements of this subparagraph
(b)(ii) shall be required to be met with respect to all shares of
Voting Stock outstanding whether or not the Interested Shareholder or
any Affiliate or Associate of such Interested Shareholder has
previously acquired any shares of Voting Stock:
(A) (if applicable) the highest per share
price (including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Shareholder
or by any Affiliate or Associate of such Interested
Shareholder for any shares of Voting Stock acquired by it
within the two-year period immediately prior to the date of
the first public announcement of the proposal of the Business
Combination (the "Announcement Date") or in the transaction in
which it became an Interested Shareholder, whichever is
higher;
(B) the Fair Market Value per share of
Voting Stock on the Announcement Date or on the Determination
Date, whichever is higher; or
(C) the highest preferential amount per
share, if any, to which the holders of shares of such class of
Voting Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
corporation.
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(iii) After such Interested Shareholder has become an
Interested Shareholder and prior to the consummation of such Business
Combination: (a) there shall have been (I) no failure to declare and
pay at the regular rate therefor any full quarterly dividends (whether
or not cumulative) on the outstanding shares of any class of the
corporation's stock, except as approved by a majority of the Continuing
Directors, (II) no reduction in the annual rate of dividends paid on
the Common Stock (except as necessary to reflect any subdivision of the
Common Stock), except as approved by a majority of the Continuing
Directors, and (III) an increase in the annual rate of dividends paid
on any class of the corporation's Voting Stock as necessary to reflect
any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which has
the effect of reducing the number of outstanding shares of the Common
Stock, unless the failure to so increase such annual rate is approved
by a majority of the Continuing Directors; and (b) such Interested
Shareholder shall not have become the beneficial owner of any
additional shares of Voting Stock except as part of the transaction
which results in such Interested Shareholder becoming an Interested
Shareholder.
(iv) After such Interested Shareholder has become an
Interested Shareholder, such Interested Shareholder shall not have
received the benefit, directly or indirectly (except proportionately,
solely in such Interested Shareholder's capacity as a shareholder of
the corporation), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
(v) A proxy or information statement describing the
proposed Business Combination and complying with the requirements of
the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (or any subsequent provisions replacing such
Act, rules or regulations) shall be mailed to all shareholders of the
Corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is
required to be mailed pursuant to such Act or subsequent provisions).
(c) For the purposes of this Article Nine:
(i) A "person" shall mean any individual,
partnership, firm, corporation or other entity.
(ii) "Interested Shareholder" shall mean any person
(other than the Corporation or any Subsidiary) who or which:
(A) is the beneficial owner of more than ten
percent of the voting power of the outstanding Voting Stock;
or
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(B) is an Affiliate or Associate of the
Corporation and at any time within the two-year period
immediately prior to the date in question was the beneficial
owner of ten percent or more of the voting power of the then
outstanding Voting Stock; or
(C) is an assignee of or has otherwise
succeeded to any shares of the Voting Stock which were at any
time within the two-year period immediately prior to the date
in question beneficially owned by any Interested Shareholder,
if such assignment or succession shall have occurred in the
course of a transaction or series of transactions not
involving a public offering within the meaning of the
Securities Act of 1933, as amended.
(iii) "Beneficial Owner" shall have the meaning
assigned to such term in Rule 13d-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended, as
in effect on January 1, 1984.
(iv) For the purposes of determining whether a person
is an Interested Shareholder pursuant to subsection (ii) of this
subparagraph (c), the number of shares of Voting Stock deemed to be
outstanding shall include shares deemed owned through application of
subsection (iii) of this subparagraph (c) but shall not include any
other shares of Voting Stock which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion
rights, warrants or options or otherwise.
(v) "Affiliate" or "Associate" shall mean the
respective meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as
amended, as in effect on January 1, 1984.
(vi) "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Interested Shareholder set forth in
subsection (ii) of this subparagraph (c), the term "Subsidiary" shall
mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
(vii) "Continuing Director" means any member of the
Board of Directors of the Corporation who (i) is neither the Interested
Shareholder involved in the Business Combination as to which a vote of
Continuing Directors is provided hereunder, nor an Affiliate,
Associate, employee, agent or nominee of such Interested Shareholder,
or the relative of any of the foregoing, and (ii) was either (a) a
member of the Board of Directors prior to the time that such Interested
Shareholder became an Interested Shareholder, or (b) a successor of a
Continuing Director described in clause (a) who is recommended to
succeed a Continuing Director by the affirmative vote of a majority of
Continuing Directors then on the Board of Directors.
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(viii) "Fair Market Value" means: (a) in the case of
stock, the highest closing sale price during the 30-day period
immediately preceding the date in question of a share of such stock on
the Composite Tape for New York Stock Exchange - Listed Stocks, or, if
such stock is not quoted on the Composite Tape, on the New York Stock
Exchange, or, if such stock is not listed on such Exchange, on the
principal United States securities exchange registered under the
Securities Exchange Act of 1934, as amended, on which such stock is
listed, or, if such stock is not listed on any such exchange, the
highest closing bid quotation with respect to a share of such stock
during the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System or
any system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such stock as
determined by a majority of the Continuing Directors in good faith; and
(b) in the case of property other than cash or stock, the fair market
value of such property on the date in question is determined by a
majority of the Continuing Directors in good faith.
(ix) "Unaffiliated Shareholder" means any shareholder
of the Corporation who is neither the Interested Shareholder involved
in the Business Combination as to which a vote of Unaffiliated
Shareholders is provided hereunder, nor an Affiliate, Associate,
employee, agent or nominee of such Interested Shareholder, or a
relative of any of the foregoing.
(x) "Voting Stock" means all outstanding shares of
capital stock of the Corporation or another corporation entitled to
vote generally in the election of directors, and each reference to a
proportion of shares of Voting Stock shall refer to such proportion of
the votes entitled to be cast by such shares.
(xi) In the event of any Business Combination in
which the Corporation survives, the phrase "consideration other than
cash to be received" as used in subsection 2(b)(ii) of this Article
Nine shall include the shares of Common Stock and/or the shares of any
other class of outstanding Voting Stock retained by the holders of such
shares.
(d) A majority of the Continuing Directors, if any, constitute
a majority of the total number of directors (whether or not there exist any
vacancies in directorships at the time any such determination as is hereinafter
in this subparagraph (d) specified is to be made by the Board) shall have the
power and fiduciary duty to all of the shareholders to determine, on the basis
of information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article Nine, including, without limitation, (1)
whether a person is an Interested Shareholder or an Unaffiliated Shareholder;
(2) the number of shares of Voting Stock beneficially owned by any person; (3)
whether a person is an Affiliate or Associate of another; (4) whether the
applicable conditions set forth in subsection (ii) of subparagraph 2(b) have
been met with respect to any Business Combination; and (5) whether the assets
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which are the subject of any Business Combination referred to in subsection (ii)
of subparagraph 1(a) have, or the consideration to be received for the issuance
or transfer of securities by the Corporation or any Subsidiary in any Business
Combination referred to in subsection (iii) in subparagraph 1(a), has an
aggregate Fair Market Value of $4,000,000 or more.
(e) Nothing contained in this Article Nine shall be construed
to relieve any Interested Shareholder from any fiduciary obligation imposed by
law.
(f) Notwithstanding any other provisions of these Articles of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the Voting Stock required by law, these Articles
of Incorporation or any Preferred Stock designation, the affirmative vote of the
holders of at least 80 percent of the voting power of all of the then
outstanding shares of the Voting Stock, voting together as a single class, shall
be required to alter, amend or repeal, or to adopt any provisions inconsistent
with, this Article Nine.
ARTICLE TEN
SECTION 1. Any action required or permitted to be taken by the
shareholders of the Corporation must be taken at a duly called annual or special
meeting of shareholders of the Corporation. No shareholder action may be taken
by a consent in writing.
SECTION 2. The Corporation shall call a special meeting upon the
written request of the Chairman, the President, a majority of the Board of
Directors acting with or without a meeting, or the holders of not less than ten
percent (10%) of all the shares entitled to vote at the meeting.
SECTION 3. Upon request in writing delivered either in person or by
registered or certified mail to the Secretary of the Corporation by the persons
herein entitled to request the calling of a special meeting of shareholders, the
Board of Directors shall fix the Record Date for and the place, date and hour of
the meeting, and the Secretary shall give notice of such meeting and the place,
day and hour and the purpose or purposes thereof to the shareholders entitled
thereto.
SECTION 4. Notwithstanding any other provisions of the Articles of
Incorporation or the Bylaws of the Corporation (and notwithstanding the fact
that some lesser percentage may be specified by law, the Articles of
Incorporation or the Bylaws of the Corporation), the provisions of this Article
Ten may be altered, amended or repealed, or a conflicting amendment adopted only
by the affirmative vote of 80% or more of the voting power of all the shares of
common stock of the Corporation entitled to vote generally in the election of
directors.
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