As filed with the Securities and Exchange Commission on May 20, 1999
Registration No. 333-__________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------------
IMMUCOR, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
---------------------
GEORGIA 22-2408354
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
3130 Gateway Drive
Norcross, Georgia 30091
(770) 441-2051
(Address, including zip code, and telephone number, including area code,
of principal executive offices)
Edward L. Gallup
Chief Executive Officer and President
Immucor, Inc.
3130 Gateway Drive
Norcross, Georgia 30091
Telephone: (770) 441-2051
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------------------
A COPY OF ALL COMMUNICATIONS, INCLUDING COMMUNICATIONS SENT TO THE
AGENT FOR SERVICE SHOULD BE SENT TO:
Philip H. Moise, Esq.
Nelson Mullins Riley & Scarborough, L.L.P.
999 Peachtree Street, N.E., Suite 1400
Atlanta, Georgia 30309
Telephone: (404) 817-6000
Facsimile: (404) 817-6050
Approximate date of commencement of proposed sale to public: From time
to time after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
<PAGE>
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / __________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / / __________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------ -------------------- ---------------------- ----------------------- --------------------
Proposed Maximum Proposed Maximum
Amount to be Aggregate Price Per Aggregate Offering Amount of
Title of Shares to be Registered Registered Share Price Registration Fee1
- ------------------------------------------ -------------------- ---------------------- ----------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock, no par value per share..... 628,4172 $12.00 $7,540,464 $2,096.25
- ------------------------------------------ -------------------- ---------------------- ----------------------- --------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 promulgated under the Securities Act of
1933, as amended.
(2) Represents shares issuable upon exercise of warrants issued to the selling
shareholders in connection with our acquisition of Dominion Biologicals Limited.
</FN>
</TABLE>
<PAGE>
PRELIMINARY PROSPECTUS, SUBJECT TO COMPLETION,
DATED MAY 19, 1999
628,417 SHARES
COMMON STOCK
IMMUCOR, INC.
On December 11, 1996, we issued warrants to purchase shares of our
common stock to the shareholders of Dominion Biologicals Limited in connection
with our acquisition of Dominion. We are filing this registration statement and
prospectus on behalf of those individuals who may exercise their warrants and
sell the common stock under this prospectus. Those selling shareholders and the
number of shares of our common stock that they may acquire upon exercise of
these warrants are listed on page 5 of this prospectus.
The selling shareholders may offer the shares from time to time in
public or private transactions on or off the Nasdaq National Market, at
prevailing market prices or privately negotiated prices. Sales may be made
through brokers, dealers or other agents who may receive compensation in the
form of commissions, discounts or concessions.
Our common stock is quoted on The Nasdaq National Market under the
symbol "BLUD." On May 18, 1999, the closing sales price of our common stock on
The Nasdaq National Market was $12.625.
We will not receive any proceeds from the sale of the common stock, but
will receive the exercise price of the warrants.
You should read the description of certain risks under the caption
"Risk Factors" beginning on page 3 before purchasing our common stock.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
May 19, 1999
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is permitted.
<PAGE>
INFORMATION ABOUT THE COMPANY
At Immucor, Inc., we develop, manufacture and sell reagents and systems
used by hospitals, labs and blood banks to determine the type of human blood,
detect the presence of certain antibodies in human blood, and detect and
identify certain other properties of human blood.
We file reports, proxy statements and other information with the SEC.
You may read and copy any document we file at the Public Reference Room of the
SEC at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at
the Regional Offices of the SEC at Seven World Trade Center, Suite 1300, New
York, New York 10048 and at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Please call 1-800-SEC-0330 for further information
concerning the Public Reference Room. Our filings also are available to the
public from the SEC's website at www.sec.gov. We distribute to our shareholders
annual reports containing audited financial statements.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with it, which means that we can disclose important information to you by
referring to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until the offering is completed:
1. Annual Report on Form 10-K for the year ended May 31, 1998.
2. Quarterly Reports on Form 10-Q for the quarters ended August 31, 1998,
November 30, 1998, and February 28, 1999.
3. Current Report on Form 8-K dated April 19, 1999; and
4. Current Report on Form 8-K dated December 11, 1996; and
5. Description of our common stock contained in the Registration Statement on
Form 8-A (Registration No. 0-14820) as declared effective by the SEC on July 21,
1986, as amended by various reports and other documents filed under the Exchange
Act.
You may request a copy of these filings, at no cost, by writing or calling us
at:
IMMUCOR, INC.
3130 Gateway Drive
Norcross, Georgia 30091
Attention: Chief Financial Officer
Telephone: (770) 441-2051
This prospectus is part of a registration statement we filed with the SEC. You
should rely only on the information or representations provided in this
prospectus. We have not authorized anyone to provide you with different
information. The common stock will not be offered in any state where an offer is
not permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the date on the cover of this prospectus.
<PAGE>
RISK FACTORS
Before you invest in our common stock, you should be aware that there
are various risks, including those described below. You should consider
carefully these risk factors together with all of the other information included
in this prospectus, including the documents that we incorporate by reference,
before you decide to purchase shares of common stock.
Some of the information in this prospectus may contain forward-looking
statements. Such statements can be identified by the use of forward-looking
terminology such as "may," "will," "expect," "believe," "intend," "anticipate,"
"estimate," "continue" or similar words. These statements discuss future
expectations, estimate the happening of future events or our financial condition
or state other "forward-looking" information. When considering such
forward-looking statements, you should keep in mind the risk factors and other
cautionary statements in this prospectus and the documents that we incorporate
by reference. The risk factors noted in this section and other factors noted
throughout this prospectus, including certain risks and uncertainties, could
cause our actual results to differ materially from those contained in any
forward-looking statement.
If our blood bank automation system does not gain market acceptance we will be
more susceptible to price competition.
We sell the only automated blood bank detection system in North
America. If customers choose not to use our automated system or if we cannot
continue to place them, either because of a decision not to make the capital
investment required, not to change product lines, or because a competitor
develops a new system that is faster or less capital intensive, then we will be
forced to compete mainly on price. In the non-automated blood bank systems
market, our principal competitors are divisions of large corporations. Because
these large corporations may have greater resources and be able to compete
aggressively on price, the lack of commercial acceptance of our automated
product may result in price reductions, lower profit margins and loss of our
market share, any of which could have a material adverse effect on our business,
financial condition and operating results.
The development of new technology by our competitors could result in lower
sales.
If our competitors develop new technology that can inactivate
antibodies or that results in the development of artificial blood, it could
reduce the number of test systems that we sell. Our products test for the
presence of certain antibodies in human blood to insure proper diagnosis of
certain medical conditions. If these antibodies can be deactivated then there
will be less of a need for our products. In addition, artificial blood, if
developed, would likely not contain natural antibodies.
Failure to comply with stringent government regulation could prevent us from
selling our products.
Neither our existing products nor any new products which may be
developed will be able to be marketed commercially for clinical use in the
United States or certain foreign countries in which they have not been approved.
Our reagents, detection systems and other products are subject to strict
regulation and licensing by the FDA, including the need for approval prior to
marketing, and by other state and foreign agencies. In addition, facilities in
the United States and abroad are subject to periodic inspection by the FDA.
There has been an increasing level of regulatory scrutiny in the industry by the
FDA resulting in more detailed and frequent inspections, and a greater number of
observations cited per inspection, deficiency notices and warning letters.
Failure to correct any deficiencies or to otherwise comply with applicable laws
or regulations could subject us to enforcement action, including product
seizures, recalls, center or facility closure, license revocations and civil and
criminal penalties, any one or more of which could have a material adverse
effect on our business. Any change in existing federal, state or foreign laws or
regulations, or in the interpretation or enforcement of them, or the
promulgation of any additional laws or regulations could have an adverse effect
on our business.
<PAGE>
We are dependent upon single source suppliers.
We purchase certain supplies for our operations from single source
suppliers. The disruption of existing supply relationships could impair our
ability to process, manufacture and test products or cause us to incur costs
associated with the development of alternative sources. In addition, in some
instances FDA approval would be required to replace or substitute a supplier or
component that we use. Any such disruption could result in delays in obtaining
antibodies or making product shipments, which could have a material adverse
effect on our financial condition and results of operations.
There are risks associated with international operations.
We generate sales outside the United States and incur expenses in
foreign currencies and are subject to risks generally associated with
international operations. Accordingly, our financial results from international
operations may be affected by fluctuations in currency exchange rates.
We may be unable to protect adequately our proprietary technology.
Our success and ability to compete are dependent largely upon our
proprietary technology. We cannot be certain that we have taken adequate steps
to deter misappropriation or independent third-party development of our
technology. In addition, we cannot be certain that third parties will not assert
infringement claims in the future or, if infringement claims are asserted, that
such claims will be resolved in our favor. Although we are not currently subject
to any dispute that would prevent us from using our proprietary technology as we
plan, any infringement claims resolved against us could have a material adverse
effect on our business, financial condition or results of operations.
Our stock price is volatile.
There has been significant volatility in the market price of securities
of healthcare companies that often has been unrelated to the operating
performance of such companies. We believe that factors such as legislative,
regulatory and technological developments, failure to meet securities analysts'
performance expectations and quarterly variations in financial results could
cause the market price of the common stock to fluctuate substantially.
<PAGE>
USE OF PROCEEDS
All net proceeds from the sale of the shares described in this
prospectus will go to the selling shareholders who offer and sell their shares.
We will not receive any proceeds from sales of shares by the selling
shareholders.
SELLING SHAREHOLDERS
All of the share amounts listed below represent shares issuable upon
exercise of warrants issued in connection with our acquisition of Dominion
Biologicals Limited. The shares offered by this prospectus may be offered from
time to time by the selling shareholders named below upon the exercise of their
warrants. The following table lists the selling shareholders and the number and
percentage of shares of common stock beneficially owned by each selling
shareholder before and after the offering of the shares. Because the selling
shareholders may sell all, some or none of their shares, no estimate can be made
of the actual number of shares that will be offered. The number and percentage
of shares of common stock provided in the following table represent the number
of shares of common stock as to which warrants held by the selling shareholders
may be exercised. For the purpose of determining the percentage of shares of
common stock beneficially owned by each selling shareholder, we have assumed
that all warrants held by the selling shareholders have been exercised, and no
other warrants have been exercised. Only percentages of one percent or greater
are shown, and footnotes are provided at the end of the table.
<TABLE>
<CAPTION>
Shares Shares
Beneficially Beneficially
Owned Before the Shares Owned After the
Offering Offered Offering
Name Number Percent(1) Number Percent(1)
<S> <C> <C> <C> <C> <C>
Patrick Waddy 271,139 (2) 3.3 251,139 20,000 * (3)
Blaine McNeil 170,606 (4) 2.1 167,806 2,800 *
Nubio Technologies Corporation 209,472 2.6 209,472 0 *
<FN>
(1) Calculated based upon 8,101,309 shares of common stock outstanding, assuming
that all warrants issued in connection with the acquisition of Dominion
Biologicals have been exercised.
(2) Includes: 20,000 shares owned directly by Mr.Waddy and warrants to purchase
251,139 shares of common stock in connection with the acquisition of Dominion
Biologicals.
(3) Represents less than 1%.
(4) Includes: 2,800 shares owned directly by Mr. McNeil and warrants to purchase
167,806 shares of common stock in connection with the acquisition of Dominion
Biologicals.
</FN>
</TABLE>
<PAGE>
PLAN OF DISTRIBUTION
The selling shareholders may sell or transfer all or a portion of the
shares offered hereby from time to time to third parties directly or by or
through brokers, dealers, agents or underwriters, who may receive compensation
in the form of underwriting discounts, concessions or commissions from the
selling shareholders and/or from purchasers of the shares for whom they may act
as agent. Such sales and transfers of the shares may be effected from time to
time in one or more transactions on the Nasdaq National Market, in negotiated
transactions or otherwise, at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at negotiated prices, or without
consideration, or by any other legally available means. Any or all of the shares
may be sold or transferred from time to time by means of
o a block trade in which the broker or dealer so engaged will attempt to sell
the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker or dealer as principal and resale by such broker or
dealer for its account pursuant to this prospectus;
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
o through the writing of options on the shares;
o pledges as collateral to secure loans, credit or other financing
arrangements and any subsequent foreclosure, if any, thereunder;
o gifts, donations and contributions;
o otherwise.
To the extent required, the number of shares to be sold or transferred,
the purchase price, the name of any such agent, broker, dealer or underwriter
and any applicable discounts or commissions and any other required information
with respect to a particular offer will be set forth in an accompanying
prospectus supplement. The aggregate net proceeds to the selling shareholders
from the sale of the shares will be the purchase price of such shares less any
commissions. This prospectus also may be used, with our prior written consent,
by donees and pledgees of the selling shareholders.
In order to comply with the securities laws of some states, if
applicable, the shares will be sold in those jurisdictions only through
registered or licensed brokers or dealers. In addition, in some states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The selling shareholders and any brokers, dealers, agents or
underwriters that participate in the distribution of the shares may be deemed to
be "underwriters" within the meaning of the Securities Act, in which event any
discounts, concessions and commissions received by such brokers, dealers, agents
or underwriters and any profit on the resale of the Shares purchased by them may
be deemed to be underwriting commissions or discounts under the Securities Act.
No underwriter, broker, dealer or agent has been engaged by us in
connection with the distribution of the shares.
Any shares covered by this prospectus which qualify for sale pursuant
to Rule 144 under the Securities Act may be sold under Rule 144 rather than
pursuant to this prospectus. There is no assurance that the selling shareholders
will sell any or all of the shares. The selling shareholders may transfer,
devise or gift shares by other means not described herein.
We will pay all of the expenses incident to the registration of the
shares, other than underwriting discounts and selling commissions, if any.
<PAGE>
LEGAL MATTERS
The validity of the shares of common stock offered hereby has been
passed upon by Nelson Mullins Riley & Scarborough, L.L.P., Atlanta, Georgia.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual Report on Form 10-K for
the year ended May 31, 1998, as set forth in their report, which is incorporated
by reference in this prospectus and elsewhere in the registration statement. Our
financial statements and schedule are incorporated by reference in reliance on
Ernst & Young LLP's report, given on their authority as experts in accounting
and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses payable by the Registrant in connection with the issuance
and distribution of the securities being registered are estimated below:
SEC registration fee.................................$ 2,096.25
Listing fees......................................... 12,528.34
Legal fees and expenses.............................. 10,000.00
Printing expenses.................................... 1,000.00
Accounting fees...................................... 3,800.00
Miscellaneous........................................ 0.00
Total.......................................$ 29,424.59
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14-2-850, et. seq., of the Georgia Business Corporation Code
authorizes us to indemnify our directors, officers, employees and agents in
certain circumstances. Section 14-2-856 of the Code expressly allows us to
provide indemnification rights that are broader than provided under the Code if
contained in a bylaw ratified by the shareholders by a majority of the shares to
be cast. Article Eight of our Bylaws provides broader indemnification rights
than expressly provided under the Code and, except for that part of Article
Eight that obligates us to indemnify certain executive officers, discussed
below, was previously ratified by our shareholders. The following is a summary
of the material provisions of Article Eight.
Directors
Article Eight generally requires us to indemnify persons who are
parties to any civil, criminal, administrative or investigative action, suit or
proceeding by reason of the fact that such person was or is one of our
directors. Except as noted in the next paragraph, directors are entitled to be
indemnified against expenses (including but not limited to attorneys' fees and
court costs), and against any judgments, fines and amounts paid in settlement
actually and reasonably incurred by them. Directors also generally are entitled
to have us advance any of those expenses prior to final disposition of the
proceeding provided that:
<PAGE>
(1) the director furnishes us with a written affirmation of his or her good
faith belief that he or she is entitled to indemnification, either because
he or she met the relevant standard of conduct or because the proceeding
involves conduct for which liability has been eliminated under a provision
of the articles of incorporation;
(2) the Board of Directors has not made its own determination that the director
is not entitled to indemnification; and
(3) the director furnishes us with an undertaking to repay us if it is
ultimately determined that they are not entitled to indemnification.
The Code prohibits us from indemnifying directors for the following
types of liabilities:
(1) any appropriation, in violation of the director's duties, of any of our
business opportunities;
(2) acts or omissions which involved intentional misconduct or a knowing
violation of law;
(3) liability under Section 14-2-832 of the Code (dealing with unlawful
dividends or other distributions); and
(4) any transaction from which the director derived an improper personal
benefit. In addition, our bylaws do not provide for indemnification to
directors to the extent the amounts for which indemnification is sought do
not exceed the director's compensation for services as a director during
the 12-month period preceding the director's breach of duty.
Executive Officers
The Board of Directors recently amended our bylaws to extend our
indemnification obligation to persons identified as executive officers in our
filings with the SEC, but our shareholders have not yet ratified this amendment.
The indemnification to be provided to those executive officers is substantially
the same as that to be provided to directors. However, this bylaw will extend
greater indemnification to those executive officers than that authorized by the
Code. Therefore, this bylaw will not be fully effective until ratified by the
shareholders by a majority of the shares cast, and we anticipate that the
ratification of this bylaw will be on the agenda at the next annual meeting of
shareholders which is expected to be held on September 16, 1999.
Officers, Employees and Agents
In addition, the Board of Directors also can extend to officers,
employees and agents the same indemnification rights held by directors, subject
to all of the accompanying conditions and obligations, except that the
indemnification so provided need not be limited by a requirement that officers,
employees and agents bear the liability up to the amount of their compensation
over a 12-month period. Except for persons identified as executive officers in
our filings with the SEC, the Board of Directors has not yet extended
indemnification rights to any officers, employees or agents.
Miscellaneous
Upon authorization by the Board of Directors, we can enter into an
agreement or agreements providing to any person who was or is one of our
directors, officers, employees or agents, indemnification rights substantially
the same as those provided to directors under Article Eight. We currently do not
plan to enter into any agreements of indemnity.
Finally, we can purchase and maintain insurance on behalf of any person
who is or was one of our directors, officers, employees or agents against any
liability asserted against him or incurred by him in any such capacity, whether
or not we would have the power to indemnify him against that liability under
Article Eight.
<PAGE>
ITEM 16. EXHIBITS
EXHIBIT
NO. DESCRIPTION
3.1 Articles of Correction of Immucor, Inc.
3.2 Amended and Restated Bylaws of Immucor, Inc.
4.1 Share Purchase Agreement (incorporated by reference to the Registrant's
Current Report on Form 8-K, date of filing December 26, 1996).
5.1 Opinion of Nelson Mullins Riley & Scarborough, LLP.
23.1 Consent of Nelson Mullins Riley & Scarborough, LLP.
(included in Exhibit 5.1)
23.2 Consent of Ernst & Young, LLP.
ITEM 17. UNDERTAKINGS.
Rule 415 offering
The undersigned issuer hereby undertakes that it will:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by section l0(a) (3) of the
Securities Act of 1933.
(ii) Reflect in the prospectus any facts or events which, individually
or in the aggregate, represent a fundamental change in the information
set forth in the registrant 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 a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) 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.
<PAGE>
(2) For determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed a new registration statement relating
to the securities offered therein, and the offering of such securities at that
time to be the initial bona fide offering thereof.
(3) Remove from registration by means of a post-effective amendment any of the
securities being registered that remain unsold at the termination of the
offering.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, hereunto duly
authorized, in the City of Norcross, State of Georgia, on May 19, 1999.
IMMUCOR, INC.
By: By:
/s/ Edward L. Gallup /s/ Steven C. Ramsey
Edward L. Gallup.. Steven C. Ramsey
Chief Executive Officer Chief Financial Officer
and President (Principal (Principal Financial and
Executive Officer) Accounting Officer)
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Edward L. Gallup and Steven C. Ramsey and either of them his true and
lawful attorney-in-fact with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
sign a Registration Statement pursuant to Rule 462(b) under the Securities Act
of 1933 and to cause the same to be filed, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby granting to said attorneys-in fact and agents, full power and authority
to do and perform each and every act and thing whatsoever requisite or desirable
to be done in and about the premises, as fully to all intents and purposes as
the undersigned might or could do in person, hereby ratifying and confirming all
acts and things that said attorneys-in-fact and agents, or their substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 19, 1999.
SIGNATURES TITLE
- ---------- -----
/s/ Edward L. Gallup Chief Executive Officer,
Edward L. Gallup President and Director
(Principal Executive Officer)
/s/ Steven C. Ramsey Chief Financial Officer
Steven C. Ramsey (Principal Financial and
Accounting Officer)
/s/ Ralph A. Eatz Director
Ralph A. Eatz
/s/ Giocchino De Chirico Director
Dr. Gioacchino De Chirico
/s/ Daniel T. McKeithan Director
Daniel T. McKeithan
/s/ Didier L. Lanson Director
Didier L. Lanson
/s/ G. Bruce Papesh Director
G. Bruce Papesh
/s/ Dennis M. Smith Director
Dennis M. Smith
/s/ Joseph E. Rosen Director
Joseph E. Rosen
<PAGE>
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
3.1 Articles of Correction of Immucor, Inc.
3.2 Amended and Restated Bylaws of Immucor, Inc.
4.1 Share Purchase Agreement (incorporated by reference to the Registrant's
Current Report on Form 8-K, date of filing December 26, 1996).
5.1 Opinion of Nelson Mullins Riley & Scarborough, LLP.
23.1 Consent of Nelson Mullins Riley & Scarborough, LLP.
(included in Exhibit 5.1)
23.2 Consent of Ernst & Young, LLP.
EXHIBIT 3.1
ARTICLES OF CORRECTION
TO THE
ARTICLES OF AMENDMENT
TO THE ARTICLES OF INCORPORATION
OF
IMMUCOR, INC.
IMMUCOR, INC., a Georgia corporation (the "Corporation"), hereby files
Articles of Correction as follows:
1.
The document to be corrected is the Articles of Amendment to the
Articles of Incorporation of the Corporation, filed with the Secretary of State
on December 22, 1989.
2.
The incorrect statement in said Articles of Amendment is the following
provision set forth in the Eleventh Article thereof:
ELEVENTH: The personal liability of a director of the
corporation to the corporation or its shareholders for monetary damages
for breach of duty of care or other duty as a director shall be limited
to an amount not exceeding said director's compensation for services as
a director during the twelve-month period immediately preceding such
breach, except that a director's liability shall not be so limited for
(i) any appropriation, in violation of the director's duties, of any business
opportunity of the corporation,
(ii) acts or omissions which involved intentional misconduct or a knowing
violation of law,
(iii)liability under Section 14-2-831 (or any successor provision or
redesignation thereof) of the Georgia Business Corporation Code, and
(iv) any transaction from which the director derived an improper personal
benefit.
For purposes of this Article Eleventh, a director's
compensation for serving as a director shall not include amounts
received as reimbursement for expenses, or for services as an officer,
employee or agent.
If at any time the Georgia Business Corporation Code shall
have been amended to authorize the further elimination or limitation of
the liability of a director, then the liability of each director of the
corporation shall be eliminated or limited to the fullest extent
permitted by such Code, as so amended, without further action by the
shareholders, unless the provisions of the Georgia Business Corporation
Code, as amended, require further action by the shareholders.
Any repeal or modification of the foregoing provisions of this
Article Eleventh shall not adversely affect the elimination or
limitation of liability or alleged liability of any director of the
corporation pursuant to Article Eleventh as in effect prior to such
repeal or modification, for or with respect to any acts or omissions of
such director prior to such repeal or modification.
The foregoing statement is incorrect because clause (iii) in the first paragraph
of Article Eleven incorrectly referred to Section 14-2-831 of the Code rather
than Section 14-2-832 of the Code.
3.
The foregoing Articles of Amendment are hereby corrected by deleting
Article Eleven thereof and replacing it with the following:
"Effective the date hereof, Article Eleven of the Articles
of Incorporation of Immucor, Inc. is amended to read as follows:
ELEVENTH: The personal liability of a director of the
corporation to the corporation or its shareholders for monetary damages
for breach of duty of care or other duty as a director shall be limited
to an amount not exceeding said director's compensation for services as
a director during the twelve-month period immediately preceding such
breach, except that a director's liability shall not be so limited for
(v) any appropriation, in violation of the director's duties, of any
business opportunity of the corporation,
(vi) acts or omissions which involved intentional misconduct or a knowing
violation of law,
(vii) liability under Section 14-2-832 (or any successor provision or
redesignation thereof) of the Georgia Business Corporation Code, and
(viii) any transaction from which the director derived an improper personal
benefit.
For purposes of this Article Eleventh, a director's
compensation for serving as a director shall not include amounts
received as reimbursement for expenses, or for services as an officer,
employee or agent.
If at any time the Georgia Business Corporation Code shall
have been amended to authorize the further elimination or limitation of
the liability of a director, then the liability of each director of the
corporation shall be eliminated or limited to the fullest extent
permitted by such Code, as so amended, without further action by the
shareholders, unless the provisions of the Georgia Business Corporation
Code, as amended, require further action by the shareholders.
Any repeal or modification of the foregoing provisions of this
Article Eleventh shall not adversely affect the elimination or
limitation of liability or alleged liability of any director of the
corporation pursuant to Article Eleventh as in effect prior to such
repeal or modification, for or with respect to any acts or omissions of
such director prior to such repeal or modification."
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Correction to be executed by its duly authorized officer, this first day of
April, 1999.
IMMUCOR, INC.
By:/s/ Edward L. Gallup
Edward L. Gallup, President
BYLAWS
OF
IMMUCOR, INC.
Amended and Restated as of April 16, 1999
<PAGE>
BYLAWS
OF
IMMUCOR, INC.
TABLE OF CONTENTS
Page
Article One Office....................................................1
1.1 Registered Office and Agent........................................1
1.2 Principal Office...................................................1
1.3 Other Offices......................................................1
Article Two Shareholders' Meetings....................................1
2.1 Place of Meetings..................................................1
2.2 Annual Meetings....................................................1
2.3 Special Meetings...................................................2
2.4 Notice of Meetings.................................................2
2.5 Waiver of Notice...................................................2
2.6 Voting Group; Quorum; Vote Required to Act.........................2
2.7 Voting of Shares...................................................3
2.8 Proxies ..........................................................3
2.9 Presiding Officer..................................................3
2.10 Adjournments.......................................................3
2.11 Conduct of the Meeting.............................................4
2.12 Action of Shareholders Without a Meeting...........................4
2.13 Matters Considered at Annual Meetings..............................4
Article Three Board of Directors........................................5
3.1 General Powers.....................................................5
3.2 Number, Election and Term of Office................................5
3.3 Removal of Directors...............................................5
3.4 Vacancies..........................................................5
3.5 Compensation.......................................................6
3.6 Committees of the Board of Directors...............................6
3.7 Qualification of Directors.........................................6
3.8 Certain Nomination Requirements....................................6
Article Four Meetings of the Board of Directors........................7
4.1 Regular Meetings...................................................7
4.2 Special Meetings...................................................7
4.3 Place of Meetings..................................................7
4.4 Notice of Meetings.................................................7
4.5 Ouorum ............................................................7
4.6 Vote Required for Action...........................................7
4.7 Participation by Conference Telephone..............................8
4.8 Action by Directors Without a Meeting..............................8
4.9 Adjournments.......................................................8
4.10 Waiver of Notice...................................................8
Article Five Officers..................................................8
5.1 Offices ...........................................................8
5.2 Term ..............................................................9
5.3 Compensation.......................................................9
5.4 Removal ...........................................................9
5.5 Chairman of the Board..............................................9
5.6 Chief Executive Officer............................................9
5.7 President..........................................................9
5.8 Vice Presidents...................................................10
5.9 Secretary.........................................................10
5.10 Treasurer.........................................................10
Article Six Distributions and Dividends..............................10
Article Seven ...Shares...................................................11
7.1 Share Certificates................................................11
7.2 Rights of Corporation with Respect to Registered Owners...........11
7.3 Transfers of Shares...............................................11
7.4 Duty of Corporation to Register Transfer..........................11
7.5 Lost, Stolen, or Destroyed Certificates...........................11
7.6 Fixing of Record Date.............................................12
7.7 Record Date if None Fixed.........................................12
Article Eight Indemnification..........................................12
8.1 Indemnification of Directors......................................12
8.2 Indemnification of Officers and Others............................13
8.3 Subsidiaries......................................................13
8.4 Determination.....................................................14
8.5 Advances .........................................................14
8.6 Non-Exclusivity; Continuing Benefits..............................15
8.7 Insurance.........................................................15
8.8 Notice............................................................15
8.9 Security .........................................................15
8.10 Amendment.........................................................15
8.11 Agreements........................................................16
8.12 Successors........................................................16
8.13 Additional Indemnification........................................16
Article Nine Miscellaneous............................................16
9.1 Inspection of Books and Records...................................16
9.2 Fiscal Year.......................................................16
9.3 Corporate Seal....................................................17
9.4 Annual Statements.................................................17
9.5 Notice ...........................................................17
Article Ten Amendments...............................................17
<PAGE>
BYLAWS
OF
IMMUCOR, INC.
- -------------------------------------------------------------------------------
References in these Bylaws to "Articles of Incorporation" are to the
Articles of Incorporation of Immucor, Inc., a Georgia corporation (the
"Corporation"), as amended and restated from time to time.
All of these Bylaws are subject to contrary provisions, if any, of the
Articles of Incorporation (including provisions designating the preferences,
limitations, and relative rights of any class or series of shares), the Georgia
Business Corporation Code (the "Code"), and other applicable law, as in effect
on and after the effective date of these Bylaws. References in these Bylaws to
"Sections" shall refer to sections of the Bylaws, unless otherwise indicated.
- -------------------------------------------------------------------------------
ARTICLE One ......
Office
1.1 Registered Office and Agent. The Corporation shall maintain a registered off
ice and shall have a registered agent whose business office is the same as the
registered office.
1.2 Principal Office. The principal office of the Corporation shall be at the
place designated in the Corporation's annual registration with the Georgia
Secretary of State.
1.3 Other Offices. In addition to its registered office and principal office,
the Corporation may have offices at other locations either in or outside the
State of Georgia.
ARTICLE Two ......
Shareholders' Meetings
2.1 Place of Meetings. Meetings of the Corporation's shareholders may be held at
any location inside or outside the State of Georgia designated by the Board of
Directors or any other person or persons who properly call the meeting, or if
the Board of Directors or such other person or persons do not specify a
location, at the Corporation's principal office.
2.2 Annual Meetings. The Corporation shall hold an annual meeting of
shareholders, at a time determined by the Board of Directors, to elect directors
and to transact any business that properly may come before the meeting. The
annual meeting may be combined with any other meeting of shareholders, whether
annual or special.
2.3 Special Meetings. Special meetings of shareholders of one or more classes or
series of the Corporation's shares may be called at any time by the Board of
Directors, the Chairman of the Board, or the Chief Executive Officer and shall
be called by the Corporation upon the written request (in compliance with
applicable requirements of the Code) of the holders of shares representing
twenty-five percent (25%) or more of the votes entitled to be cast on each issue
proposed to be considered at the special meeting. The business that may be
transacted at any special meeting of shareholders shall be limited to that
proposed in the notice of the special meeting given in accordance with Section
2.4 (including related or incidental matters that may be necessary or
appropriate to effectuate the proposed business).
2.4 Notice of Meetings. In accordance with Section 9.5 and subject to waiver by
a shareholder pursuant to Section 2.5, the Corporation shall give written notice
of the date, time, and place of each annual and special shareholders' meeting no
fewer than 10 days nor more than 60 days before the meeting date to each
shareholder of record entitled to vote at the meeting. The notice of an annual
meeting need not state the purpose of the meeting unless these Bylaws require
otherwise. The notice of a special meeting shall state the purpose for which the
meeting is called. If an annual or special shareholders' meeting is adjourned to
a different date, time, or location, the Corporation shall give shareholders
notice of the new date, time, or location of the adjourned meeting, unless a
quorum of shareholders was present at the meeting and information regarding the
adjournment was announced before the meeting was adjourned; provided, however,
that if a new record date is or must be fixed in accordance with Section 7.6,
the Corporation must give notice of the adjourned meeting to all shareholders of
record as of the new record date who are entitled to vote at the adjourned
meeting.
2.5 Waiver of Notice. A shareholder may waive any notice required by the Code,
the Articles of Incorporation, or these Bylaws, before or after the date and
time of the matter to which the notice relates, by delivering to the Corporation
a written waiver of notice signed by the shareholder entitled to the notice. In
addition, a shareholder's attendance at a meeting shall be (a) a waiver of
objection to lack of notice or defective notice of the meeting unless the
shareholder at the beginning of the meeting objects to holding the meeting or
transacting business at the meeting, and (b) a waiver of objection to
consideration of a particular matter at the meeting that is not within the
purpose stated in the meeting notice, unless the shareholder objects to
considering the matter when it is presented. Except as otherwise required by the
Code, neither the purpose of nor the business transacted at the meeting need be
specified in any waiver.
2.6 Voting Group; Quorum; Vote Required to Act.
a. Unless otherwise required by the Code or the Articles of Incorporation, all
classes or series of the Corporation's shares entitled to vote generally on a
matter shall for that purpose be considered a single voting group (a "Voting
Group"). If either the Articles of Incorporation or the Code requires separate
voting by two or more Voting Groups on a matter, action on that matter is taken
only when voted upon by each such Voting Group separately. At all meetings of
shareholders, any Voting Group entitled to vote on a matter may take action on
the matter only if a quorum of that Voting Group exists at the meeting, and if a
quorum exists, the Voting Group may take action on the matter notwithstanding
the absence of a quorum of any other Voting Group that may be entitled to vote
separately on the matter. Unless the Articles of Incorporation, these Bylaws, or
the Code provides otherwise, the presence (in person or by proxy) of shares
representing a majority of votes entitled to be cast on a matter by a Voting
Group shall constitute a quorum of that Voting Group with regard to that matter.
Once a share is present at any meeting other than solely to object to holding
the meeting or transacting business at the meeting, the share shall be deemed
present for quorum purposes for the remainder of the meeting and for any
adjournments of that meeting, unless a new record date for the adjourned meeting
is or must be set pursuant to Section 7.6 of these Bylaws.
b. Except as provided in Section 3.4, if a quorum exists, action on a matter by
a Voting Group is approved by that Voting Group if the votes cast within the
Voting Group favoring the action exceed the votes cast opposing the action,
unless the Articles of Incorporation, a provision of these Bylaws that has been
adopted pursuant to Section 14-2-1021 of the Code (or any successor provision),
or the Code requires a greater number of affirmative votes.
2.7 Voting of Shares. Unless otherwise required by the Code or the Articles of
Incorporation, each outstanding share of any class or series having voting
rights shall be entitled to one vote on each matter that is submitted to a vote
of shareholders.
2.8 Proxies. A shareholder entitled to vote on a matter may vote in person or by
proxy pursuant to an appointment executed in writing by the shareholder or by
his attorney-in-fact. An appointment of a proxy shall be valid for 11 months
from the date of its execution, unless a longer or shorter period is expressly
stated in the proxy.
2.9 Presiding Officer. Except as otherwise provided in this Section 2.9, the
Chairman of the Board, and in his absence or disability the Chief Executive
Officer, shall preside at every shareholders' meeting (and any adjournment
thereof) as its chairman, if either of them is present and willing to serve. If
neither the Chairman of the Board nor the Chief Executive Officer is present and
willing to serve as chairman of the meeting, and if the Chairman of the Board
has not designated another person who is present and willing to serve, then a
majority of the Corporation's directors present at the meeting shall be entitled
to designate a person to serve as chairman. If no director of the Corporation is
present at the meeting or if a majority of the directors who are present cannot
be established, then a chairman of the meeting shall be selected by a majority
vote of (a) the shares present at the meeting that would be entitled to vote in
an election of directors, or (b) if no such shares are present at the meeting,
then the shares present at the meeting comprising the Voting Group with the
largest number of shares present at the meeting and entitled to vote on a matter
properly proposed to be considered at the meeting. The chairman of the meeting
may designate other persons to assist with the meeting.
2.10 Adjournments. At any meeting of shareholders (including an adjourned
meeting), a majority of shares of any Voting Group present and entitled to vote
at the meeting (whether or not those shares constitute a quorum) may adjourn the
meeting, but only with respect to that Voting Group, to reconvene at a specific
time and place. If more than one Voting Group is present and entitled to vote on
a matter at the meeting, then the meeting may be continued with respect to any
such Voting Group that does not vote to adjourn as provided above, and such
Voting Group may proceed to vote on any matter to which it is otherwise entitled
to do so; provided, however, that if (a) more than one Voting Group is required
to take action on a matter at the meeting and (b) any one of those Voting Groups
votes to adjourn the meeting (in accordance with the preceding sentence), then
the action shall not be deemed to have been taken until the requisite vote of
any adjourned Voting Group is obtained at its reconvened meeting. The only
business that may be transacted at any reconvened meeting is business that could
have been transacted at the meeting that was adjourned, unless further notice of
the adjourned meeting has been given in compliance with the requirements for a
special meeting that specifies the additional purpose or purposes for which the
meeting is called. Nothing contained in this Section 2.10 shall be deemed or
otherwise .construed to limit any lawful authority of the chairman of a meeting
to adjourn the meeting.
2.11 Conduct of the Meeting. At any meeting of shareholders, the chairman of the
meeting shall be entitled to establish the rules of order governing the conduct
of business at the meeting.
2.12 Action of Shareholders Without a Meeting. Action required or permitted to
be taken at a meeting of shareholders may be taken without a meeting if the
action is taken by all shareholders entitled to vote on the action or, if
permitted by the Articles of Incorporation, by persons who would be entitled to
vote at a meeting shares having voting power to cast the requisite number of
votes (or numbers, in the case of voting by groups) that would be necessary to
authorize or take the action at a meeting at which all shareholders entitled to
vote were present and voted. The action must be evidenced by one or more written
consents describing the action taken, signed by shareholders entitled to take
action without a meeting, and delivered to the Corporation for inclusion in the
minutes or filing with the corporate records. Where required by Section 14-2-704
or other applicable provision of the Code, the Corporation shall provide
shareholders with written notice of actions taken without a meeting.
2.13.....Matters Considered at Annual Meetings. Notwithstanding
anything to the contrary in these Bylaws, the only business that may be
conducted at an annual meeting of shareholders shall be business brought before
the meeting (a) by or at the direction of the Board of Directors prior to the
meeting, (b) by or at the direction of the Chairman of the Board or the Chief
Executive Officer, or (c) by a shareholder of the Corporation who is entitled to
vote with respect to the business and who complies with the notice procedures
set forth in this Section 2.13. For business to be brought properly before an
annual meeting by a shareholder, the shareholder must have given timely notice
of the business in writing to the Secretary of the Corporation. To be timely, a
shareholder's notice must be delivered or mailed to and received at the
principal offices of the Corporation not later than 60 days before the date that
corresponds to the month and day of the prior year on which the Corporation
first mailed its proxy materials for the prior year's annual meeting of
shareholders. A shareholder's notice to the Secretary shall set forth a brief
description of each matter of business the shareholder proposes to bring before
the meeting and the reasons for conducting that business at the meeting; the
name, as it appears on the Corporation's books, and address of the shareholder
proposing the business; the series or class and number of shares of the
Corporation's capital stock that are beneficially owned by the shareholder; and
any material interest of the shareholder in the proposed business. The chairman
of the meeting shall have the discretion. to declare to the meeting that any
business proposed by a shareholder to be considered at the meeting is out of
order and that such business shall not be transacted at the meeting if (i) the
chairman concludes that the matter has been proposed in a manner inconsistent
with this Section 2.13 or (ii) the chairman concludes that the subject matter of
the proposed business is inappropriate for consideration by the shareholders at
the meeting.
ARTICLE Three ....
Board of Directors
3.1 General Powers. All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the Corporation shall be managed
by, the Board of Directors, subject to any limitation set forth in the Articles
of Incorporation, in bylaws approved by the shareholders, or in agreements among
all the shareholders that are otherwise lawful.
3.2 Number, Election and Term of Office. The number of directors of the
Corporation shall be fixed by resolution of the Board of Directors from time to
time and, until otherwise so fixed, shall be eight (8), and in no event shall be
more than thirteen (13); provided, however, that no decrease in the number of
directors shall have the effect of shortening the term of an incumbent director.
Except as provided elsewhere in this Section 3.2 and in Section 3.4, the
directors whose terms expire in accordance with Article Ninth of the Articles of
Incorporation shall be elected at each annual meeting of shareholders, or at a
special meeting of shareholders called for purposes that include the election of
directors, by a plurality of the votes cast by the shares entitled to vote and
present at the meeting. Despite the expiration of a director's term, he shall
continue to serve until his successor, if there is to be any, has been elected
and has qualified.
3.3 Removal of Directors. Subject to the rights, if any, of the holders of
Preferred Stock then outstanding, any or all of the directors of the Corporation
may be removed from office at any time, but only for cause, provided that
directors elected by a particular Voting Group may be removed only by the
shareholders in that Voting Group. Removal action may be taken only at a
shareholders' meeting for which notice of the removal action has been given. A
removed director's successor, if any, may be elected at the same meeting to
serve the unexpired term.
3.4 Vacancies. A vacancy occurring in the Board of Directors may be filled for
the unexpired term, unless the shareholders have elected a successor, by the
affirmative vote of a majority of the remaining directors, whether or not the
remaining directors constitute a quorum; provided, however, that if the vacant
office was held by a director elected by a particular Voting Group, only the
holders of shares of that Voting Group or the remaining directors elected by
that Voting Group shall be entitled to fill the vacancy; provided further,
however, that if the vacant office was held by a director elected by a
particular Voting Group and there is no remaining director elected by that
Voting Group, the other remaining directors or director (elected by another
Voting Group or Groups) may fill the vacancy during an interim period before the
shareholders of the vacated director's Voting Group act to fill the vacancy. A
vacancy or vacancies in the Board of Directors may result from the death,
resignation, disqualification, or removal of any director, or from an increase
in the number of directors.
3.5 Compensation. Directors may receive such compensation for their services as
directors as may be fixed by the Board of Directors from time to time. A
director may also serve the Corporation in one or more capacities other than
that of director and receive compensation for services rendered in those other
capacities.
3.6 Committees of the Board of Directors. The Board of Directors may designate
from among its members an executive committee or one or more other standing or
ad hoc committees, each consisting of one or more directors, who serve at the
pleasure of the Board of Directors. Subject to the limitations imposed by the
Code, each committee shall have the authority set forth in the resolution
establishing the committee or in any other resolution of the Board of Directors
specifying, enlarging, or limiting the authority of the committee.
3.7 Qualification of Directors. No person elected to serve as a director of the
Corporation shall assume office and begin serving unless and until duly
qualified to serve, as determined by reference to the Code, the Articles of
Incorporation, and any further eligibility requirements established in these
Bylaws.
3.8 Certain Nomination Requirements. No person may be nominated for
election as a director at any annual or special meeting of shareholders unless
(a) the nomination has been or is being made pursuant to a recommendation or
approval of the Board of Directors of the Corporation or a properly constituted
committee of the Board of Directors previously delegated authority to recommend
or approve nominees for director; (b) the person is nominated by a shareholder
of the Corporation who is entitled to vote for the election of the nominee at
the subject meeting, and the nominating shareholder has furnished written notice
to the Secretary of the Corporation, at the Corporation's principal office, not
later than 60 days before the date that corresponds to the month and day of the
prior year on which the Corporation first mailed its proxy materials for the
prior year's annual meeting of shareholders, and the notice (i) sets forth with
respect to the person to be nominated his or her name, age, business and
residence addresses, principal business or occupation during the past five
years, any affiliation with or material interest in the Corporation or any
transaction involving the Corporation, and any affiliation with or material
interest in any person or entity having an interest materially adverse to the
Corporation, and (ii) is accompanied by the sworn or certified statement of the
shareholder that the nominee has consented to being nominated and that the
shareholder believes the nominee will stand for election and will serve if
elected; or (c) (i) the person is nominated to replace a person previously
identified as a proposed nominee (in accordance with the provisions of subpart
(b) of this Section 3.8) who has since become unable or unwilling to be
nominated or to serve if elected, (ii) the shareholder who furnished such
previous identification makes the replacement nomination and delivers to the
Secretary of the Corporation (at the time of or prior to making the replacement
nomination) an affidavit or other sworn statement affirming that the shareholder
had no reason to believe the original nominee would be so unable or unwilling,
and (iii) such shareholder also furnishes in writing to the Secretary of the
Corporation (at the time of or prior to making the replacement nomination) the
same type of information about the replacement nominee as required by subpart
(b) of this Section 3.8 to have been furnished about the original nominee. The
chairman of any meeting of shareholders at which one or more directors are to be
elected, for good cause shown and with proper regard for the orderly conduct of
business at the meeting, may waive in whole or in part the operation of this
Section 3.8.
ARTICLE Four .....
Meetings of the Board of Directors
4.1 Regular Meetings. A regular meeting of the Board of Directors shall be held
in conjunction with each annual meeting of shareholders. In addition, the Board
of Directors may, by prior resolution, hold regular meetings at other times.
4.2 Special Meetings. Special meetings of the Board of Directors may be called
by or at the request of the Chairman of the Board, the Chief Executive Officer,
or any two directors in office at that time.
4.3 Place of Meetings. Directors may hold their meetings at any place in or
outside the State of Georgia that the Board of Directors may establish from time
to time.
4.4 Notice of Meetings. Directors need not be provided with notice of any
regular meeting of the Board of Directors. Unless waived in accordance with
Section 4.10, the Corporation shall give at least two days' notice to each
director of the date, time, and place of each special meeting. Notice of a
meeting shall be deemed to have been given to any director in attendance at any
prior meeting at which the date, time, and place of the subsequent meeting was
announced.
4.5 Quorum. At meetings of the Board of Directors, a majority of the directors
then in office shall constitute a quorum for the transaction of business.
4.6 Vote Required for Action. If a quorum is present when a vote is taken, the
vote of a majority of the directors present at the time of the vote will be the
act of the Board of Directors, unless the vote of a greater number is required
by the Code, the Articles of Incorporation, or these Bylaws. A director who is
present at a meeting of the Board of Directors when corporate action is taken is
deemed to have assented to the action taken unless (a) he objects at the
beginning of the meeting (or promptly upon his arrival) to holding the meeting
or transacting business at it; (b) his dissent or abstention from the action
taken is entered in the minutes of the meeting; or (c) he delivers written
notice of his dissent or abstention to the presiding officer of the meeting
before its adjournment or to the Corporation immediately after adjournment of
the meeting. The right of dissent or abstention is not available to a director
who votes in favor of the action taken.
4.7 Participation by Conference Telephone. Members of the Board of Directors may
participate in a meeting of the Board by means of conference telephone or
similar communications equipment through which all persons participating may
hear and speak to each other. Participation in a meeting pursuant to this
Section 4.7 shall constitute presence in person at the meeting.
4.8 Action by Directors Without a Meeting. Any action required or permitted to
be taken at any meeting of the Board of Directors may be taken without a meeting
if a written consent, describing the action taken, is signed by each director
and delivered to the Corporation for inclusion in the minutes or filing with the
corporate records. The consent may be executed in counterparts, and shall have
the same force and effect as a unanimous vote of the Board of Directors at a
duly convened meeting.
4.9 Adjournments. A meeting of the Board of Directors, whether or not a quorum
is present, may be adjourned by a majority of the directors present to reconvene
at a specific time and place. It shall not be necessary to give notice to the
directors of the reconvened meeting or of the business to be transacted, other
than by announcement at the meeting that was adjourned, unless a quorum was not
present at the meeting that was adjourned, in which case notice shall be given
to directors in the same manner as for a special meeting. At any such reconvened
meeting at which a quorum is present, any business may be transacted that could
have been transacted at the meeting that was adjourned.
4.10 Waiver of Notice. A director may waive any notice required by the Code, the
Articles of Incorporation, or these Bylaws before or after the date and time of
the matter to which the notice relates, by a written waiver signed by the
director and delivered to the Corporation for inclusion in the minutes or filing
with the corporate records. Attendance by a director at a meeting shall
constitute waiver of notice of the meeting except where a director at the
beginning of the meeting (or promptly upon his arrival) objects to holding the
meeting or to transacting business at the meeting and does not thereafter vote
for or assent to action taken at the meeting.
ARTICLE Five .....
Officers
5.1 Offices. The officers of the Corporation shall consist of a President, a
Secretary, and a Treasurer, and may include a Chief Executive Officer separate
from the President, each of whom shall be elected or appointed by the Board of
Directors. The Board of Directors may also elect a Chairman of the Board from
among its members. The Board of Directors from time to time may, or may
authorize the Chief Executive Officer to, create and establish the duties of
other offices and may, or may authorize the Chief Executive Officer to, elect or
appoint, or authorize specific senior officers to appoint, the persons who shall
hold such other offices, including one or more Vice Presidents (including
Executive Vice Presidents, Senior Vice Presidents, Assistant Vice Presidents,
and the like), one or more Assistant Secretaries, and one or more Assistant
Treasurers. Whether or not so provided by the Board of Directors, the Chairman
of the Board or the Chief Executive Officer may appoint one or more Assistant
Secretaries and one or more Assistant Treasurers. Any two or more offices may be
held by the same person.
5.2 Term. Each officer shall serve at the pleasure of the Board of Directors
(or, if appointed by the Chief Executive Officer or a senior officer pursuant to
this Article Five, at the pleasure of the Board of Directors, the Chief
Executive Officer, or the senior officer authorized to have appointed the
officer) until his death, resignation, or removal, or until his replacement is
elected or appointed in accordance with this Article Five.
5.3 Compensation. The compensation of all officers of the Corporation shall be
fixed by the Board of Directors or by a committee or officer appointed by the
Board of Directors. Officers may serve without compensation.
5.4 Removal. All officers (regardless of how elected or appointed) may be
removed, with or without cause, by the Board of Directors, and any officer
appointed by the Chief Executive Officer or another senior officer may also be
removed, with or without cause, by the Chief Executive Officer or by any senior
officer authorized to have appointed the officer to be removed. Removal will be
without prejudice to the contract rights, if any, of the person removed, but
shall be effective notwithstanding any damage claim that may result from
infringement of such contract rights.
5.5 Chairman of the Board. The Chairman of the Board (if there be one) shall
preside at and serve as chairman of meetings of the shareholders and of the
Board of Directors (unless another person is selected under Section 2.9 to act
as chairman). The Chairman of the Board shall perform other duties and have
other authority as may from time to time be delegated by the Board of Directors.
5.6 Chief Executive Officer. The Chief Executive Officer (if there be one) shall
be charged with the general and active management of the Corporation, shall see
that all orders and resolutions of the Board of Directors are carried into
effect, shall have the authority to select and appoint employees and agents of
the Corporation, and shall, in the absence or disability of the Chairman of the
Board, perform the duties and exercise the powers of the Chairman of the Board.
The Chief Executive Officer shall perform any other duties and have any other
authority as may be delegated from time to time by the Board of Directors, and
shall be subject to the limitations fixed from time to time by the Board of
Directors.
5.7 President. If there shall be no separate Chief Executive officer of the
Corporation, then the President shall be the chief executive officer of the
Corporation and shall have all the duties and authority given under these Bylaws
to the Chief Executive Officer. The President shall otherwise be the chief
operating officer of the Corporation and shall, subject to the authority of the
Chief Executive Officer, have responsibility for the conduct and general
supervision of the business operations of the Corporation. The President shall
perform such other duties and have such other authority as may from time to time
be delegated by the Board of Directors or the Chief Executive Officer. In the
absence or disability of the Chief Executive Officer, the President shall
perform the duties and exercise the powers of the Chief Executive Officer.
5.8 Vice Presidents. The Vice President (if there be one) shall, in the absence
or disability of the President, perform the duties and exercise the powers of
the President, whether the duties and powers are specified in these Bylaws or
otherwise. If the Corporation has more than one Vice President, the one
designated by the Board of Directors or the Chief Executive Officer (in that
order of precedence) shall act in the event of the absence or disability of the
President. Vice Presidents shall perform any other duties and have any other
authority as from time to time may be delegated by the Board of Directors, the
Chief Executive Officer, or the President.
5.9 Secretary. The Secretary shall be responsible for preparing minutes of the
meetings of shareholders, directors, and committees of directors and for
authenticating records of the Corporation. The Secretary or any Assistant
Secretary shall have authority to give all notices required by law or these
Bylaws. The Secretary shall be responsible for the custody of the corporate
books, records, contracts, and other documents. The Secretary or any Assistant
Secretary may affix the corporate seal to any lawfully executed documents
requiring it, may attest to the signature of any officer of the Corporation, and
shall sign any instrument that requires the Secretary's signature. The Secretary
or any Assistant Secretary shall perform any other duties and have any other
authority as from time to time may be delegated by the Board of Directors, the
Chief Executive Officer, or the President.
5.10 Treasurer. Unless otherwise provided by the Board of Directors, the
Treasurer shall be responsible for the custody of all funds and securities
belonging to the Corporation and for the receipt, deposit, or disbursement of
these funds and securities under the direction of the Board of Directors. The
Treasurer shall cause full and true accounts of all receipts and disbursements
to be maintained and shall make reports of these receipts and disbursements to
the Board of Directors, the Chief Executive Officer and President upon request.
The Treasurer or Assistant Treasurer shall perform any other duties and have any
other authority as from time to time may be delegated by the Board of Directors,
the Chief Executive Officer, or the President.
ARTICLE Six ......
Distributions and Dividends
Unless the Articles of Incorporation provide otherwise, the Board of
Directors, from time to time in its discretion, may authorize or declare
distributions or share dividends in accordance with the Code.
ARTICLE Seven ....
Shares
7.1 Share Certificates. The interest of each shareholder in the Corporation
shall be evidenced by a certificate or certificates representing shares of the
Corporation, which shall be in such form as the Board of Directors from time to
time may adopt in accordance with the Code. Share certificates shall be in
registered form and shall indicate the date of issue, the name of the
Corporation, that the Corporation is organized under the laws of the State of
Georgia, the name of the shareholder, and the number and class of shares and
designation of the series, if any, represented by the certificate. Each
certificate shall be signed by the President or a Vice President (or in lieu
thereof, by the Chairman of the Board or Chief Executive Officer, if there be
one) and may be signed by the Secretary or an Assistant Secretary; provided,
however, that where the certificate is signed (either manually or by facsimile)
by a transfer agent, or registered by a registrar, the signatures of those
officers may be facsimiles.
7.2 Rights of Corporation with Respect to Registered Owners. Prior to due
presentation for transfer of registration of its shares, the Corporation may
treat the registered owner of the shares (or the beneficial owner of the shares
to the extent of any rights granted by a nominee certificate on file with the
Corporation pursuant to any procedure that may be established by the Corporation
in accordance with the Code) as the person exclusively entitled to vote the
shares, to receive any dividend or other distribution with respect to the
shares, and for all other purposes; and the Corporation shall not be bound to
recognize any equitable or other claim to or interest in the shares on the part
of any other person, whether or not it has express or other notice of such a
claim or interest, except as otherwise provided by law.
7.3 Transfers of Shares. Transfers of shares shall be made upon the books of the
Corporation kept by the Corporation or by the transfer agent designated to
transfer the shares, only upon direction of the person named in the certificate
or by an attorney lawfully constituted in writing. Before a new certificate is
issued, the old certificate shall be surrendered for cancellation or, in the
case of a certificate alleged to have been lost, stolen, or destroyed, the
provisions of Section 7.5 of these Bylaws shall have been complied with.
7.4 Duty of Corporation to Register Transfer. Notwithstanding any of the
provisions of Section 7.3 of these Bylaws, the Corporation is under a duty to
register the transfer of its shares only if: (a) the share certificate is
endorsed by the appropriate person or persons; (b) reasonable assurance is given
that each required endorsement is genuine and effective; (c) the Corporation has
no duty to inquire into adverse claims or has discharged any such duty; (d) any
applicable law relating to the collection of taxes has been complied with; (e)
the transfer is in fact rightful or is to a bona fide purchaser; and (f) the
transfer is in compliance with applicable provisions of any transfer
restrictions of which the Corporation shall have notice.
7.5 Lost, Stolen, or Destroyed Certificates. Any person claiming a share
certificate to be lost, stolen, or destroyed shall make an affidavit or
affirmation of this claim in such a manner as the Corporation may require and
shall, if the Corporation requires, give the Corporation a bond of indemnity in
form and amount, and with one or more sureties satisfactory to the Corporation,
as the Corporation may require, whereupon an appropriate new certificate may be
issued in lieu of the one alleged to have been lost, stolen or destroyed.
7.6 Fixing of Record Date. For the purpose of determining shareholders (a)
entitled to notice of or to vote at any meeting of shareholders or, if
necessary, any adjournment thereof, (b) entitled to receive payment of any
distribution or dividend, or (c) for any other proper purpose, the Board of
Directors may fix in advance a date as the record date. The record date may not
be more than 70 days (and, in the case of a notice to shareholders of a
shareholders' meeting, not less than 10 days) prior to the date on which the
particular action, requiring the determination of shareholders, is to be taken.
A separate record date may be established for each Voting Group entitled to vote
separately on a matter at a meeting. A determination of shareholders of record
entitled to notice of or to vote at a meeting of shareholders shall apply to any
adjournment of the meeting, unless the Board of Directors shall fix a new record
date for the reconvened 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.
7.7 Record Date if None Fixed. If no record date is fixed as provided in Section
7.6, then the record date for any determination of shareholders that may be
proper or required by law shall be, as appropriate, the date on which notice of
a shareholders' meeting is mailed, the date on which the Board of Directors
adopts a resolution declaring a dividend or authorizing a distribution, or the
date on which any other action is taken that requires a determination of
shareholders.
ARTICLE Eight ....
Indemnification
8.1 Indemnification of Directors. The Corporation shall indemnify and hold
harmless any person (an "Indemnified Person") who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative
(including any action or suit by or in the right of the corporation) by reason
of the fact that he is or was a director of the corporation, against expenses
(including, but not limited to, attorney's fees and disbursements, court costs
and expert witness fees), and against any judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding; provided, that no indemnification shall be made in
respect of (a) expenses, judgments, fines and amounts paid in settlement
attributable to (i) any appropriation, in violation of such person's duty to the
corporation, of any business opportunity of the corporation, (ii) acts or
omissions not in good faith or which involved intentional misconduct or a
knowing violation of law, (iii) liability under Section 14-2-832 of the Georgia
Business Corporation Code, and (iv) any transaction from which such person
derived an improper personal benefit, or (b) any other judgments, fines and
amounts paid in settlement to the extent that such amounts do not exceed
liability limits, if any, set forth in the corporation's articles of
incorporation.
8.2 Indemnification of Officers and Others.
a. The Board of Directors shall have the power to cause the Corporation
to provide to officers, employees, and agents of the Corporation all or any part
of the right to indemnification and other rights of the type provided under
Sections 8.1, 8.5, and 8.11 of this Article Eight (subject to the conditions,
limitations, and obligations specified therein, but not subject however to the
limitation imposed under clause (b) of Section 8.1 of this Article Eight), upon
a resolution to that effect identifying officers, employees, or agents (by
position or name) and specifying the particular rights provided, which may be
different for each of the officers, employees and agents identified. Each
officer, employee, or agent of the Corporation so identified shall be an
"Indemnified Person" for purposes of the provisions of this Article Eight.
b. The Corporation shall indemnify and hold harmless each officer
identified as an executive officers in the Corporation's reports and filings
with the United States Securities and Exchange Commission (an "Executive
Officer") who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (including any action or suit by or
in the right of the corporation) by reason of the fact that he is or was an
officer or agent of the corporation, against expenses (including, but not
limited to, attorney's fees and disbursements, court costs and expert witness
fees), and against any judgments, fines, and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding; provided, that no indemnification shall be made in respect of
expenses, judgments, fines and amounts paid in settlement attributable to (i)
any appropriation, in violation of such person's duty to the corporation, of any
business opportunity of the corporation, (ii) acts or omissions not in good
faith or which involved intentional misconduct or a knowing violation of law,
(iii) liability under Section 14-2-832 of the Georgia Business Corporation Code,
and (iv) any transaction from which such person derived an improper personal
benefit. Each Executive Officer shall be an "Indemnified Person" for purposes of
the provisions of this Article Eight.
8.3 Subsidiaries. The Board of Directors shall have the power to cause the
Corporation to provide to any director, officer, employee, or agent of the
Corporation who also is a director, officer, trustee, general partner, employee,
or agent of a Subsidiary (as defined below), all or any part of the right to
indemnification and other rights of the type provided under Sections 8.1, 8.2,
8.5, and 8.11 of this Article Eight (subject to the conditions, limitations, and
obligations specified therein with regard to amounts actually and reasonably
incurred by such person by reason of the fact that he is or was a director,
officer, trustee, general partner, employee or agent of the Subsidiary. The
Board of Directors shall exercise such power, if at all, through a resolution
identifying the person or persons to be indemnified (by position or name) and
the Subsidiary (by name or other classification), and specifying the particular
rights provided, which may be different for each of the directors, officers,
employees and agents identified. Each person so identified shall be an
"Indemnified Person" for purposes of the provisions of this Article Nine. As
used in this Article Nine, "Subsidiary" shall mean (i) another corporation,
joint venture, trust, partnership or unincorporated business association more
than twenty percent (20%) of the voting capital stock or other voting equity
interest of which was, at or after the time the circumstances giving rise to
such action, suit or proceeding arose, owned, directly or indirectly, by the
corporation, or (ii) a nonprofit corporation which receives its principal
financial support from the corporation or its subsidiaries.
8.4 Determination. Notwithstanding any judgment, order, settlement, conviction,
or plea in any action, suit or proceeding of the kind referred to in Section 8.1
of this Article Eight, an Indemnified Person shall be entitled to
indemnification as provided in such Section 8.1 unless a determination that such
Indemnified Person is not entitled to such indemnification (because of the
applicability of clause (a) or (b) of such Section 8.1) shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who
are not seeking the benefits of such indemnification; or (ii) if such quorum is
not obtainable, or, even if obtainable if a quorum of such disinterested
directors so directs, in a written opinion by independent legal counsel (which
counsel may be the outside legal counsel regularly employed or retained by the
corporation); or (iii) if a quorum cannot be obtained under (i) above and in the
absence of a written opinion by independent legal counsel by majority vote or
consent of a committee duly designated by the Board of Directors (in which
designation interested directors may participate), consisting solely of one or
more directors who are not seeking the benefit of such indemnification.
Provided, however, that notwithstanding any determination pursuant to the
preceding sentence, if such determination shall have been made at a time that
the members of the Board of Directors, so serving when the events upon which
such Indemnified Person's liability has been based occurred, no longer
constitute a majority of the members of the Board of Directors, then such
Indemnified Person shall nonetheless be entitled to indemnification as set forth
in such Section 8.1 unless the Company shall carry the burden of proving, in an
action before any court of competent jurisdiction, that such Indemnified Person
is not entitled to indemnification because of the applicability of clause (a) or
(b) of such Section 8.1.
8.5 Advances. Expenses (including, but not limited to, attorneys' fees and
disbursements, court costs, and expert witness fees) incurred by the Indemnified
Person in defending any action, suit or proceeding of the kind described in
Section 8.1 or 8.2 hereof shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding only upon: (i) the
Indemnified Person delivering the affirmation and the undertaking described in
subparagraph (c) of Section 856 of the Code (whether or not such Indemnified
Person is a director), and (ii) the Board of Directors shall not have made a
determination, (any such determination to be made in the manner described in
Section 8.4 of these Bylaws), that the person seeking indemnification is not
entitled to indemnification because such person's conduct constitutes behavior
of the type described in either clauses (a) or (b) of Section 8.1 of these
Bylaws or clauses (i), (ii), (iii) or (iv) of Section 8.2(b) of these Bylaws.
The Corporation may make the advances contemplated by this Section 8.5
regardless of the Indemnified Person's financial ability to make repayment.
Advances and undertakings to repay pursuant to this Section 8.5 shall be on such
terms and conditions as the Board of Directors shall determine from time to
time, and may be unsecured and interest-free.
8.6 Non-Exclusivity; Continuing Benefits. The indemnification and advancement of
expenses provided by this Article Eight shall not be deemed exclusive of any
other rights to which a person seeking indemnification or advancement of
expenses may be entitled under any provision of the Articles of Incorporation,
or any Bylaw, resolution, agreement, vote of shareholders or disinterested
directors or otherwise, both as to actions in his official capacity and as to
actions 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, as the case may be, and shall inure to the benefit of the heirs,
executors and administrators of such a person.
8.7 Insurance. The Corporation shall have the power 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, trustee, general partner, employee, or agent
of another corporation, nonprofit corporation, joint venture, trust,
partnership, unincorporated business association or other enterprise, against
any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions of this
Article Eight.
8.8 Notice. If any expenses or other amounts are paid by way of indemnification,
otherwise than by court order or action by the shareholders or by an insurance
carrier pursuant to insurance maintained by the corporation, the corporation
shall, not later than the next annual meeting of shareholders, unless such
meeting is held within three (3) months from the date of such payment, and in
any event, within fifteen (15) months from the date of such payment, send by
first class mail to its shareholders of record at the time entitled to vote for
the election of directors a statement specifying the persons paid, the amount
paid and the nature and status at the time of such payment of the litigation or
threatened litigation.
8.9 Security. The Corporation may designate certain of its assets as collateral,
provide self-insurance or otherwise secure its obligations under this Article
Eight, or under any indemnification agreement or plan of indemnification adopted
and entered into in accordance with the provisions of this Article Eight, as the
Board of Directors deems appropriate.
8.10 Amendment. Any amendment to this Article Eight that limits or otherwise
adversely affects the right of indemnification, advancement of expenses, or
other rights of any Indemnified Person hereunder shall, as to such Indemnified
Person, apply only to claims, actions, or proceedings based on actions, events,
or omissions (collectively, "Post Amendment Events") occurring after such
amendment and after delivery of notice of such amendment to the Indemnified
Person so affected. Any Indemnified Person shall, as to any claim, action, suit
or proceeding based on actions, events, or omissions occurring prior to the date
of receipt of such notice, be entitled to the right of indemnification,
advancement of expenses, and other rights under this Article Eight to the same
extent as had such provisions continued as part of the Bylaws of the Corporation
without such amendment. This Section 8.10 cannot be altered, amended, or
repealed in a manner effective as to any Indemnified Person (except as to Post
Amendment Events) without the prior written consent of such Indemnified Person.
The Board of Directors may not alter, amend or repeal any provision of this
Article Eight in a manner that extends or enlarges the right of any person to
indemnification or advancement of expenses hereunder, except with the approval
of the holders of a majority of all the shares of capital stock of the
corporation entitled to vote thereon at a meeting called for such purpose.
8.11 Agreements. The provisions of this Article Eight shall be deemed to
constitute an agreement between the Corporation and each Person entitled to
indemnification hereunder. In addition to the rights provided in this Article
Eight, the Corporation shall have the power, upon authorization by the Board of
Directors, to enter into an agreement or agreements providing to any person who
is or was a director, officer, employee or agent of the Corporation
indemnification rights substantially similar to those provided in this Article
Eight.
8.12 Successors. For purposes of this Article Eight, the terms "Corporation" or
"this Corporation" shall include any corporation, joint venture, trust,
partnership, or unincorporated business association which is the successor to
all or substantially all of the business or assets of this Corporation, as a
result of merger, consolidation, sale, liquidation, or otherwise, and any such
successor shall be liable to the persons indemnified under this Article Eight on
the same terms and conditions and to the same extent as this Corporation.
8.13 Additional Indemnification. In addition to the specific indemnification
rights set forth herein, the Corporation shall indemnify each of its directors
and officers to the full extent permitted by action of the Board of Directors
without shareholder approval under the Code or other laws of the State of
Georgia as in effect from time to time.
ARTICLE Nine .....
Miscellaneous
9.1 Inspection of Books and Records. The Board of Directors shall have the power
to determine which accounts, books, and records of the Corporation shall be
available for shareholders to inspect or copy, except for those books and
records required by the Code to be made available upon compliance by a
shareholder with applicable requirements, and shall have the power to fix
reasonable rules and regulations (including confidentiality restrictions and
procedures) not in conflict with applicable law for the inspection and copying
of accounts, books, and records that by law or by determination of the Board of
Directors are made available. Unless required by the Code or otherwise provided
by the Board of Directors, a shareholder of the Corporation holding less than
two percent (2%) of the total shares of the Corporation then outstanding shall
have no right to inspect the books and records of the Corporation.
9.2 Fiscal Year. The Board of Directors is authorized to fix the fiscal year of
the Corporation and to change the fiscal year from time to time as it deems
appropriate.
9.3 Corporate Seal. The corporate seal will be in such form as the Board of
Directors may from time to time determine. The Board of Directors may authorize
the use of one or more facsimile forms of the corporate seal. The corporate seal
need not be used unless its use is required by law, by these Bylaws, or by the
Articles of Incorporation.
9.4 Annual Statements. Not later than four months after the close of each fiscal
year, and in any case prior to the next annual meeting of shareholders, the
Corporation shall prepare (a) a balance sheet showing in reasonable detail the
financial condition of the Corporation as of the close of its fiscal year, and
(b) a profit and loss statement showing the results of its operations during its
fiscal year. Upon receipt of written request, the Corporation promptly shall
mail to any shareholder of record a copy of the most recent such balance sheet
and profit and loss statement, in such form and with such information as the
Code may require.
9.5 Notice.
a. Whenever these Bylaws require notice to be given to any shareholder or to any
director, the notice may be given by mail, in person, by courier delivery, by
telephone, or by telecopier, telegraph, or similar electronic means. Whenever
notice is given to a shareholder or director by mail, the notice shall be sent
by depositing the notice in a post office or letter box in a postage-prepaid,
sealed envelope addressed to the shareholder or director at his or her address
as it appears on the books of the Corporation. Any such written notice given by
mail shall be effective: (i) if given to shareholders, at the time the same is
deposited in the United States mail; and (ii) in all other cases, at the
earliest of (x) when received or when delivered, properly addressed, to the
addressee's last known principal place of business or residence, (y) five days
after its deposit in the mail, as evidenced by the postmark, if mailed with
first-class postage prepaid and correctly addressed, or (z) on the date shown on
the return receipt, if sent by registered or certified mail, return receipt
requested, and the receipt is signed by or on behalf of the addressee. Whenever
notice is given to a shareholder or director by any means other than mail, the
notice shall be deemed given when received.
b. In calculating time periods for notice, when a period of time measured in
days, weeks, months, years, or other, measurement of time is prescribed for the
exercise of any privilege or the discharge of any duty, the first day shall not
be counted but the last day shall be counted.
ARTICLE Ten ......
Amendments
Except as otherwise provided under the Code or in Article 8 hereof, the
Board of Directors shall have the power to alter, amend, or repeal these Bylaws
or adopt new Bylaws. Any Bylaws adopted by the Board of Directors may be
altered, amended, or repealed, and new Bylaws adopted, by the shareholders. The
shareholders may prescribe in adopting any Bylaw or Bylaws that the Bylaw or
Bylaws so adopted shall not be altered, amended, or repealed by the Board of
Directors.
EXHIBIT 5.1
LAW OFFICES
Nelson Mullins Riley & Scarborough, L.L.P.
A REGISTERED LIMITED LIABILITY PARTNERSHIP
999 PEACHTREE STREET, N.E. OTHER OFFICES:
FIRST UNION PLAZA Charleston, South Carolina
SUITE 1400 Charlotte, North Carolina
Atlanta, Georgia 30309 Columbia, South Carolina
TELEPHONE (404) 817-6000 Greenville, South Carolina
FACSIMILE (404) 817-6050 Myrtle Beach, South Carolina
www.nmrs.com
May 19, 1999
Immucor, Inc.
3130 Gateway Drive
Norcross, Georgia 30091
Ladies and Gentlemen:
We have acted as counsel to Immucor, Inc. (the "Company") in connection
with the filing of a Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, covering the offering of up to
628,417 shares (the "Shares") of the Company's common stock, no par value per
share by the selling shareholders named in the Registration Statement. The
selling shareholders may acquire the Shares upon the exercise of warrants that
the Company issued to them in connection with the acquisition by the Company of
Dominion Biologicals, Ltd. (the "Warrants"). In connection therewith, we have
examined such corporate records, certificates of public officials and other
documents and records as we have considered necessary or proper for the purpose
of this opinion.
This opinion is limited by and is in accordance with, the January 1,
1992, edition of the Interpretive Standards applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia, which is
incorporated herein by reference.
Based on the foregoing, and having regard to legal considerations which
we deem relevant, we are of the opinion that the issuance of the Shares has been
duly authorized, and the Shares, when issued and delivered upon the exercise of
the Warrants, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus contained in the Registration Statement.
Very truly yours,
NELSON MULLINS RILEY & SCARBOROUGH, L.L.P.
By: /s/ Philip H. Moise
Philip H. Moise
Partner
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Immucor, Inc. for
the registration of 628,417 shares of its common stock and to the incorporation
by reference therein of our report dated July 13, 1998, except for the last two
sentences of the fourth paragraph of Note 5 as to which the date is July 31,
1998, with respect to the consolidated financial statements and schedule of
Immucor, Inc. included in its Annual Report (Form 10-K) for the year ended May
31, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Atlanta, GA
May 18, 1999
