BYLAWS
OF
IMMUCOR, INC.
Amended and Restated as of November 29, 2000
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iii
BYLAWS
OF
IMMUCOR, INC.
TABLE OF CONTENTS
Page
Article I Office.....................................................1
1.1 Registered Office and Agent.........................................1
1.2 Principal Office....................................................1
1.3 Other Offices.......................................................1
Article II 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 III 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 IV 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...............................7
4.8 Action by Directors Without a Meeting...............................8
4.9 Adjournments........................................................8
4.10 Waiver of Notice....................................................8
Article V 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.....................................................9
5.9 Secretary..........................................................10
5.10 Treasurer..........................................................10
Article VI Distributions and Dividends...............................10
Article VII Shares....................................................10
7.1 Share Certificates.................................................10
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..............................................11
7.7 Record Date if None Fixed..........................................12
Article VIII Indemnification...........................................12
8.1 Indemnification of Directors.......................................12
8.2 Indemnification of Officers and Others.............................12
8.3 Subsidiaries.......................................................13
8.4 Determination......................................................13
8.5 Advances...........................................................14
8.6 Non-Exclusivity; Continuing Benefits...............................14
8.7 Insurance..........................................................14
8.8 Notice.............................................................15
8.9 Security...........................................................15
8.10 Amendment..........................................................15
8.11 Agreements.........................................................15
8.12 Successors.........................................................15
8.13 Additional Indemnification.........................................16
Article IX Miscellaneous.............................................16
9.1 Inspection of Books and Records....................................16
9.2 Fiscal Year........................................................16
9.3 Corporate Seal.....................................................16
9.4 Annual Statements..................................................16
9.5 Notice.............................................................16
Article X Amendments................................................17
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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 I
Office
1.1 Registered Office and Agent. The Corporation shall maintain a registered
office 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 II
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 fifty
percent (50%) 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 III
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 IV
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 V
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 VI
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 VII
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 VIII
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 IX
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 X
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.
