-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, H3YU/RQxwN5gIoo8aOayHmi5O88rOdggKOFnPp27zZiF8LN9I7deiuvSisJeYRjE 1VUsaEzjy1FMnz0GHvxDYg== 0000736822-01-000008.txt : 20010123 0000736822-01-000008.hdr.sgml : 20010123 ACCESSION NUMBER: 0000736822-01-000008 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20001130 FILED AS OF DATE: 20010116 FILER: COMPANY DATA: COMPANY CONFORMED NAME: IMMUCOR INC CENTRAL INDEX KEY: 0000736822 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 222408354 STATE OF INCORPORATION: GA FISCAL YEAR END: 0531 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 000-14820 FILM NUMBER: 1509650 BUSINESS ADDRESS: STREET 1: 3130 GATWAY STREET 2: PO BOX 5625 CITY: NORCROSS STATE: GA ZIP: 30091 BUSINESS PHONE: 7704412051 MAIL ADDRESS: STREET 1: 3130 GATEWAY DR STREET 2: P O BOX 5625 CITY: NORCROSS STATE: GA ZIP: 30091-5625 10-Q 1 0001.txt QUARTER ENDED 11-30-2000 FORM 10-Q Securities and Exchange Commission Washington, D. C. 20549 (Mark One) X Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For Quarter Ended: November 30, 2000 OR _ Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Commission File Number: 0-14820 IMMUCOR, INC. (Exact name of registrant as specified in its charter) Georgia 22-2408354 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 3130 Gateway Drive P.O. Box 5625 Norcross, Georgia 30091-5625 (Address of principal executive offices) (Zip Code) Registrant's telephone number: (770) 441-2051 Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date. As of January 10, 2001: Common Stock, $. 10 Par Value - 7,277,617 IMMUCOR, INC. Condensed Consolidated Balance Sheets
November 30, 2000 May 31, 2000 ASSETS (Unaudited) (Audited) --------------------- ------------------ Current assets: Cash and cash equivalents $ 3,195,038 $ 3,505,926 Accounts receivable, net 21,212,028 21,726,062 Inventories 18,921,501 16,813,239 Income taxes receivable 1,158,849 752,470 Deferred income taxes 931,170 902,409 Prepaid expenses and other 1,823,650 1,321,363 --------------------- ------------------ Total current assets 47,242,236 45,021,469 Long-term investment, at cost 1,000,000 1,000,000 Property and equipment, at cost 25,848,394 25,196,862 less accumulated depreciation (8,997,775) (7,720,980) --------------------- ------------------ 16,850,619 17,475,882 Deferred income taxes 1,120,238 1,120,238 Other assets, net 2,683,895 2,251,293 Deferred licensing costs, net 1,946,747 2,044,850 Excess of cost over net tangible assets acquired, net 32,569,647 33,861,147 --------------------- ------------------ Total Assets $ 103,413,382 $ 102,774,879 ===================== ================== LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Current portion of borrowings under bank line of credit agreements $ 4,114,926 $ 2,952,307 Current portion of long-term debt 4,117,520 4,277,598 Current portion of capital lease obligations 656,196 618,240 Accounts payable 10,248,749 9,442,977 Income taxes payable 74,755 74,715 Accrued salaries and wages 1,655,444 1,346,874 Deferred income taxes 400,732 164,243 Other accrued liabilities 3,961,982 4,276,554 --------------------- ------------------ Total current liabilities 25,230,304 23,153,508 Long-term debt, including borrowings under bank line of credit agreements 35,359,214 33,150,485 Capital lease obligations 1,579,682 1,664,165 Deferred income taxes 2,815,794 3,062,331 Other liabilities 820,956 825,592 Shareholders' equity: Common stock - authorized 45,000,000 shares and 30,000,000 shares at 11/30/2000 and 5/31/2000, respectively, $.10 par value; issued and outstanding 7,277,617 at 11/30/2000 and 7,462,118 at 5/31/2000 727,762 746,212 Additional paid-in capital 15,382,541 16,848,804 Retained earnings 27,483,061 28,310,741 Accumulated other comprehensive loss (5,985,932) (4,986,959) --------------------- ------------------ Total shareholders' equity 37,607,432 40,918,798 --------------------- ------------------ Total Liabilities and Shareholders' equity $ 103,413,382 $ 102,774,879 ===================== ==================
See accompanying notes. IMMUCOR, INC. Condensed Consolidated Statements of Income (Unaudited)
Three Months Ended Six Months Ended November 30, November 30, November 30, November 30, 2000 1999 2000 1999 ---------------- ---------------- ---------------- ---------------- Net sales $16,813,264 $20,249,819 $33,894,506 $39,179,786 Cost of sales 8,839,249 9,268,872 17,407,203 18,223,299 ---------------- ---------------- ---------------- ---------------- Gross profit 7,974,015 10,980,947 16,487,303 20,956,487 Research and development 528,329 371,569 1,001,354 730,257 Selling and marketing 3,065,417 2,912,990 6,246,879 5,920,087 Distribution 1,411,523 1,463,690 2,839,124 2,998,960 General and administrative 2,131,915 2,858,310 4,501,825 5,239,288 Amortization expense 443,661 439,348 927,753 900,248 ---------------- ---------------- ---------------- ---------------- Total operating expenses 7,580,845 8,045,907 15,516,935 15,788,840 ---------------- ---------------- ---------------- ---------------- Income from operations 393,170 2,935,040 970,368 5,167,647 Interest income 17,238 6,098 21,025 10,615 Interest expense (814,026) (790,192) (1,679,741) (1,439,526) Other income 41,645 60,033 126,946 150,087 ---------------- ---------------- ---------------- ---------------- Total other expense (755,143) (724,061) (1,531,770) (1,278,824) ---------------- ---------------- ---------------- ---------------- (Loss) income before income taxes (361,973) 2,210,979 (561,402) 3,888,823 Income taxes 250,276 770,934 266,278 1,229,632 ---------------- ---------------- ---------------- ---------------- Net (loss) income ($612,249) $1,440,045 ($827,680) $2,659,191 ================ ================ ================ ================ (Loss) earnings per share: Basic ($0.08) $0.19 ($0.11) $0.35 ================ ================ ================ ================ Diluted ($0.08) $0.17 ($0.11) $0.31 ================ ================ ================ ================ Weighted average shares outstanding: Basic 7,277,617 7,725,678 7,294,709 7,665,335 ================ ================ ================ ================ Diluted 7,277,617 8,627,333 7,294,709 8,692,140 ================ ================ ================ ================
See accompanying notes. IMMUCOR, INC. Condensed Consolidated Statements of Cash Flows (Unaudited)
Six Months Ended November 30, November 30, 2000 1999 ----------------- ----------------- OPERATING ACTIVITIES: Net (loss) income ($827,680) $2,659,191 Adjustments to reconcile net (loss) income to net cash (used in) provided by operating activities: Depreciation 1,551,760 1,373,395 Amortization 927,753 900,248 Changes in assets and liabilities: Accounts receivable 514,034 (2,288,361) Accounts receivable from former officer and director - 140,946 Income tax receivable (406,415) 180,033 Inventories (2,108,262) (1,848,289) Other current assets (988,141) (247,574) Accounts payable 805,772 (1,070,224) Income taxes payable 25,943 579,568 Other current liabilities (10,127) 509,612 ----------------- ----------------- Cash (used in) provided by operating activities (515,363) 888,545 INVESTING ACTIVITIES: Purchase of / deposits on property and equipment (1,189,018) (1,088,497) Cash paid for acquisitions - (212,204) Acquisition-related severance - (79,019) Decrease (increase) in other assets 6,905 (263,337) ----------------- ----------------- Cash used in investing activities (1,182,113) (1,643,057) FINANCING ACTIVITIES: Borrowings/(payments) under line of credit agreements 2,640,148 (402,191) Payments of long term debt and capitalized leases (2,398,030) (807,473) Borrowings of long term debt and capitalized leases 3,191,572 - Exercise of stock options and warrants (259,131 shares) - 2,062,049 Purchase and retirement of stock (184,500 shares) (1,484,713) - ----------------- ----------------- Cash provided by financing activities 1,948,977 852,385 EFFECT OF EXCHANGE RATE CHANGES ON CASH (562,389) 102,458 ----------------- ----------------- (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS (310,888) 200,331 CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 3,505,926 2,793,592 ----------------- ----------------- CASH AND CASH EQUIVALENTS AT END OF PERIOD $3,195,038 $2,993,923 ================= =================
IMMUCOR, INC. Notes to Condensed Consolidated Financial Statements (Unaudited) 1. BASIS OF PRESENTATION The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States for interim financial information and the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by accounting principles generally accepted in the United States for complete financial statements. However, there has been no material change in the information disclosed in the Company's annual financial statements dated May 31, 2000, except as disclosed herein. In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. Operating results for the six-month period ended November 30, 2000 are not necessarily indicative of the results that may be expected for the year ending May 31, 2001. For further information, refer to the consolidated financial statements and footnotes thereto included in the Company's Annual Report on Form 10-K for the year ended May 31, 2000. Certain reclassifications were made in the consolidated financial statements for the six-month period ended November 30, 1999 to conform to the presentation for the six-month period ended November 30, 2000. 2. INVENTORIES Inventories are stated at the lower of first-in, first-out cost or market:
As of As of November 30, 2000 May 31, 2000 ---------------------- ---------------------- Raw materials and supplies $5,713,275 $4,983,303 Work in process 1,298,526 1,603,117 Finished goods 11,909,700 10,226,819 ---------------------- ---------------------- $18,921,501 $16,813,239 ====================== ======================
3. EARNINGS PER SHARE The following table sets forth the computation of basic and diluted earnings per share in accordance with Statement of Financial Accounting Standards No. 128, Earnings per Share.
Three Months Ended Six Months Ended November 30, November 30, November 30, November 30, 2000 1999 2000 1999 ---------------- --------------- ---------------- --------------- Numerator for basic and diluted earnings per share: (Loss) income available to common shareholders $(612,249) $ 1,440,045 $(827,680) $2,659,191 ================ =============== ================ =============== Denominator: For basic (loss) earnings per share - weighted average basis 7,277,617 7,725,678 7,294,709 7,665,335 Effect of dilutive stock options and warrants - 901,655 - 1,026,805 ---------------- --------------- ---------------- --------------- Denominator for diluted (loss) earnings per share adjusted weighted-average shares 7,277,617 8,627,333 7,294,709 8,692,140 ================ =============== ================ =============== Basic (loss) earnings per share $(0.08) $0.19 $(0.11) $0.35 ================ =============== ================ =============== Diluted (loss) earnings per share $(0.08) $0.17 $(0.11) $0.31 ================ =============== ================ ===============
4. DOMESTIC AND FOREIGN OPERATIONS Information concerning the Company's domestic and foreign operations is summarized below (in 000s):
------------------------------------------------------------------------------------------- Three Months Ended November 30, 2000 ------------------------------------------------------------------------------------------- U.S. Germany Italy Canada Other Eliminations Consolidated Net sales: Unaffiliated customers $10,532 $2,090 $1,330 $1,520 $1,341 $ - $16,813 Affiliates 1,778 76 - 26 53 (1,933) - ----------- ----------- ---------- ----------- ---------- ------------- -------------- Total 12,310 2,166 1,330 1,546 1,394 (1,933) 16,813 (Loss) income from operations 39 282 117 361 (347) (59) 393 ------------------------------------------------------------------------------------------- Three Months Ended November 30, 1999 ------------------------------------------------------------------------------------------- U.S. Germany Italy Canada Other Eliminations Consolidated Net sales: Unaffiliated customers $12,751 $2,757 $1,751 $1,415 $1,576 $ - $20,250 Affiliates 1,731 147 - 80 949 (2,907) - ----------- ----------- ---------- ----------- ---------- ------------- -------------- Total 14,482 2,904 1,751 1,495 2,525 (2,907) 20,250 (Loss) income from operations 2,024 372 168 452 (81) - 2,935 ------------------------------------------------------------------------------------------- Six Months Ended November 30, 2000 ------------------------------------------------------------------------------------------- U.S. Germany Italy Canada Other Eliminations Consolidated Net sales: Unaffiliated customers $21,192 $4,122 $2,744 $2,761 $3,076 $ - $33,895 Affiliates 3,387 147 - 45 89 (3,668) - ----------- ----------- ---------- ----------- ---------- ------------- -------------- Total 24,579 4,269 2,744 2,806 3,165 (3,668) 33,895 (Loss) income from operations (329) 647 294 674 (257) (59) 970 ------------------------------------------------------------------------------------------- Six Months Ended November 30, 1999 ------------------------------------------------------------------------------------------- U.S. Germany Italy Canada Other Eliminations Consolidated Net sales: Unaffiliated customers $24,985 $4,875 $3,419 $2,497 $3,404 $ - $39,180 Affiliates 3,253 248 - 151 1,329 (4,981) - ----------- ----------- ---------- ----------- ---------- ------------- -------------- Total 28,238 5,123 3,419 2,648 4,733 (4,981) 39,180 (Loss) income from operations 3,656 598 330 719 (127) (8) 5,168
The Company's U.S. operation made net export sales to unaffiliated customers of approximately $1,230,000 and $1,733,000 for the three months ended November 30, 2000 and 1999, respectively and $2,896,000 and $3,481,000 for the six months ended November 30, 2000 and 1999, respectively. The Company's German operation made net export sales to unaffiliated customers of approximately $170,000 and $245,000 for the three months ended November 30, 2000 and 1999, respectively and $387,000 and $495,000 for the six months ended November 30, 2000 and 1999, respectively. The Company's Canadian operation made net export sales to unaffiliated customers of approximately $720,000 and $560,000 for the three months ended November 30, 2000 and 1999, respectively and $1,280,000 and $1,091,000 for the six months ended November 30, 2000 and 1999, respectively. Product sales to affiliates are valued at market prices. 5. COMPREHENSIVE (LOSS) INCOME The components of comprehensive income for the three-month and six-month periods ended November 30, 2000 and 1999 are as follows:
Three Months Ended Six Months Ended November 30, November 30, November 30, November 30, 2000 1999 2000 1999 ---------------- ---------------- ------------------ ----------------- Net (loss) income $ (612,249) $ 1,440,045 $ (827,680) $ 2,659,191 Net foreign currency translation (243,931) (735,902) (998,973) (345,488) ---------------- ---------------- ------------------ ----------------- Comprehensive (loss) income $ (856,180) $ 704,143 $ (1,826,653) $ 2,313,703 ================ ================ ================== =================
Accumulated comprehensive loss as of November 30, 2000 and May 31, 2000 was ($5,985,932) and ($4,986,959), respectively. The balance consists of net losses on foreign currency translation adjustments and has been disclosed in the shareholders' equity section of the condensed consolidated balance sheets. 6. ACCOUNTS RECEIVABLE FROM OFFICER AND DIRECTOR On June 6, 2000, Edward L. Gallup, President and CEO of Immucor, Inc. entered into a loan agreement with Immucor, Inc. to borrow up to $400,000 in order to meet margin calls related to loans made by brokerage companies. The Company acknowledges that certain benefits would accrue to Immucor, Inc. and its shareholders if such margin calls were satisfied by some means other than having those shares sold by the broker. The interest rate on the loan is LIBOR plus 2%, which is the Company's current borrowing rate. As of November 30, 2000, the amount owed to Immucor, Inc. is $369,000 and is secured by 105,000 Immucor shares. 7. CONTINGENCIES During the quarter ended August 31, 2000, isolated performance issues arose at certain ABS2000 installations that resulted in mistypings not directly affecting any patient transfusions. The Company issued a safety notification, requesting customers to confirm ABS2000 results until the cause of the difficulty is identified and corrected. The Company believes it has identified the factors that caused the performance issues and submitted this information to the FDA. On December 6, 2000, with the FDA's approval, the safety notification for antibody screening and crossmatch assays was removed. Customers no longer have to perform manual backup for either of these procedures. In addition to this, the Company's corrective action plan for blood grouping was accepted by the FDA. This plan calls for the submission of a 510(k) to the FDA. The Company expects this document to be filed with the FDA by February 1, 2001. At that time Company service engineers will begin the process of completing field corrective action on the ABS2000 and will begin accumulating clinical data for group and type assays for selected customers. This data will be collated by the Company and submitted to the FDA for expedited review. Upon clearance by the FDA, the safety alert for group and type assays will be lifted. These performance issues may result in further delays in customers accepting instruments, and continue to affect sales of reagents used in the instruments, and both of these factors will adversely impact sales and earnings. The Company deferred recognition of instrument sales of approximately $1 million in the first and second quarters and believes this is a conservative approach to accounting for sales made in connection with its third party leasing arrangement. In addition, the Company may receive requests for refunds on instruments already placed in service or requests for financial concessions attributable to inconveniences associated with these performance issues. At the date of this report only three ABS2000 installations have requested credits. A private label leasing company that finances customer purchases of ABS2000 instruments has advised the Company that it is not willing to provide financing for additional purchases of this instrument until it satisfies itself that the performance issues related to the ABS2000 are resolved to the satisfaction of the FDA. The Company is working with the leasing company to help it obtain the required confirmation from the FDA. When the Company acquired Gamma Biologicals, Inc. ("Gamma Biologicals") in October 1998, Gamma Biologicals was a party to an existing legal proceeding. On May 12, 1998, Gamma Biologicals received notification that a claim of patent infringement had been filed on that date in U.S. District Court, Southern District of Florida, Miami Division, by Micro Typing Systems, Inc. and Stiftung fur Diagnostiche Forschung (the Foundation). Subsequently, in February 1999 the Company received notification that a second claim was filed in the U.S. District Court for the Northern District of Georgia, against Immucor, Inc. and Gamma Biologicals for patent infringement on the first patent described above and a second patent recently granted to the Foundation. The claim alleges that the recently introduced Gamma ReACT Test System infringes U.S. patent No. 5,512,432 granted to the Foundation April 30, 1996 and U.S. patent No. 5,863,802 granted to the Foundation on January 26, 1999. The plaintiffs seek a preliminary and permanent injunction against the continued alleged infringement by Gamma Biologicals and Immucor, and an award of treble damages, with interest and costs and reasonable attorney's fees. On September 5, 2000 a third patent was issued to the Foundation. The plaintiffs have asserted infringement of this patent and are seeking to add this patent to the lawsuit. The Company, in light of this new patent, is evaluating its position. A reserve for the lawsuit was recorded with the acquisition of Gamma Biologicals and management believes it is sufficient to cover contingent expenses related to the resolution of the lawsuit. European results were adversely affected by the interrupted supply of a distributed product produced by a large multinational supplier. The backorder situation escalated in the first quarter of fiscal 2001 and reduced sales by an estimated $230,000 and by a similar amount in the second quarter. The Company believes that the backorder situation will continue. (see Part II Item 1. Legal Proceedings). The Company expects European results to continue to be suppressed unless and until this supply problem can be satisfactorily resolved. ITEM 2. Management's Discussion and Analysis of Financial Condition and Results of Operations. Any statements contained herein that are not historical fact are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, and involve risks and uncertainties. All forward-looking statements included in this document are based on information available to the Company on the date hereof, and the Company assumes no obligation to update any such forward-looking statements. Further risks are detailed in the Company's filings with the Securities and Exchange Commission, including those set forth in its Annual Report on Form 10-K for the fiscal year ended May 31, 2000. Financial Condition and Liquidity: As of November 30, 2000, the Company's cash position totaled $3,195,000, an improvement of $360,000 for the quarter. During the quarter the Company had a net increase in borrowings on long-term debt and capitalized leases of $1.3 million to fund capital improvements necessary to meet FDA quality requirements and for inventory purchases. For the six-month period, $6.4 million additional debt was assumed to fund capital improvements, to repay $3.0 million in debt and to repurchase $1.5 million of the Company's common stock. During the first and second quarters, the Company did not achieve the Fixed Charge Coverage, Funded Debt to EBITDA and Liquidity ratios as specified in its loan agreement with its primary bank. These covenant calculations deteriorated due to the Company's recent reported losses. The bank has agreed to waive the present loan covenant defaults for the period ended November 30, 2000, and the Company is finalizing the restructuring of the loan covenants and debt repayment schedule. Management believes, now that the FDA has lifted the ABS2000 safety notification for antibody screen and crossmatch, that the Com- pany's current cash and cash equivalents, internally generated funds, and amounts available under the lines of credit should be more than sufficient to support operations for planned product introduction and continued improvement and development of products during the next 12 months. Management also believes that should the need arise for additional capital for other corporate purposes that these needs would be available through the issuance of various forms of equity or debt. Results of Operations: Net sales Net sales for the three months ended November 30, 2000 totaled $16,813,000, a decrease of $3,437,000 (17%) from last year's $20,250,000. The decrease in sales was due, in large part, to lower instrumentation sales in the U.S following the ABS2000 safety notification issued in the first quarter (see Note 7. Contingencies). The Company generated instrument revenues of $930,000 for the quarter compared to $3,589,000 for the same period last year. Customer returns and the loss of revenue for reagents provided free of charge to customers performing backup testing also reduced second quarter sales by approximately $591,000. The strength of the US dollar versus the Euro had the effect of reducing reported European sales by approximately $1,200,000, or 20%, when compared to the prior year. For the six months ended November 30, 2000, net sales were $33,895,000 versus $39,180,000 in the prior year. Gross profit As a percent of sales, gross profit for the three months ended November 30, 2000 equaled 47.4% compared to 54.2% for the same period in 1999. The decrease in gross profit margin was primarily caused by ABS2000 instrument installation costs incurred in this quarter, in advance of revenue recognition. The Company now expects to record these revenues as the instruments are accepted. Further costs were incurred for implementation of additional quality assurance and quality system policies to bring the manufacturing operations into FDA compliance. Gross profit for the six months ended November 30, 2000 totaled 48.6% versus 53.5% for the same period in 1999. The Company has launched an aggressive reagent price increase that it expects will improve sales and profits significantly while only adding minor increases to the overall cost of patient care. It is expected that this price increase, coupled with new instrument placements, will return the Company to profitability by the fiscal fourth quarter. Operating expenses When compared to the prior year, research and development costs for the three and six-month periods ended November 30, 2000 increased $157,000 and $271,000 due to instrument development initiatives for the Galileo for the European market. The project is on track for a launch in late calendar year 2001. The Galileo is designed to fulfill the need in Europe for a high throughput blood serology-testing device with a test menu that includes antibody screening. Selling and marketing expenses for the three and six month periods increased $152,000 and $327,000 as compared to the same periods last year. The Company recorded $230,000 in additional expense representing the impact of the interrupted reagent sales on ABS customers who financed their instrument purchase through fee per use arrangements. Distribution expenses as a percentage of sales have increased from 7.2% to 8.3% for the fiscal year to date as compared to the prior period, although costs remained relatively constant. The decrease in sales in the current period was due primarily to the impact of the ABS2000 safety alert and the strength of the US dollar. Neither factor had a significant impact on distribution activities. Shipments of core reagent products continued at or above historical levels. General and administrative expenses and amortization expense for the three and six month periods remained relatively constant, as a percentage of sales, as compared with the same periods last year. Interest expense When compared to the prior year three and six month periods, interest expense increased $24,000, or 3% and $240,000, or 17%. This is the result of increased borrowings on long-term debt and capitalized leases as outlined in Financial Condition and Liquidity. Other income Other income decreased for the three and six month periods as compared to the prior year due to foreign currency transaction losses offsetting foreign currency transaction gains in the current periods. Income taxes Income tax expense decreased during the three and six-month periods ended November 30, 2000, as compared to the prior period, due primarily to the domestic operating loss that was offset by taxes on income provided in Germany and Canada as a result of the Company's ongoing implementation of tax planning strategies. The domestic operating losses will offset future domestic earnings as the Company returns to profitability. ITEM 3. Quantitative and Qualitative Disclosures On Market Risk There have been no material changes regarding the Company's market risk position from the information provided in its Annual Report on Form 10-K for the fiscal year ended May 31, 2000. The quantitative and qualitative disclosures about market risk are discussed in Item 7A-Quantitative and Qualitative Disclosures About Market Risk, contained in the Company's Form 10-K. Part II OTHER INFORMATION Item 1. Legal Proceedings. On December 28, 2000 the Company initiated arbitration against Becton, Dickinson and Company with the American Arbitration Association to take place in Santa Clara County, California. The Company's claims against Becton, Dickinson and Company relate to a Distributor Agreement between the Company and Biometric Imaging, Inc., and Becton, Dickinson and Company became a party to this agreement when they acquired Biometric Imaging, Inc. in 1999. The Company alleges that Becton, Dickinson and Company either intentionally, recklessly or negligently failed to supply medical testing instruments and assay test kits and either intentionally, recklessly or negligently supplied defective assay test kits in violation of its obligations under this Distributor Agreement. The Company seeks specific performance by Becton, Dickinson and Company of the Distributor Agreement or, in the alternative, compensatory and punitive damages in an amount in excess of $4 million. The Company acknowledges that this proceeding is in its initial stages and cautions that it can not accurately estimate the amount it may recover, if any. Item 4. Submission of Matters to a Vote of Security Holders. An annual meeting of shareholders was held on November 30, 2000. At the meeting, the shareholders were asked to approve an amendment to the Company's Articles of Incorporation to increase the number of authorized shares from 30 million shares to 45 million shares. This resolution was approved with 6,527,615 votes being cast in favor of the proposal and 773,263 votes were withheld or voted against the proposal and 22,308 shares abstained. In addition, a proposal to stagger the terms of the board of directors into three classes was not approved. This resolution received 2,495,654 votes in favor of the proposal and 1,611,964 votes were case against the proposal or withheld. 38,650 shares abstained and there were 3,176,918 broker non-votes. Finally, each member of the board was re-elected to the board of directors until the next annual meeting of shareholders. Each directors received the following number of votes:
For Against or Withheld Edward L. Gallup 6,439,602 883,584 Didier L. Lanson 6,634,832 688,354 Dennis M. Smith, Jr. M.D. 6,639,132 684,054 Ralph A. Eatz 6,638,132 685,054 G. Bruce Papesh 6,511,968 811,218 Joseph E. Rosen 6,636,532 686,654 Dr. Gioacchino De Chirico 6,625,932 697,254 Daniel T. McKeithan 6,632,132 691,054
Item 6. Exhibits and Reports on Form 8-K. (a) The Company has filed the following exhibits with this report: 3.1 Amended and Restated Articles of Incorporation 3.2 Amended and Restated Bylaws. 4.2 Amendment No. 1 to Shareholders Rights Agreement dated as of November 29, 2000 between Immucor, Inc. and EQUISERVE Trust Company, N.A. 27 Financial data schedule. (b) The Company filed a report on Form 8-K on November 30, 2000 describing in Item 9 of such report in accordance with Regulation FD certain statements made by management of the Company at its annual meeting of shareholders. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the under- signed thereunto duly authorized. IMMUCOR, INC. (Registrant) Date: January 16, 2001 /s/ Edward L. Gallup Edward L. Gallup, President /s/ Steven C. Ramsey Steven C. Ramsey, Senior Vice President - Finance (Principal Accounting Officer) EX-3.(I) 2 0002.txt AMENDED AND RESTATED CHARTER CERTIFICATE The undersigned, being the Chief Executive Officer of Immucor, Inc., a Georgia corporation (the "Corporation"), does hereby certify pursuant to Section 14-2-1007(d) of the Georgia Business Corporation Code (the "Code") that Restated Articles of Incorporation have been adopted by the Corporation and that the full text of the Restated Articles of Incorporation are attached hereto in their entirety. The undersigned further certifies that: 1. Article V of the Articles of Amendment has been amended to increase from 30,000,000 shares to 45,000,000 shares the number of shares of Common Voting Stock of $.10 par value per share of the Corporation which the Corporation is authorized to issue. This amendment was duly adopted by the Board of Directors of the Corporation on August 22, 2000 in accordance with Section 14-2-1003 of the Code, and duly approved by the Shareholders of the Corporation at the annual meeting of Shareholders held on November 30, 2000. 2. Former Articles VII, IX and X, pertaining to the initial registered office and agent, the initial directors, and the incorporators, respectively, have been omitted. This amendment was duly adopted by the Board of Directors of the Corporation on August 22, 2000 in accordance with Section 14-2-1002 of the Code, and the approval of the shareholders was not required. 3. The Amended and Restated Articles were adopted by the Corporation in the manner prescribed by the Code. The Amended and Restated Articles accurately restate the Articles of Incorporation of the Corporation and amendments existing immediately prior to the adoption of the accompanying Amended and Restated Articles and further amend the Corporation's articles as indicated therein. IN WITNESS WHEREOF, the undersigned has executed this Certificate on January 4, 2001. /s/ Edward L. Gallup -------------------- Edward L. Gallup, Chief Executive Officer AMENDED AND RESTATED ARTICLES OF INCORPORATION OF IMMUCOR, INC. Restated as of November 30, 2000 FIRST: The name of the corporation is IMMUCOR, INC. SECOND: The corporation is organized pursuant to the provisions of the Georgia Business Corporation Code. THIRD: The period of its duration is perpetual. FOURTH: The purpose or purposes for which the corporation is organized are: All lawful purposes, including, but not limited to, manufacturing and sale of diagnostic blood bank reagents. FIFTH: The corporation shall have authority, exercisable by its Board of Directors to issue not more than 45,000,000 shares of common voting stock of $.10 par value per share (the "Common Stock"). The corporation shall have the authority to acquire shares of its capital stock out of its unreserved and unrestricted earned surplus and capital surplus available therefor as otherwise provided by law. SIXTH: The corporation will not commence business until it has received the sum of five hundred dollars ($500.00) as consideration for the issuance of shares. SEVENTH: No shareholder of this corporation shall by reason of his holding shares of any class have any preemptive or preferential right to purchase or subscribe to any shares of any class of this corporation, now or hereafter to be authorized, or any notes, debentures, bonds, or other securities convertible into or carrying options or warrants to purchase shares of any class, now or hereafter to be authorized. EIGHTH: 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 vio- lation of law, (iii) liability under Section 14-2-832 (or any successor provision or redesig- nation 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. EX-3.(II) 3 0003.txt AMENDED AND RESTATED AS OF NOVEMBER 29, 20000 BYLAWS OF IMMUCOR, INC. Amended and Restated as of November 29, 2000 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 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. EX-2 4 0004.txt AMENDMENT NO. 1 TO SHAREHOLDER RIGHTS AGREEMENT AMENDMENT NO. 1 TO SHAREHOLDER RIGHTS AGREEMENT AMENDMENT NO. 1 TO SHAREHOLDER RIGHTS AGREEMENT, dated as of November 29, 2000 (this "Amendment"), between IMMUCOR, INC., a Georgia corporation (the "Company"), and EQUISERVE TRUST COMPANY, N.A., a national banking association (the "Rights Agent"), amends the SHAREHOLDER RIGHTS AGREEMENT, dated as of April 16, 1999 between the Company and the Rights Agent (the "Rights Agreement"). WITNESSETH WHEREAS, the Company and the Rights Agent desire to amend the Rights Plan prior to the Distribution Date in accordance with Section 27 of the Rights Plan. NOW, THEREFORE, in consideration of the premises and the mutual agreements set for thin the Rights Agreement and this Amendment, the parties hereby agree as follows: 1. The Rights Agreement is hereby amended by deleting Section 1(a) thereof in its entirety and substituting following: "(a) "Acquiring Person" shall mean any Person or group of Persons acting together, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, who or which, together with all Affiliates and Associates of such Person(s), shall be the Beneficial Owner of 15% or more of the shares of Common Stock then outstanding, but shall not include (i) the Company, (ii) any Subsidiary of the Company, or (iii) any employee benefit plan of the Company or any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company acting in accordance with and for or pursuant to the terms of any such plan. Notwithstanding the foregoing, no Person shall be deemed to be an "Acquiring Person" either (i) as a result of the acquisition of Common Stock by the Company which, by reducing the number of shares of Common Stock outstanding, increases the proportional number of shares beneficially owned by such Person together with all Affiliates and Associates of such Person; except that if (A) a Person would become an Acquiring Person but for the operation of this subclause (i)) as a result of the acquisition of Common Stock by the Company, and (B) after such share acquisition by the Company, such Person or an Affiliate or Associate of such Person, becomes the Beneficial Owner of any additional Common Stock, then such Person shall be deemed an Acquiring Person; or (ii) if within 8 days after such Person would otherwise have become an Acquiring Person (but for the operation of this subclause (ii)), such Person notifies the Board of Directors that such Person did so inadvertently and within 2 days after such notification, such Person is the Beneficial Owner of less than 5% of the outstanding shares of Common Stock." 2. The Rights Agreement is hereby amended by deleting Section 3(a) thereof in its entirety and substituting following: "(a) Until the earlier of (i) the Close of Business on the tenth day after the Stock Acquisition Date or (ii) the Close of Business on the tenth Business Day after the date that a tender or exchange offer by any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan) is first published or sent or given within the meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act, if upon consummation thereof, such Person would be the Beneficial Owner of 15% or more of the shares of Common Stock then outstanding (the earlier of (i) and (ii), as either of such periods may be extended pursuant to the provisions of Section 27 hereof, being herein referred to as the "Distribution Date"), (x) the Rights will be evidenced (subject to the provisions of paragraph (b) of this Section 3) by the certificates for the Common Stock registered in the names of the holders of the Common Stock (which certificates for Common Stock shall be deemed also to be certificates for Rights) and not by separate certificates, and (y) the Rights will be transferable only in connection with the transfer of the underlying shares of Common Stock (including a transfer to the Company). As soon as practicable after the Distribution Date, the Rights Agent will send by first-class, insured, postage prepaid mail, to each record holder of the Common Stock as of the Close of Business on the Distribution Date, at the address of such holder shown on the records of the Company, one or more rights certificates, in substantially the form of Exhibit A hereto (the "Rights Certificates"), evidencing one Right for each share of Common Stock so held, subject to adjustment as provided herein. In the event that an adjustment in the number of Rights per share of Common Stock has been made pursuant to Section 11(p) hereof, at the time of distribution of the Rights Certificates, the Company may make the necessary and appropriate rounding adjustments so that Rights Certificates representing only whole numbers of Rights are distributed and cash is paid in lieu of any fractional Rights. As of and after the Distribution Date, the Rights will be evidenced solely by such Rights Certificates." (continued on following page) 3. The Rights Agreement is hereby amended by deleting Section 11(a)(ii) (B) thereof in its entirety and substituting following: "(B) any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, at any time after the Rights Dividend Effective Date, without the consent of a majority of the Continuing Directors, shall become the Beneficial Owner of 15% or more of the shares of Common Stock then outstanding, other than pursuant to any transaction set forth in Section 13(a) hereof, or pursuant to a tender offer or an exchange offer for all outstanding shares of Common Stock at a price and on terms determined by the Board of Directors (including, following the earlier of (x) a Triggering Event and (y) the date on which a Person Becomes an Acquiring Person, at least a majority of the Continuing Directors) to be (a) at a price which is fair to shareholders (taking into account all factors which such members of the Board deem relevant including, without limitation, prices which could reasonably be achieved if the Company or its assets were sold on an orderly basis designed to realize maximum value) and (b) otherwise in the best interests of the Company and its shareholders, or ". 4. The term "Agreement" as used in the Rights Agreement shall be deemed to refer to the Rights Agreement as amended by this Amendment. 5. The foregoing amendments contained in paragraphs 1, 2, and 3 shall be effective as of the date hereof and the Rights Agreement shall remain in full force and effect and shall be otherwise unaffected hereby. 6. This Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. (continued on following page) IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all as of the date and year first above written. IMMUCOR, INC. By: /s/ Edward L. Gallup Edward L. Gallup, President EQUISERVE TRUST COMPANY, N.A. By: Name: Title: EX-27 5 0005.txt FDS -- 11/30/00 10Q FINANCIALS
5 3-MOS MAY-31-2001 NOV-30-2000 3195038 0 21212028 0 18921501 47242236 25848394 8997775 103413382 25230304 36938896 0 0 727762 36879670 103413382 16813264 16813264 8839249 8839249 7580845 0 814026 (361973) 250276 (612249) 0 0 0 (612249) (0.08) (0.08)
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