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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): JANUARY 5, 2000
-----------------------
SAFESKIN CORPORATION
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(Exact name of registrant specified in Charter)
FLORIDA 0-22726 59-2617525
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(State or other (Commission (IRS Employee
jurisdiction of File Number) Identification No.)
incorporation)
12671 HIGH BLUFF DRIVE
SAN DIEGO, CALIFORNIA 92130
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(Address of principal executive offices) Zip Code
REGISTRANT'S TELEPHONE, INCLUDING AREA CODE: (619) 794-8111
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(Former name and former address, if changed since last report)
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Item 5. Other Events.
On January 5, 2000, Safeskin Corporation ("Safeskin") filed articles of
amendment with the office of the Secretary of State of the Florida that amended
Safeskin's charter. These amendments were previously approved by its
shareholders and concerned the classification of Safeskin's board, the
provisions for removal of directors, and the amount of shares designated as
shares of Series A Junior Participating Preferred Stock. Certain conforming
changes were also made to the Bylaws of Safeskin.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
Exhibit No. Exhibit
3.3 Articles of Amendment to Articles of
Incorporation of Safeskin
Corporation
3.4 Articles of Amendment to Articles of
Incorporation of Safeskin
Corporation
3.5 Amended and Restated Bylaws of
Safeskin Corporation
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Signature
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SAFESKIN CORPORATION
By: /s/ RICHARD JAFFE
-------------------------------------
Name: Richard Jaffe
Title: Chairman, President and Chief
Executive Officer
Dated: January 11, 2000
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
3.3 Articles of Amendment to Articles of Incorporation of
Safeskin Corporation
3.4 Articles of Amendment to Articles of Incorporation of
Safeskin Corporation
3.5 Amended and Restated Bylaws of Safeskin Corporation
</TABLE>
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Exhibit 3.3
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
SAFESKIN CORPORATION
Pursuant to the provisions of Sections 607.1006, Florida Statutes, the
undersigned, Safeskin Corporation, a Florida corporation, by its Secretary, does
hereby make and execute these Articles of Amendment to its Articles of
Incorporation:
1. The name of the corporation is Safeskin Corporation.
2. The text of the amendment adopted is as follows:
RESOLVED, that the Articles of Incorporation of this
corporation be amended by amending ARTICLE VI thereof to read as
follows:
ARTICLE VI
BOARD OF DIRECTORS
(1) The total number of directors of this corporation shall be no less
than five and no more than ten, as fixed by the directors in accordance
with the terms and conditions of the bylaws of the corporation.
(2) The directors shall be classified, with respect to the time for
which they severally hold office, into three classes, as nearly equal
in number as possible, one class to be originally elected for a term
expiring at the annual meeting of shareholders to be held in 2000,
another class to be originally elected for a term expiring at the
annual meeting of shareholders to be held in 2001, and another class to
be originally elected for a term expiring at the annual meeting of
shareholders to be held in 2002, with each class to hold office until
its successor is duly elected and qualified. At each succeeding annual
meeting of shareholders, directors elected to succeed those directors
whose terms then expire shall be elected for a term of office to expire
at the third succeeding annual meeting of shareholders after their
election, with each director to hold office
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until such person's successor shall have been duly elected and
qualified.
(3) Directors shall only be removable for cause at a shareholders
meeting by the affirmative vote of the majority of the votes received
from those holders entitled to vote.
3. The date of the adoption of the amendment by the shareholders of the
corporation was September 23, 1999.
4. The number of votes cast for the amendment by the shareholders of the
corporation was sufficient for approval.
Dated: December 7, 1999.
SAFESKIN CORPORATION
By /s/ Seth S. Goldman
------------------------------------
Name: Seth S. Goldman
Title: Secretary
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Exhibit 3.4
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
SAFESKIN CORPORATION
-----------------------------------
Pursuant to the provisions of Section 607.0602(4) of the
Florida Business Corporation Act, the undersigned, Safeskin
Corporation, a Florida corporation, by its Secretary, does hereby make
and execute these Articles of Amendment to its Articles of
Incorporation:
1. The name of the corporation is Safeskin Corporation.
2. The Articles of Incorporation are amended by adding to Article V
thereof the following new Section 5(i) which completes the preferences,
limitations and relative rights of the Series A Junior Participating Preferred
Stock, par value $.01 per share, fixed and determined by the Board of Directors
in accordance with Article V of the corporation's Articles of Incorporation and
Section 607.0602(1) of the Florida Business Corporation Act:
(i) Number. The Series A Junior Participating Preferred Stock shall
consist of 1,000,000 shares having a par value of $.01 per share.
3. The date of the adoption of the amendment was December 12, 1996.
4. The amendment was duly adopted by the Board of Directors, without
shareholder action, in accordance with Section 607.0602 of the Florida Business
Corporation Act.
IN WITNESS WHEREOF, these Articles of Amendment to Articles of
Incorporation of Safeskin Corporation have been executed by Safeskin
Corporation, by its Secretary, this 8th day of November, 1999.
SAFESKIN CORPORATION
By: /s/ Seth S. Goldman
---------------------------------
Seth S. Goldman
Secretary
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EXHIBIT 3.5
AMENDED AND RESTATED BYLAWS
OF
SAFESKIN CORPORATION
(a Florida corporation)
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INDEX
<TABLE>
<CAPTION>
Page
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ARTICLE I
<S> <C> <C> <C> <C>
Offices..................................................................................................1
Section 1.01. Principal Office................................................................1
Section 1.02. Registered Office...............................................................1
Section 1.03. Other Offices...................................................................1
ARTICLE II
Meetings of Shareholders..........................................................................................1
Section 2.01. Annual Meeting..................................................................1
Section 2.02. Special Meetings ...............................................................1
Section 2.03. Place of Meetings...............................................................2
Section 2.04. Voting Lists....................................................................2
Section 2.05. Fixing of a Record Date.........................................................2
Section 2.06. Notice of Meetings..............................................................3
Section 2.07. Precondition to Delivery of Notice of Special Meeting of
Shareholders Called by Shareholders...........................................3
Section 2.08. Quorum..........................................................................3
Section 2.09. Adjournment.....................................................................3
Section 2.10. Organization....................................................................4
Section 2.11. Voting..........................................................................4
Section 2.12. Proxies.........................................................................5
Section 2.13. Action by Shareholders Without a Meeting........................................5
ARTICLE III
Board of Directors.......................................................................................6
Section 3.01. Powers and Duties...............................................................6
</TABLE>
i
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<TABLE>
<S> <C> <C> <C> <C>
Section 3.02. Qualification and Election......................................................7
Section 3.03. Number and Term of Office.......................................................7
Section 3.04. Classified Board................................................................8
Section 3.05 Organization....................................................................8
Section 3.06. Place of Meetings...............................................................8
Section 3.07. Annual Meetings.................................................................8
Section 3.08. Regular Meetings................................................................8
Section 3.09. Special Meetings................................................................8
Section 3.10. Action by Written Consent Without a Meeting.....................................8
Section 3.11. Conference Telephone Meeting....................................................8
Section 3.12. Quorum..........................................................................9
Section 3.13. Voting..........................................................................9
Section 3.14. Adjournment.....................................................................9
Section 3.15. Compensation....................................................................9
Section 3.16. Resignations....................................................................9
Section 3.17. Vacancies.......................................................................9
Section 3.18. Removal........................................................................10
Section 3.19. Executive and Other Committees of the Board....................................10
ARTICLE IV
Notice and Waiver of Notice......................................................................................12
Section 4.01. Notice.........................................................................12
Section 4.02. Waiver of Notice...............................................................12
ARTICLE V
Officers................................................................................................12
Section 5.01. Number and Qualification........................................................12
Section 5.02. Election and Term of Office....................................................12
Section 5.03. Subordinate Officers, Committees and Agents....................................13
Section 5.04. The Chairman of the Board......................................................13
Section 5.05. The Chief Executive Officer....................................................13
Section 5.06. The President..................................................................13
Section 5.07. The Chief Financial Officer....................................................13
Section 5.08. The Vice Presidents............................................................14
Section 5.09. The Secretary..................................................................14
Section 5.10. The Treasurer..................................................................14
Section 5.11. Salaries and Compensation......................................................14
Section 5.12. Resignations...................................................................15
Section 5.13. Removal........................................................................15
Section 5.14. Vacancies......................................................................15
</TABLE>
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<TABLE>
<S> <C> <C> <C> <C>
ARTICLE VI
Certificates of Stock, Transfer ............................................................15
Section 6.01. Share Certificates, Issuance...................................................15
Section 6.02. Transfer.......................................................................16
Section 6.03. Registered Shareholders........................................................16
Section 6.04. Lost, Destroyed or Mutilated Certificates......................................16
ARTICLE VII
Indemnification of Directors, Officers, Employees and Agents............................................16
Section 7.01. Directors, Officers, Employees and Agents......................................16
Section 7.02. Expenses.......................................................................17
Section 7.03. Determination of Standard of Conduct...........................................17
Section 7.04. Advance Expenses...............................................................18
Section 7.05. Benefit........................................................................18
Section 7.06. Insurance......................................................................18
Section 7.07. No Rights of Subrogation.......................................................18
Section 7.08. Indemnification for Past Directors.............................................19
Section 7.09. Affiliates.....................................................................19
Section 7.10. Reliance and Non-Exclusivity...................................................19
Section 7.11. Miscellaneous..................................................................19
Section 7.12 Insider Trading Violations Exclusion...........................................19
ARTICLE VIII
Miscellaneous...........................................................................................20
Section 8.01. Checks.........................................................................20
Section 8.02. Dividends......................................................................20
Section 8.03. Deposits.......................................................................20
Section 8.04. Fiscal Year....................................................................20
Section 8.05. Severability...................................................................20
</TABLE>
iii
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ARTICLE I
Offices
Section 1.01. Principal Office. The principal office of the corporation
in the State of Florida, which may be the registered office, shall be
established at such place as the board of directors shall from time to time
determine.
Section 1.02. Registered Office. The registered office of the
corporation in the State of Florida shall be at the office of its registered
agent as stated in the articles of incorporation or as the board of directors
shall from time to time determine.
Section 1.03. Other Offices. The corporation may have additional
offices at such other places, either within or without the State of Florida, as
the board of directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
Meetings of Shareholders
Section 2.01. Annual Meeting. The annual meeting of shareholders shall
be held after the close of each fiscal year on such date and at such time as
determined by the board of directors. The shareholders entitled to vote at such
meeting shall elect the directors and shall transact such other business as may
properly be brought before the meeting.
Section 2.02. Special Meetings. Special meetings of the shareholders of
the corporation may be called, for any purpose or purposes permitted by law, by
the board of directors on its own initiative and shall be called by the board of
directors upon written request by the chairman of the board, the chief executive
officer, the president of the corporation, or, upon delivery to the secretary of
one or more written demands for the meeting describing the purpose or purposes
for which it is to be held, by the holders of not less than twenty percent of
all the shares entitled to be cast on any issue proposed to be considered at the
proposed special meeting. Notice of such meeting shall be given by the secretary
as provided herein. Only business within the purpose or purposes described in
the special meeting notice may be conducted at a special shareholders' meeting.
Section 2.03. Place of Meetings. All meetings of the shareholders of
the corporation shall be held at such place within or without the State of
Florida as shall be designated from time to time by the board of directors and
stated in the notice of such meeting or in a duly executed waiver of notice
thereof.
Section 2.04. Voting Lists. The officer or agent of the corporation
having charge of the stock transfer books for shares of the corporation shall
make, at least ten days before each meeting of shareholders, a complete list of
the shareholders entitled to vote at the meeting and any adjournment thereof,
arranged in alphabetical order, with the address of and the number of shares
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held by each shareholder, which list shall be kept on file at the place
identified in the meeting notice in the city where the meeting will beheld or
its principal place of business or at the office of its registrar or transfer
agent for a period of at least ten days prior to the meeting, and shall be
subject to inspection by any shareholder at any time during usual business
hours. Such list shall also be produced and kept open at the time and place of
the meeting, and shall be subject to the inspection of any shareholder during
the whole time of the meeting. The original share ledger or transfer book, or a
duplicate thereof, shall be prima facie evidence as to who are the shareholders
entitled to examine such list or share ledger or transfer book, or to vote, in
person or by proxy, at any meeting of the shareholders.
Section 2.05. Fixing of a Record Date. The board of directors may fix
in advance a date as the record date for any determination of shareholders
entitled to notice of, or to vote at, any meeting of shareholders, or entitled
to payment of a dividend or allotment of any rights or privileges, such date in
any case to be not more than seventy days and, in the case of a meeting of
shareholders, not less than ten days prior to the date on which the particular
action, requiring such determination of shareholders, is to be taken.
If no record date is fixed for the determination of shareholders
entitled to notice of, or to vote at, a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the date on which the secretary mails
the notice of the meeting or the date on which the resolution of the board of
directors declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, unless the board of directors fixes a new
record date under this section for the adjourned meeting which it must do if the
meeting is adjourned to a date more than 120 days after the date fixed for the
original meeting.
Section 2.06. Notice of Meetings. Written notice stating the place, day
and hour of every meeting of the shareholders shall be given by the secretary to
each shareholder entitled to vote at such meeting, either personally or by first
class mail, at least ten days, but not more than sixty days, prior to the day
named for the meeting. If mailed, such notice shall be deemed to be delivered
when deposited in the United States first-class mail, postage prepaid, addressed
to the shareholder at his or her address as it appears on the stock transfer
books of the corporation.
Section 2.07. Precondition to Delivery of Notice of Special Meeting of
Shareholders Called by Shareholders. The secretary shall inform shareholders who
have delivered a written request for a special meeting and otherwise complied
with section 2.02 of the reasonably estimated costs of preparing and mailing a
notice of the meeting, and, on payment of these costs to the corporation, the
secretary shall deliver notice of such meeting to each shareholder entitled
thereto.
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Section 2.08. Quorum. The presence, in person or by proxy, of
shareholders entitled to cast a majority of the votes which all shareholders are
entitled to cast shall constitute a quorum for such meeting. Treasury shares,
shares of this corporation's stock which are owned by another corporation the
majority of the voting stock of which is owned by this corporation, and shares
of this corporation's stock held by another corporation in a fiduciary capacity
for the benefit of this corporation shall not be counted in determining the
total number of outstanding shares for voting purposes at any given time. After
a quorum has been established at a shareholders' meeting, the subsequent
withdrawal of shareholders, so as to reduce the number of shareholders entitled
to vote at the meeting below the number required for a quorum, shall not affect
the validity of any action taken at the meeting or any adjournment thereof. When
a specified item of business is required to be voted on by any class or series
of stock, a majority of the shares of such class or series shall constitute a
quorum for transaction of such item of business by that class or series.
Section 2.09. Adjournment. When a meeting which is properly called is
adjourned to another time or place, it shall not be necessary to give any notice
of the adjourned meeting if the time and place to which the meeting is adjourned
are announced at the meeting at which the adjournment is taken, and at the
adjourned meeting any business may be transacted that might have been transacted
on the original date or place of the meeting. If, however, after the adjournment
the board fixes a new record date for the adjourned meeting, a notice of the
adjourned meeting shall be given to each shareholder of record on the new record
date entitled to vote at such meeting.
The holders of a majority of the shares represented, and who would be
entitled to vote at a meeting if a quorum were present, where a quorum is not
present, may adjourn such meeting from time to time.
Section 2.10. Organization. At every meeting of the shareholders, the
chairman of the board, if there be one, or in the case of vacancy in office or
absence of the chairman of the board, one of the following officers present in
the order stated: the chief executive officer, the president, the chief
financial officer, the vice presidents in their order of rank and then
seniority, or a chairman chosen by the shareholders entitled to cast a majority
of the votes which all shareholders present in person or by proxy are entitled
to cast, shall act as chairman, and the secretary, or, in the secretary's
absence, an assistant secretary, or, in the absence of both the secretary and
assistant secretaries, a person appointed by the chairman, shall act as
secretary.
Section 2.11. Voting. If a quorum is present at any meeting, action on
a matter (other than the election of directors) is approved if the votes cast in
favor exceed the votes cast in opposition, unless the question is one for which,
by express provision of the law or of the articles of incorporation or these
bylaws, a different vote is required, in which case such express provision shall
govern and control the decision of such question.
Except as may be otherwise provided in the articles of incorporation,
every shareholder of record shall have the right, at every shareholders'
meeting, to one vote for every share, and to a
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fraction of a vote equal to every fractional share, of stock of the corporation
standing in his or her name on the books of the corporation. A shareholder may
vote either in person or by proxy.
Treasury shares, shares of this corporation's stock which are owned by
another corporation the majority of the voting stock of which is owned by this
corporation, and the shares of this corporation's stock held by another
corporation in a fiduciary capacity for the benefit of this corporation shall
not be voted, directly or indirectly, at any meeting of shareholders.
At each election for directors, every shareholder entitled to vote
shall have the right to vote the number of shares owned by the shareholder, for
as many persons as there are directors to be elected at that time and for whose
election the shareholder has a right to vote.
Shares standing in the name of another corporation, domestic or
foreign, may be voted by the officer, agent, or proxy designated by the bylaws
of the corporate shareholder; or, in the absence of any applicable bylaw, by
such person as the board of directors of the corporate shareholder may
designate. Proof of such designation may be made by presentation of a certified
copy of the bylaws or other instrument of the corporate shareholder. In the
absence of any such designation, or in case of conflicting designation, by the
corporate shareholder, the chairman of the board, chief executive officer,
president, chief financial officer, any vice president, secretary and treasurer
of the corporate shareholder shall be presumed to possess, in that order,
authority to vote such shares.
Shares held by an administrator, executor, guardian or
conservator may be voted by such person, either in person or by proxy, without a
transfer of such shares into the name of such person.
Shares standing in the name of a trustee may be voted by such
trustee, either in person or by proxy, but no trustee shall be entitled to vote
shares held by such trustee without a transfer of such shares into the name of
such trustee. Shares held by or under the control of a receiver, a trustee in
bankruptcy proceedings, or an assignee for the benefit of creditors may be voted
by such person or the name of a nominee, without the transfer thereof into such
person's name.
A shareholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the pledgee,
and thereafter the pledgee or the nominee of the pledgee shall be entitled to
vote the shares so transferred.
Section 2.12. Proxies. Every shareholder entitled to vote at a
meeting of shareholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act by
proxy in accordance with applicable laws.
Section 2.13. Action by Shareholders Without a Meeting. Unless
otherwise provided in the articles of incorporation, any action required to be
taken at any annual or special meeting of shareholders of the corporation, or
any action which may be taken at any annual or special meeting of the
shareholders, may be taken without a meeting, without prior notice and without a
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vote, if one or more consents in writing, setting forth the action so taken,
shall be dated and signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted, and delivered to the corporation by delivery to its principal
office in Florida, its principal place of business, the corporate secretary, or
another officer or agent of the corporation having custody of the minute book.
If any class of shares is entitled to vote thereon as a class, such written
consent shall be required of the holders of a majority of the shares of such
class and of the total shares entitled to vote. No written consent shall be
effective to take the corporate action referred to therein unless, within sixty
days of the date of the earliest dated consent delivered in the manner set forth
above, written consents signed by the holders of the number of shares required
to take action are delivered to the corporation by delivery as set forth above.
ARTICLE III
Board of Directors
Section 3.01. Powers and Duties. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
corporation shall be managed under the direction of, a board of directors,
except as may be otherwise provided in the Florida Business Corporation Act or
the articles of incorporation.
A director shall perform his or her duties as a director, including
duties as a member of any committee of the board upon which the director may
serve, in good faith, in a manner the director reasonably believes to be in the
best interests of the corporation, and with such care as an ordinarily prudent
person in a like position would use under similar circumstances. In performing
such duties, a director shall be entitled to rely on information, opinions,
reports or statements, including financial statements and other financial data,
in each case prepared or presented by:
(1) one or more officers or employees of the corporation
whom the director reasonably believes to be reliable and competent in the
matters presented,
(2) counsel, public accountants or other persons as to
matters which the director reasonably believes to be within such person's
professional or expert competence, or
(3) a committee of the board upon which the director
does not serve, duly designated in accordance with provisions of the articles of
incorporation or these bylaws, as to matters within its designated authority,
which committee the director reasonably believes to merit confidence.
A director shall not be considered to be acting in good faith if
the director has knowledge concerning the matter in question that would cause
such reliance described in the preceding subsection to be unwarranted.
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A person who performs his or her duties in compliance with this
section shall not be liable for any action taken as a director or any failure to
take any action.
A director of the corporation who is present at a meeting of the
board of directors at which action on any corporate matter is taken shall be
presumed to have assented to the action taken, unless the director votes against
such action or abstains from voting in respect thereto because of an asserted
conflict of interest.
Section 3.02. Qualification and Election. Directors need not be
residents of Florida or shareholders in the corporation. Except in the case of
vacancies, directors shall be elected by the shareholders. Upon the demand of
any shareholder or the shareholder's proxy at any meeting of shareholders for
the election of directors, the chairman of the meeting shall call for and shall
afford a reasonable opportunity for the making of nominations for the office of
director (except to the extent, if any, restricted by the articles of
incorporation). Any shareholder or the shareholder's proxy may nominate as many
persons for the office of director as there are positions to be filled by
providing the secretary with a written acceptance of nomination as director
executed by such nominee. If nominations for the office of director have been
called for as herein provided, only candidates who have been nominated in
accordance therewith shall be eligible for election. If the board of directors
is classified with respect to the power to elect directors or with respect to
the terms of directors and if, due to a vacancy or vacancies, or otherwise,
directors of more than one class are to be elected, each class of directors to
be elected at the meeting shall be nominated and elected separately. The
candidates receiving the greatest number of votes, up to the number of directors
to be elected, shall be elected directors.
Section 3.03. Number and Term of Office. The board of directors
shall consist of seven directors. The number of directors may be increased or
decreased from time to time by amendment to these bylaws, but no decrease shall
have the effect of shortening the term of any incumbent director. Each director
shall serve until the next annual meeting of the shareholders and until his or
her successor shall have been elected and qualified or until his or her earlier
resignation, removal from office or death.
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Section 3.04. Organization. At every meeting of the board of
directors, the chairman of the board, if there be one, or in the absence of the
chairman of the board, the chief executive officer, the president of the
corporation or a chairman chosen by a majority of the directors present, shall
preside, and the secretary or any person appointed by the chairman of the
meeting, shall act as secretary of the meeting.
Section 3.05. Place of Meetings. Meetings of the board of
directors of the corporation, regular or special, may be held either within or
without the State of Florida.
Section 3.06. Annual Meetings. The board of directors shall hold
an annual meeting each year immediately following the annual meeting of the
shareholders at the place where such meeting of the shareholders was held for
the purpose of election of officers and consideration of any other business that
may be properly brought before the meeting. Notice of such annual meetings need
not be given to either old or new members of the board of directors.
Section 3.07. Regular Meetings. If the board of directors
determines to hold regular meetings, such meetings shall be held on such dates
as shall be designated in this Section 3.07 by amendment to these bylaws. Notice
of such regular meetings need not be given to any member of the board of
directors.
Section 3.08. Special Meetings. Special meetings of the board of
directors may be called by any two directors, the chairman of the board, the
chief executive officer or the president on two days' prior written notice.
Section 3.09. Action by Written Consent Without a Meeting. Any
action of the board of directors or of any committee thereof, which is required
or permitted to be taken at a regular or special meeting, may be taken without a
meeting if consent in writing, setting forth the action so to be taken, signed
by all of the members of the board of directors or of the committee, as the case
may be, is filed in the minutes of the proceedings of the board of directors or
committee.
Section 3.10. Conference Telephone Meetings. One or more members
of the board of directors may participate in meetings of the board or a
committee of the board by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this section
shall constitute presence in person at such meeting.
Section 3.11. Quorum. A majority of the directors in office shall
be present at each meeting in order to constitute a quorum for the transaction
of business. Interested directors may be counted in determining the presence of
a quorum at a meeting of the board of directors which authorizes, approves or
ratifies such contract or transaction.
Section 3.12. Voting. Except as otherwise specified in the
articles of incorporation or these bylaws or provided by statute, the acts of a
majority of the directors present at a meeting at which a quorum is present
shall be the acts of the board of directors.
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Section 3.13. Adjournment. A majority of the directors present,
regardless of whether or not a quorum exists, may adjourn any meeting of the
board of directors, to another time and place and no notice of any adjourned
meeting need be given, other than by announcement at the meeting.
Section 3.14. Compensation. The board of directors shall have the
authority to fix the compensation of directors for their attendance at meetings
of the board of directors or committees thereof, and such compensation may
include expenses, if any, associated with attendance at such meetings.
Section 3.15. Resignations. Any director of the corporation may
resign at any time by giving written notice to the president or the secretary of
the corporation. Such resignation shall take effect at the date of the receipt
of such notice or at any later time specified therein and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 3.16. Vacancies. Any vacancy occurring in the board of
directors, including any vacancy created by reason of an increase in the number
of directors, may be filled by the affirmative vote of a majority of the
remaining directors, or by the shareholders in the manner provided in the
Florida Business Corporation Act. A director elected to fill a vacancy shall
hold office only until the next election of directors by the shareholders.
Section 3.17. Removal. Directors shall only be removable for
cause at a shareholders meeting by the affirmative vote of the majority of the
votes received from those holders entitled to vote.
Section 3.18. Executive and Other Committees of the Board. The
board of directors, by resolution adopted by a majority of the entire board,
shall designate from among its members an executive committee and may designate
one or more other committees. Each committee shall have two or more directors
who serve at the pleasure of the board of directors.
Each committee shall have and exercise such authority of the
board as provided in these bylaws or in the resolution designating the
committee, except that no committee of the board shall have the authority of the
board of directors to take any of the following actions:
(1) approve or recommend to shareholders actions or
proposals required by law to be approved by shareholders;
(2) fill vacancies on the board of directors or any
committee thereof;
(3) amend or repeal these bylaws;
(4) authorize or approve the reacquisition of shares
unless pursuant to a general formula or method specified by the board of
directors; or
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(5) authorize or approve the issuance or sale of or
contract for the sale of shares or determine the designation and relative
rights, preferences and limitations of a voting group unless within limits
specifically prescribed by the board of directors.
A majority of the directors in office designated to a committee shall
be present at each meeting to constitute a quorum for the transaction of
business and the acts of a majority of the directors in office designated to a
committee or their replacements shall be the acts of the committee.
Each committee shall keep regular minutes of its proceedings and report
such proceedings periodically to the board of directors.
Sections 3.05, 3.08, 3.09, 3.10 and 3.11 shall be applicable to
committees of the board of directors.
ARTICLE IV
Notice and Waiver of Notice
Section 4.01. Notice. Whenever written notice is required to be
given to any director under the provisions of the articles of incorporation,
these bylaws or the Florida Business Corporation Act, it shall be given by
personal delivery, facsimile transmission, delivery to an overnight courier
service or representative, deposit in the United States first-class mail, or by
certified or registered mail, addressed to the address of such person appearing
on the books of the corporation, or supplied by such person to the corporation
for the purpose of notice. A notice of a meeting shall specify the place, day
and hour of the meeting. Notices to shareholders shall be given as provided in
Section 2.06 hereof.
Section 4.02. Waiver of Notice. Whenever any notice is required
to be given under the Florida Business Corporation Act, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice. Except in the case of a special meeting of shareholders, neither
the business to be transacted at, nor the purpose of, the meeting need be
specified in the waiver of notice of such meeting.
Attendance of a person, either in person or by proxy, at any
meeting, shall constitute a waiver of notice of such meeting, unless and to the
extent the shareholder objects in the manner provided in the Florida Business
Corporation Act.
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ARTICLE V
Officers
Section 5.01. Number and Qualification. The officers of the
corporation shall consist of such officers and agents as may be appointed by the
board of directors. One person may hold more than one office. Officers may but
need not be directors or shareholders of the corporation. The board of directors
may elect from among the members of the board a chairman of the board who, if
elected, shall be an officer of the corporation. A duly appointed officer may
appoint one or more officers or assistant officers to the extent authorized by
the board of directors.
Section 5.02. Election and Term of Office. Except such officers
as may be elected pursuant to Section 5.03, the officers of the corporation
shall be appointed to hold office until the next annual organizational meeting
of directors and until a successor shall have been duly elected and qualified,
or until death, resignation or removal.
Section 5.03. Subordinate Officers, Committees and Agents. The
board of directors may from time to time elect such officers and appoint such
committees, employees or other agents as the board of directors deems the
business of the corporation may require, to hold office for such period, have
such authority, and perform such duties as are provided in these bylaws, or as
the board of directors may delegate.
Section 5.04. The Chairman of the Board. The chairman of the
board shall have general supervision, direction and control over the business
and operations of the corporation, subject to the authority of the board of
directors. The chairman of the board shall sign, execute and acknowledge, in the
name of the corporation, deeds, mortgages, bonds, contracts or other instruments
except in cases where the signing and execution thereof shall be expressly
delegated by the board of directors, or by these bylaws, to some other officer
or agent of the corporation. The chairman of the board shall preside at all
meetings of the shareholders and of the board of directors, and shall perform
such other duties as may from time to time be assigned by the board of
directors.
Section 5.05. The Chief Executive Officer. The board of directors
may designate a chief executive officer. In the absence of such designation, the
chairman of the board shall be the chief executive officer of the corporation.
The chief executive officer shall have general responsibility for implementation
of the policies of the corporation, as determined by the board of directors, and
for the management of the business and affairs of the corporation.
Section 5.06. The President. The president shall perform all
duties incident to the office of president and such other duties as from time to
time may be assigned to him by the board of directors.
Section 5.07. The Chief Financial Officer. The board of directors may
designate a chief financial officer. The chief financial officer shall have the
responsibilities and duties as set forth by the board of directors.
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Section 5.08. The Vice Presidents. The vice presidents shall
perform duties as may from time to time be assigned to them by the board of
directors or the president.
Section 5.09. The Secretary. The secretary shall attend all
meetings of the board of directors and committees thereof and shall record the
time and place of holding of such meeting, whether regular or special, and if
special, how authorized, the notice given, the names of those present at
directors' meetings or the number of shares present or represented at
shareholders' meetings in books to be kept for that purpose; shall see that
notices are given and records and reports properly kept and filed by the
corporation as required by law; shall be the custodian of the seal of the
corporation and see that it is affixed to all documents to be executed on behalf
of the corporation under its seal; and, in general, shall perform all duties
incident to the office of secretary, and such other duties as may from time to
time be assigned by the board of directors or the president.
Section 5.10. The Treasurer. The treasurer, if elected, shall
have or provide for the custody of the funds or other property of the
corporation and shall keep a separate book account of the same as treasurer;
shall keep and maintain, or cause to be kept and maintained, adequate and
correct accounts of the properties and business transactions of the corporation,
including, but not limited to, accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital- surplus and shares; shall collect and
receive or provide for the collection and receipt of moneys earned by or in any
manner due to or received by the corporation; shall deposit all funds in his or
her custody as treasurer in such banks or other places of deposit as the board
of directors may from time to time designate; shall, whenever so required by the
board of directors, render an accounting showing transactions as treasurer and
the financial condition of the corporation; and, in general, shall discharge
such other duties as may from time to time be assigned by the board of directors
or the president. The books of account shall be open at all reasonable times to
inspection by any director. In the absence of a designation of a chief financial
officer by the board of directors, the treasurer shall be the chief financial
officer of the corporation.
Section 5.11. Salaries and Compensation. The salaries, if any, of
the officers elected by the board of directors shall be fixed from time to time
by the board of directors or by such officer as may be designated by resolution
of the board. The salaries or other compensation of any officers, employees and
agents elected, appointed or retained by an officer or committee to which the
board of directors has delegated such a power shall be fixed from time to time
by such officer or committee. No officer shall be prevented from receiving such
salary or other compensation by reason of the fact that he or she is also
director of the corporation.
Section 5.12. Resignations. Any officer or agent may resign at
any time by giving written notice of resignation to the board of directors or to
the president or the secretary of the corporation. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
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Section 5.13. Removal. Any officer, committee member, employee or
agent of the corporation may be removed, either for or without cause, by the
board of directors or other authority which elected or appointed such officer,
committee member or other agent.
Section 5.14. Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification, or any other cause, shall be
filled by the board of directors or by the officer or committee to which the
power to fill such office has been delegated, as the case may be.
ARTICLE VI
Certificates of Stock, Transfer
Section 6.01. Share Certificates, Issuance. Every shareholder
shall be entitled to have a certificate representing all shares to which the
shareholder is entitled; and such certificate shall be signed (either manually
or in facsimile) by the chairman of the board, if any, or by the chief executive
officer, president, chief financial officer or a vice president and by the
secretary or any assistant secretary of the corporation and may be sealed with
the corporate seal or a facsimile thereof. In the event any officer who has
assigned, or whose facsimile signature has been placed upon any share
certificate shall have ceased to be such officer because of death, resignation
or otherwise, before the certificate is issued, it may be issued with the same
effect as if the officer had not ceased to be such at the date of its issue.
Certificates representing shares of the corporation shall otherwise be in such
form as provided by statute and approved by the board of directors. Every
certificate exchanged or returned to the corporation shall be marked "CANCELED",
with the date of cancellation.
Section 6.02. Transfer. Transfers of shares shall be made on the
books of the corporation upon surrender of the certificates therefor, endorsed
by the person named in the certificate or by an attorney lawfully constituted in
writing.
Section 6.03. Registered Shareholders. Except as otherwise
expressly set forth in these bylaws, the corporation shall be entitled to
recognize a person registered on its books in whose name any shares of the
corporation are registered as the absolute owner thereof with the exclusive
rights to receive dividends, and to vote such shares as owner. Except as
otherwise provided by law, the corporation shall not be bound to recognize any
equitable or other claim regardless of whether the corporation shall have
express or other notice thereof.
Section 6.04. Lost, Destroyed or Mutilated Certificates. The
holder of any shares of the corporation shall immediately notify the corporation
of any loss, destruction or mutilation of the certificates therefor, and the
board of directors may, in its discretion, cause new certificates to be issued
to him, upon satisfactory proof of such loss, destruction, or mutilation and, if
the board of directors shall so determine, the deposit of a bond in such form
and in such sum, and with such surety or sureties, as it may direct.
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ARTICLE VII
Indemnification of Directors, Officers, Employees and Agents
Section 7.01. Directors, Officers, Employees and Agents. The
corporation shall indemnify any person who was or is a party or is threatened to
be made a party (which shall include the giving of testimony or similar
involvement) to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by, or in the right of the corporation) by reason of the fact that he or she is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of any other corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding, including any appeal thereof,
if he or she acted in good faith in a manner he or she reasonably believed to be
in, or not opposed to the best interests of the corporation, and with respect to
any criminal action or proceedings, had no reasonable cause to believe that his
or her conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent shall not create, of itself, a presumption that the person did
not act in good faith or in a manner which he or she reasonably believed to be
in, or not opposed to, the best interest of the corporation or, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
The corporation shall indemnify any person who was or is a party,
or is threatened to be made a party (which shall include the giving of testimony
or similar involvement), to any threatened, pending, or completed action or suit
by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he or she is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees) and amounts paid in settlement (to the extent permitted by law), including
any appeal thereof. Such indemnification shall be authorized if such person
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable unless, and only to the
extent that, the court in which such proceeding was brought, or any other court
of competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
such court shall deem proper.
Section 7.02. Expenses. To the extent that a director, officer,
employee or agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to above, or in
any defense of any claim, issue or matter therein, the corporation shall
indemnify him or her against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith.
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Section 7.03. Determination of Standard of Conduct. Any
indemnification hereunder, unless pursuant to a determination by a court, shall
be made by the corporation as authorized upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth above. Such determination shall be made either (1) by the board of
directors by a majority vote of a quorum consisting of directors who were not
parties to such proceeding, (2) by majority vote of a committee duly designated
by the board of directors consisting of two or more directors not at the time
parties to the proceeding, (3) by the shareholders who were not parties to such
action, suit or proceedings, or (4) by independent legal counsel (selected in
accordance with the Florida Business Corporation Act) in a written opinion.
Section 7.04. Advance Expenses. Expenses including attorney's
fees incurred in defending any action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding as authorized in the manner provided above or upon receipt of any
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount, unless it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation as authorized herein.
Section 7.05. Benefit. The indemnification provided by this
Article VII shall be in addition to the indemnification rights provided pursuant
to the Florida Business Corporation Act and shall not be deemed exclusive of any
other rights to which person seeking indemnification may be entitled under any
bylaw, agreement, vote of shareholders or disinterested directors or otherwise,
both as to action in such person's official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who has
ceased to be a director, officer, employee or agent of the corporation and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
Section 7.06. Insurance. The corporation shall be empowered to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against liability asserted against such person and incurred by him or her in any
such capacity or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify such person against such liability
under the provisions contained herein.
Section 7.07. No Rights of Subrogation. Indemnification herein
shall be a personal right and, the corporation shall have no liability under
this Article VII to any insurer or any person, corporation, partnership,
association, trust or other entity (other than the heirs, executors or
administrators of such person) by reason of subrogation, assignment or
succession by any other means to the claim of any person to indemnification
hereunder.
Section 7.08. Indemnification for Past Directors. Indemnification
as provided in this section shall continue as to a person who has ceased to be a
director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
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Section 7.09. Affiliates. For the purposes of this Article VII,
references to "the corporation" include all constituent corporations absorbed in
a consolidation or merger, as well as the resulting or surviving corporation, so
that any person who is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under the provisions of this Article VII with respect to the resulting
or surviving corporation as he or she would if he or she had served the
resulting or surviving corporation in the same capacity.
Section 7.10. Reliance and Non-Exclusivity. Each person who shall
act as an authorized representative of the corporation shall be deemed to be
doing so in reliance upon such rights of indemnification as are provided in this
Article VII.
Section 7.11. Miscellaneous. The corporation shall have the power
to make any other or further indemnification, except an indemnification against
gross negligence or willful misconduct, under any bylaw, agreement, vote of
shareholders or disinterested directors, or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
Section 7.12 Insider Trading Violations Exclusion.
Notwithstanding anything to the contrary in this Article VII or the Florida
Business Corporation Act, the corporation shall not indemnify any person who was
or is a party to any claim, action, suit or proceeding arising out of or
resulting from any violation by such person of (i) the Safeskin Corporation
Policy Statement on Securities Trading by Safeskin Personnel, as it may be
amended by the Board of Directors from time to time, or (ii) Sections 16, 20A or
21A of the Securities Exchange Act of 1934 and regulations promulgated
thereunder; except that the corporation shall indemnify such person, in the
manner provided in this Article VII, in the event such person has successfully
defended any such action, suit or proceeding on the merits and such action, suit
or proceeding has terminated with no possibility of further appeal or in the
event the Board of Directors so determines.
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ARTICLE VIII
Miscellaneous
Section 8.01. Checks. All checks or demands for money and notes
of the corporation shall be signed by such officer or officers or such other
person or persons as the board of directors may designate from time to time.
Section 8.02. Dividends. The board of directors, at any regular
or special meeting thereof, subject to any restrictions contained in the
articles of incorporation, may declare and pay dividends upon the shares of the
corporation's stock in cash, property or the corporation's shares in accordance
with the Florida Business Corporation Act.
Section 8.03. Deposits. All funds of the corporation shall be
deposited from time to time to the credit of the corporation in such financial
institutions or other depositaries as the board of directors may approve or
designate.
Section 8.04. Fiscal Year. The fiscal year of the corporation
shall end on the 31st day of December in each year.
Section 8.05. Severability. The provisions of these bylaws shall
be separable each from any and all other provisions of these bylaws, and if any
such provision shall be adjudged to be invalid or unenforceable, such invalidity
or unenforceability shall not affect any other provision hereof, or the powers
granted to this corporation by the articles of incorporation or bylaws.
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