-----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, GOxcEWz2cjJUoIeVjmIZmYE+8hdAzdDdZT2EbXhCzHmIsmR8+pnQqMZcd2s7KzSt 98qJnGVUQzlFXtXxM2akMA== 0000736822-99-000020.txt : 19990521 0000736822-99-000020.hdr.sgml : 19990521 ACCESSION NUMBER: 0000736822-99-000020 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990520 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: S-3 SEC ACT: SEC FILE NUMBER: 333-78893 FILM NUMBER: 99631114 BUSINESS ADDRESS: STREET 1: 3130 GATEWAY DR 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 S-3 1 REGISTRATION STATEMENT FOR DOMINION WARRANTS As filed with the Securities and Exchange Commission on May 20, 1999 Registration No. 333-__________ =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------- FORM S-3 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 --------------------- IMMUCOR, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) --------------------- GEORGIA 22-2408354 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification Number) 3130 Gateway Drive Norcross, Georgia 30091 (770) 441-2051 (Address, including zip code, and telephone number, including area code, of principal executive offices) Edward L. Gallup Chief Executive Officer and President Immucor, Inc. 3130 Gateway Drive Norcross, Georgia 30091 Telephone: (770) 441-2051 (Name, address, including zip code, and telephone number, including area code, of agent for service) ------------------------------------------ A COPY OF ALL COMMUNICATIONS, INCLUDING COMMUNICATIONS SENT TO THE AGENT FOR SERVICE SHOULD BE SENT TO: Philip H. Moise, Esq. Nelson Mullins Riley & Scarborough, L.L.P. 999 Peachtree Street, N.E., Suite 1400 Atlanta, Georgia 30309 Telephone: (404) 817-6000 Facsimile: (404) 817-6050 Approximate date of commencement of proposed sale to public: From time to time after this registration statement becomes effective. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /X/ If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / __________ If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / __________ If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / /
CALCULATION OF REGISTRATION FEE - ------------------------------------------ -------------------- ---------------------- ----------------------- -------------------- Proposed Maximum Proposed Maximum Amount to be Aggregate Price Per Aggregate Offering Amount of Title of Shares to be Registered Registered Share Price Registration Fee1 - ------------------------------------------ -------------------- ---------------------- ----------------------- -------------------- Common Stock, no par value per share..... 628,4172 $12.00 $7,540,464 $2,096.25 - ------------------------------------------ -------------------- ---------------------- ----------------------- -------------------- (1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 promulgated under the Securities Act of 1933, as amended. (2) Represents shares issuable upon exercise of warrants issued to the selling shareholders in connection with our acquisition of Dominion Biologicals Limited.
PRELIMINARY PROSPECTUS, SUBJECT TO COMPLETION, DATED MAY 19, 1999 628,417 SHARES COMMON STOCK IMMUCOR, INC. On December 11, 1996, we issued warrants to purchase shares of our common stock to the shareholders of Dominion Biologicals Limited in connection with our acquisition of Dominion. We are filing this registration statement and prospectus on behalf of those individuals who may exercise their warrants and sell the common stock under this prospectus. Those selling shareholders and the number of shares of our common stock that they may acquire upon exercise of these warrants are listed on page 5 of this prospectus. The selling shareholders may offer the shares from time to time in public or private transactions on or off the Nasdaq National Market, at prevailing market prices or privately negotiated prices. Sales may be made through brokers, dealers or other agents who may receive compensation in the form of commissions, discounts or concessions. Our common stock is quoted on The Nasdaq National Market under the symbol "BLUD." On May 18, 1999, the closing sales price of our common stock on The Nasdaq National Market was $12.625. We will not receive any proceeds from the sale of the common stock, but will receive the exercise price of the warrants. You should read the description of certain risks under the caption "Risk Factors" beginning on page 3 before purchasing our common stock. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense. May 19, 1999 The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is permitted. INFORMATION ABOUT THE COMPANY At Immucor, Inc., we develop, manufacture and sell reagents and systems used by hospitals, labs and blood banks to determine the type of human blood, detect the presence of certain antibodies in human blood, and detect and identify certain other properties of human blood. We file reports, proxy statements and other information with the SEC. You may read and copy any document we file at the Public Reference Room of the SEC at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the Regional Offices of the SEC at Seven World Trade Center, Suite 1300, New York, New York 10048 and at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Please call 1-800-SEC-0330 for further information concerning the Public Reference Room. Our filings also are available to the public from the SEC's website at www.sec.gov. We distribute to our shareholders annual reports containing audited financial statements. INFORMATION INCORPORATED BY REFERENCE The SEC allows us to "incorporate by reference" the information we file with it, which means that we can disclose important information to you by referring to those documents. The information incorporated by reference is considered to be part of this prospectus, and information we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until the offering is completed: 1. Annual Report on Form 10-K for the year ended May 31, 1998. 2. Quarterly Reports on Form 10-Q for the quarters ended August 31, 1998, November 30, 1998, and February 28, 1999. 3. Current Report on Form 8-K dated April 19, 1999; and 4. Current Report on Form 8-K dated December 11, 1996; and 5. Description of our common stock contained in the Registration Statement on Form 8-A (Registration No. 0-14820) as declared effective by the SEC on July 21, 1986, as amended by various reports and other documents filed under the Exchange Act. You may request a copy of these filings, at no cost, by writing or calling us at: IMMUCOR, INC. 3130 Gateway Drive Norcross, Georgia 30091 Attention: Chief Financial Officer Telephone: (770) 441-2051 This prospectus is part of a registration statement we filed with the SEC. You should rely only on the information or representations provided in this prospectus. We have not authorized anyone to provide you with different information. The common stock will not be offered in any state where an offer is not permitted. You should not assume that the information in this prospectus is accurate as of any date other than the date on the cover of this prospectus. RISK FACTORS Before you invest in our common stock, you should be aware that there are various risks, including those described below. You should consider carefully these risk factors together with all of the other information included in this prospectus, including the documents that we incorporate by reference, before you decide to purchase shares of common stock. Some of the information in this prospectus may contain forward-looking statements. Such statements can be identified by the use of forward-looking terminology such as "may," "will," "expect," "believe," "intend," "anticipate," "estimate," "continue" or similar words. These statements discuss future expectations, estimate the happening of future events or our financial condition or state other "forward-looking" information. When considering such forward-looking statements, you should keep in mind the risk factors and other cautionary statements in this prospectus and the documents that we incorporate by reference. The risk factors noted in this section and other factors noted throughout this prospectus, including certain risks and uncertainties, could cause our actual results to differ materially from those contained in any forward-looking statement. If our blood bank automation system does not gain market acceptance we will be more susceptible to price competition. We sell the only automated blood bank detection system in North America. If customers choose not to use our automated system or if we cannot continue to place them, either because of a decision not to make the capital investment required, not to change product lines, or because a competitor develops a new system that is faster or less capital intensive, then we will be forced to compete mainly on price. In the non-automated blood bank systems market, our principal competitors are divisions of large corporations. Because these large corporations may have greater resources and be able to compete aggressively on price, the lack of commercial acceptance of our automated product may result in price reductions, lower profit margins and loss of our market share, any of which could have a material adverse effect on our business, financial condition and operating results. The development of new technology by our competitors could result in lower sales. If our competitors develop new technology that can inactivate antibodies or that results in the development of artificial blood, it could reduce the number of test systems that we sell. Our products test for the presence of certain antibodies in human blood to insure proper diagnosis of certain medical conditions. If these antibodies can be deactivated then there will be less of a need for our products. In addition, artificial blood, if developed, would likely not contain natural antibodies. Failure to comply with stringent government regulation could prevent us from selling our products. Neither our existing products nor any new products which may be developed will be able to be marketed commercially for clinical use in the United States or certain foreign countries in which they have not been approved. Our reagents, detection systems and other products are subject to strict regulation and licensing by the FDA, including the need for approval prior to marketing, and by other state and foreign agencies. In addition, facilities in the United States and abroad are subject to periodic inspection by the FDA. There has been an increasing level of regulatory scrutiny in the industry by the FDA resulting in more detailed and frequent inspections, and a greater number of observations cited per inspection, deficiency notices and warning letters. Failure to correct any deficiencies or to otherwise comply with applicable laws or regulations could subject us to enforcement action, including product seizures, recalls, center or facility closure, license revocations and civil and criminal penalties, any one or more of which could have a material adverse effect on our business. Any change in existing federal, state or foreign laws or regulations, or in the interpretation or enforcement of them, or the promulgation of any additional laws or regulations could have an adverse effect on our business. We are dependent upon single source suppliers. We purchase certain supplies for our operations from single source suppliers. The disruption of existing supply relationships could impair our ability to process, manufacture and test products or cause us to incur costs associated with the development of alternative sources. In addition, in some instances FDA approval would be required to replace or substitute a supplier or component that we use. Any such disruption could result in delays in obtaining antibodies or making product shipments, which could have a material adverse effect on our financial condition and results of operations. There are risks associated with international operations. We generate sales outside the United States and incur expenses in foreign currencies and are subject to risks generally associated with international operations. Accordingly, our financial results from international operations may be affected by fluctuations in currency exchange rates. We may be unable to protect adequately our proprietary technology. Our success and ability to compete are dependent largely upon our proprietary technology. We cannot be certain that we have taken adequate steps to deter misappropriation or independent third-party development of our technology. In addition, we cannot be certain that third parties will not assert infringement claims in the future or, if infringement claims are asserted, that such claims will be resolved in our favor. Although we are not currently subject to any dispute that would prevent us from using our proprietary technology as we plan, any infringement claims resolved against us could have a material adverse effect on our business, financial condition or results of operations. Our stock price is volatile. There has been significant volatility in the market price of securities of healthcare companies that often has been unrelated to the operating performance of such companies. We believe that factors such as legislative, regulatory and technological developments, failure to meet securities analysts' performance expectations and quarterly variations in financial results could cause the market price of the common stock to fluctuate substantially. USE OF PROCEEDS All net proceeds from the sale of the shares described in this prospectus will go to the selling shareholders who offer and sell their shares. We will not receive any proceeds from sales of shares by the selling shareholders. SELLING SHAREHOLDERS All of the share amounts listed below represent shares issuable upon exercise of warrants issued in connection with our acquisition of Dominion Biologicals Limited. The shares offered by this prospectus may be offered from time to time by the selling shareholders named below upon the exercise of their warrants. The following table lists the selling shareholders and the number and percentage of shares of common stock beneficially owned by each selling shareholder before and after the offering of the shares. Because the selling shareholders may sell all, some or none of their shares, no estimate can be made of the actual number of shares that will be offered. The number and percentage of shares of common stock provided in the following table represent the number of shares of common stock as to which warrants held by the selling shareholders may be exercised. For the purpose of determining the percentage of shares of common stock beneficially owned by each selling shareholder, we have assumed that all warrants held by the selling shareholders have been exercised, and no other warrants have been exercised. Only percentages of one percent or greater are shown, and footnotes are provided at the end of the table.
Shares Shares Beneficially Beneficially Owned Before the Shares Owned After the Offering Offered Offering Name Number Percent(1) Number Percent(1) Patrick Waddy 271,139 (2) 3.3 251,139 20,000 * (3) Blaine McNeil 170,606 (4) 2.1 167,806 2,800 * Nubio Technologies Corporation 209,472 2.6 209,472 0 * (1) Calculated based upon 8,101,309 shares of common stock outstanding, assuming that all warrants issued in connection with the acquisition of Dominion Biologicals have been exercised. (2) Includes: 20,000 shares owned directly by Mr.Waddy and warrants to purchase 251,139 shares of common stock in connection with the acquisition of Dominion Biologicals. (3) Represents less than 1%. (4) Includes: 2,800 shares owned directly by Mr. McNeil and warrants to purchase 167,806 shares of common stock in connection with the acquisition of Dominion Biologicals.
PLAN OF DISTRIBUTION The selling shareholders may sell or transfer all or a portion of the shares offered hereby from time to time to third parties directly or by or through brokers, dealers, agents or underwriters, who may receive compensation in the form of underwriting discounts, concessions or commissions from the selling shareholders and/or from purchasers of the shares for whom they may act as agent. Such sales and transfers of the shares may be effected from time to time in one or more transactions on the Nasdaq National Market, in negotiated transactions or otherwise, at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at negotiated prices, or without consideration, or by any other legally available means. Any or all of the shares may be sold or transferred from time to time by means of o a block trade in which the broker or dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; o purchases by a broker or dealer as principal and resale by such broker or dealer for its account pursuant to this prospectus; o ordinary brokerage transactions and transactions in which the broker solicits purchasers; o through the writing of options on the shares; o pledges as collateral to secure loans, credit or other financing arrangements and any subsequent foreclosure, if any, thereunder; o gifts, donations and contributions; o otherwise. To the extent required, the number of shares to be sold or transferred, the purchase price, the name of any such agent, broker, dealer or underwriter and any applicable discounts or commissions and any other required information with respect to a particular offer will be set forth in an accompanying prospectus supplement. The aggregate net proceeds to the selling shareholders from the sale of the shares will be the purchase price of such shares less any commissions. This prospectus also may be used, with our prior written consent, by donees and pledgees of the selling shareholders. In order to comply with the securities laws of some states, if applicable, the shares will be sold in those jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the shares may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with. The selling shareholders and any brokers, dealers, agents or underwriters that participate in the distribution of the shares may be deemed to be "underwriters" within the meaning of the Securities Act, in which event any discounts, concessions and commissions received by such brokers, dealers, agents or underwriters and any profit on the resale of the Shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act. No underwriter, broker, dealer or agent has been engaged by us in connection with the distribution of the shares. Any shares covered by this prospectus which qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than pursuant to this prospectus. There is no assurance that the selling shareholders will sell any or all of the shares. The selling shareholders may transfer, devise or gift shares by other means not described herein. We will pay all of the expenses incident to the registration of the shares, other than underwriting discounts and selling commissions, if any. LEGAL MATTERS The validity of the shares of common stock offered hereby has been passed upon by Nelson Mullins Riley & Scarborough, L.L.P., Atlanta, Georgia. EXPERTS Ernst & Young LLP, independent auditors, have audited our consolidated financial statements and schedule included in our Annual Report on Form 10-K for the year ended May 31, 1998, as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements and schedule are incorporated by reference in reliance on Ernst & Young LLP's report, given on their authority as experts in accounting and auditing. PART II INFORMATION NOT REQUIRED IN THE PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The expenses payable by the Registrant in connection with the issuance and distribution of the securities being registered are estimated below: SEC registration fee.................................$ 2,096.25 Listing fees......................................... 12,528.34 Legal fees and expenses.............................. 10,000.00 Printing expenses.................................... 1,000.00 Accounting fees...................................... 3,800.00 Miscellaneous........................................ 0.00 Total.......................................$ 29,424.59 ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 14-2-850, et. seq., of the Georgia Business Corporation Code authorizes us to indemnify our directors, officers, employees and agents in certain circumstances. Section 14-2-856 of the Code expressly allows us to provide indemnification rights that are broader than provided under the Code if contained in a bylaw ratified by the shareholders by a majority of the shares to be cast. Article Eight of our Bylaws provides broader indemnification rights than expressly provided under the Code and, except for that part of Article Eight that obligates us to indemnify certain executive officers, discussed below, was previously ratified by our shareholders. The following is a summary of the material provisions of Article Eight. Directors Article Eight generally requires us to indemnify persons who are parties to any civil, criminal, administrative or investigative action, suit or proceeding by reason of the fact that such person was or is one of our directors. Except as noted in the next paragraph, directors are entitled to be indemnified against expenses (including but not limited to attorneys' fees and court costs), and against any judgments, fines and amounts paid in settlement actually and reasonably incurred by them. Directors also generally are entitled to have us advance any of those expenses prior to final disposition of the proceeding provided that: (1) the director furnishes us with a written affirmation of his or her good faith belief that he or she is entitled to indemnification, either because he or she met the relevant standard of conduct or because the proceeding involves conduct for which liability has been eliminated under a provision of the articles of incorporation; (2) the Board of Directors has not made its own determination that the director is not entitled to indemnification; and (3) the director furnishes us with an undertaking to repay us if it is ultimately determined that they are not entitled to indemnification. The Code prohibits us from indemnifying directors for the following types of liabilities: (1) any appropriation, in violation of the director's duties, of any of our business opportunities; (2) acts or omissions which involved intentional misconduct or a knowing violation of law; (3) liability under Section 14-2-832 of the Code (dealing with unlawful dividends or other distributions); and (4) any transaction from which the director derived an improper personal benefit. In addition, our bylaws do not provide for indemnification to directors to the extent the amounts for which indemnification is sought do not exceed the director's compensation for services as a director during the 12-month period preceding the director's breach of duty. Executive Officers The Board of Directors recently amended our bylaws to extend our indemnification obligation to persons identified as executive officers in our filings with the SEC, but our shareholders have not yet ratified this amendment. The indemnification to be provided to those executive officers is substantially the same as that to be provided to directors. However, this bylaw will extend greater indemnification to those executive officers than that authorized by the Code. Therefore, this bylaw will not be fully effective until ratified by the shareholders by a majority of the shares cast, and we anticipate that the ratification of this bylaw will be on the agenda at the next annual meeting of shareholders which is expected to be held on September 16, 1999. Officers, Employees and Agents In addition, the Board of Directors also can extend to officers, employees and agents the same indemnification rights held by directors, subject to all of the accompanying conditions and obligations, except that the indemnification so provided need not be limited by a requirement that officers, employees and agents bear the liability up to the amount of their compensation over a 12-month period. Except for persons identified as executive officers in our filings with the SEC, the Board of Directors has not yet extended indemnification rights to any officers, employees or agents. Miscellaneous Upon authorization by the Board of Directors, we can enter into an agreement or agreements providing to any person who was or is one of our directors, officers, employees or agents, indemnification rights substantially the same as those provided to directors under Article Eight. We currently do not plan to enter into any agreements of indemnity. Finally, we can purchase and maintain insurance on behalf of any person who is or was one of our directors, officers, employees or agents against any liability asserted against him or incurred by him in any such capacity, whether or not we would have the power to indemnify him against that liability under Article Eight. ITEM 16. EXHIBITS EXHIBIT NO. DESCRIPTION 3.1 Articles of Correction of Immucor, Inc. 3.2 Amended and Restated Bylaws of Immucor, Inc. 4.1 Share Purchase Agreement (incorporated by reference to the Registrant's Current Report on Form 8-K, date of filing December 26, 1996). 5.1 Opinion of Nelson Mullins Riley & Scarborough, LLP. 23.1 Consent of Nelson Mullins Riley & Scarborough, LLP. (included in Exhibit 5.1) 23.2 Consent of Ernst & Young, LLP. ITEM 17. UNDERTAKINGS. Rule 415 offering The undersigned issuer hereby undertakes that it will: (1) File, during any period in which it offers or sells securities, a post-effective amendment to this registration statement to: (i) Include any prospectus required by section l0(a) (3) of the Securities Act of 1933. (ii) Reflect in the prospectus any facts or events which, individually or in the aggregate, represent a fundamental change in the information set forth in the registrant statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement. (iii) Include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (2) For determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed a new registration statement relating to the securities offered therein, and the offering of such securities at that time to be the initial bona fide offering thereof. (3) Remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, hereunto duly authorized, in the City of Norcross, State of Georgia, on May 19, 1999. IMMUCOR, INC. By: By: /s/ Edward L. Gallup /s/ Steven C. Ramsey Edward L. Gallup.. Steven C. Ramsey Chief Executive Officer Chief Financial Officer and President (Principal (Principal Financial and Executive Officer) Accounting Officer) POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints Edward L. Gallup and Steven C. Ramsey and either of them his true and lawful attorney-in-fact with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to sign a Registration Statement pursuant to Rule 462(b) under the Securities Act of 1933 and to cause the same to be filed, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby granting to said attorneys-in fact and agents, full power and authority to do and perform each and every act and thing whatsoever requisite or desirable to be done in and about the premises, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all acts and things that said attorneys-in-fact and agents, or their substitutes or substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on May 19, 1999. SIGNATURES TITLE - ---------- ----- /s/ Edward L. Gallup Chief Executive Officer, Edward L. Gallup President and Director (Principal Executive Officer) /s/ Steven C. Ramsey Chief Financial Officer Steven C. Ramsey (Principal Financial and Accounting Officer) /s/ Ralph A. Eatz Director Ralph A. Eatz /s/ Giocchino De Chirico Director Dr. Gioacchino De Chirico /s/ Daniel T. McKeithan Director Daniel T. McKeithan /s/ Didier L. Lanson Director Didier L. Lanson /s/ G. Bruce Papesh Director G. Bruce Papesh /s/ Dennis M. Smith Director Dennis M. Smith /s/ Joseph E. Rosen Director Joseph E. Rosen EXHIBIT INDEX EXHIBIT NO. DESCRIPTION 3.1 Articles of Correction of Immucor, Inc. 3.2 Amended and Restated Bylaws of Immucor, Inc. 4.1 Share Purchase Agreement (incorporated by reference to the Registrant's Current Report on Form 8-K, date of filing December 26, 1996). 5.1 Opinion of Nelson Mullins Riley & Scarborough, LLP. 23.1 Consent of Nelson Mullins Riley & Scarborough, LLP. (included in Exhibit 5.1) 23.2 Consent of Ernst & Young, LLP. EX-3.(I) 2 ARTICLES OF CORRECTION AMENDMENT EXHIBIT 3.1 ARTICLES OF CORRECTION TO THE ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION OF IMMUCOR, INC. IMMUCOR, INC., a Georgia corporation (the "Corporation"), hereby files Articles of Correction as follows: 1. The document to be corrected is the Articles of Amendment to the Articles of Incorporation of the Corporation, filed with the Secretary of State on December 22, 1989. 2. The incorrect statement in said Articles of Amendment is the following provision set forth in the Eleventh Article thereof: ELEVENTH: The personal liability of a director of the corporation to the corporation or its shareholders for monetary damages for breach of duty of care or other duty as a director shall be limited to an amount not exceeding said director's compensation for services as a director during the twelve-month period immediately preceding such breach, except that a director's liability shall not be so limited for (i) any appropriation, in violation of the director's duties, of any business opportunity of the corporation, (ii) acts or omissions which involved intentional misconduct or a knowing violation of law, (iii)liability under Section 14-2-831 (or any successor provision or redesignation thereof) of the Georgia Business Corporation Code, and (iv) any transaction from which the director derived an improper personal benefit. For purposes of this Article Eleventh, a director's compensation for serving as a director shall not include amounts received as reimbursement for expenses, or for services as an officer, employee or agent. If at any time the Georgia Business Corporation Code shall have been amended to authorize the further elimination or limitation of the liability of a director, then the liability of each director of the corporation shall be eliminated or limited to the fullest extent permitted by such Code, as so amended, without further action by the shareholders, unless the provisions of the Georgia Business Corporation Code, as amended, require further action by the shareholders. Any repeal or modification of the foregoing provisions of this Article Eleventh shall not adversely affect the elimination or limitation of liability or alleged liability of any director of the corporation pursuant to Article Eleventh as in effect prior to such repeal or modification, for or with respect to any acts or omissions of such director prior to such repeal or modification. The foregoing statement is incorrect because clause (iii) in the first paragraph of Article Eleven incorrectly referred to Section 14-2-831 of the Code rather than Section 14-2-832 of the Code. 3. The foregoing Articles of Amendment are hereby corrected by deleting Article Eleven thereof and replacing it with the following: "Effective the date hereof, Article Eleven of the Articles of Incorporation of Immucor, Inc. is amended to read as follows: ELEVENTH: The personal liability of a director of the corporation to the corporation or its shareholders for monetary damages for breach of duty of care or other duty as a director shall be limited to an amount not exceeding said director's compensation for services as a director during the twelve-month period immediately preceding such breach, except that a director's liability shall not be so limited for (v) any appropriation, in violation of the director's duties, of any business opportunity of the corporation, (vi) acts or omissions which involved intentional misconduct or a knowing violation of law, (vii) liability under Section 14-2-832 (or any successor provision or redesignation thereof) of the Georgia Business Corporation Code, and (viii) any transaction from which the director derived an improper personal benefit. For purposes of this Article Eleventh, a director's compensation for serving as a director shall not include amounts received as reimbursement for expenses, or for services as an officer, employee or agent. If at any time the Georgia Business Corporation Code shall have been amended to authorize the further elimination or limitation of the liability of a director, then the liability of each director of the corporation shall be eliminated or limited to the fullest extent permitted by such Code, as so amended, without further action by the shareholders, unless the provisions of the Georgia Business Corporation Code, as amended, require further action by the shareholders. Any repeal or modification of the foregoing provisions of this Article Eleventh shall not adversely affect the elimination or limitation of liability or alleged liability of any director of the corporation pursuant to Article Eleventh as in effect prior to such repeal or modification, for or with respect to any acts or omissions of such director prior to such repeal or modification." IN WITNESS WHEREOF, the Corporation has caused these Articles of Correction to be executed by its duly authorized officer, this first day of April, 1999. IMMUCOR, INC. By:/s/ Edward L. Gallup Edward L. Gallup, President EX-3.(II) 3 AMENDED AND RESTATED BY-LAWS BYLAWS OF IMMUCOR, INC. Amended and Restated as of April 16, 1999 BYLAWS OF IMMUCOR, INC. TABLE OF CONTENTS Page Article One Office....................................................1 1.1 Registered Office and Agent........................................1 1.2 Principal Office...................................................1 1.3 Other Offices......................................................1 Article Two Shareholders' Meetings....................................1 2.1 Place of Meetings..................................................1 2.2 Annual Meetings....................................................1 2.3 Special Meetings...................................................2 2.4 Notice of Meetings.................................................2 2.5 Waiver of Notice...................................................2 2.6 Voting Group; Quorum; Vote Required to Act.........................2 2.7 Voting of Shares...................................................3 2.8 Proxies ..........................................................3 2.9 Presiding Officer..................................................3 2.10 Adjournments.......................................................3 2.11 Conduct of the Meeting.............................................4 2.12 Action of Shareholders Without a Meeting...........................4 2.13 Matters Considered at Annual Meetings..............................4 Article Three Board of Directors........................................5 3.1 General Powers.....................................................5 3.2 Number, Election and Term of Office................................5 3.3 Removal of Directors...............................................5 3.4 Vacancies..........................................................5 3.5 Compensation.......................................................6 3.6 Committees of the Board of Directors...............................6 3.7 Qualification of Directors.........................................6 3.8 Certain Nomination Requirements....................................6 Article Four Meetings of the Board of Directors........................7 4.1 Regular Meetings...................................................7 4.2 Special Meetings...................................................7 4.3 Place of Meetings..................................................7 4.4 Notice of Meetings.................................................7 4.5 Ouorum ............................................................7 4.6 Vote Required for Action...........................................7 4.7 Participation by Conference Telephone..............................8 4.8 Action by Directors Without a Meeting..............................8 4.9 Adjournments.......................................................8 4.10 Waiver of Notice...................................................8 Article Five Officers..................................................8 5.1 Offices ...........................................................8 5.2 Term ..............................................................9 5.3 Compensation.......................................................9 5.4 Removal ...........................................................9 5.5 Chairman of the Board..............................................9 5.6 Chief Executive Officer............................................9 5.7 President..........................................................9 5.8 Vice Presidents...................................................10 5.9 Secretary.........................................................10 5.10 Treasurer.........................................................10 Article Six Distributions and Dividends..............................10 Article Seven ...Shares...................................................11 7.1 Share Certificates................................................11 7.2 Rights of Corporation with Respect to Registered Owners...........11 7.3 Transfers of Shares...............................................11 7.4 Duty of Corporation to Register Transfer..........................11 7.5 Lost, Stolen, or Destroyed Certificates...........................11 7.6 Fixing of Record Date.............................................12 7.7 Record Date if None Fixed.........................................12 Article Eight Indemnification..........................................12 8.1 Indemnification of Directors......................................12 8.2 Indemnification of Officers and Others............................13 8.3 Subsidiaries......................................................13 8.4 Determination.....................................................14 8.5 Advances .........................................................14 8.6 Non-Exclusivity; Continuing Benefits..............................15 8.7 Insurance.........................................................15 8.8 Notice............................................................15 8.9 Security .........................................................15 8.10 Amendment.........................................................15 8.11 Agreements........................................................16 8.12 Successors........................................................16 8.13 Additional Indemnification........................................16 Article Nine Miscellaneous............................................16 9.1 Inspection of Books and Records...................................16 9.2 Fiscal Year.......................................................16 9.3 Corporate Seal....................................................17 9.4 Annual Statements.................................................17 9.5 Notice ...........................................................17 Article Ten Amendments...............................................17 BYLAWS OF IMMUCOR, INC. - ------------------------------------------------------------------------------- References in these Bylaws to "Articles of Incorporation" are to the Articles of Incorporation of Immucor, Inc., a Georgia corporation (the "Corporation"), as amended and restated from time to time. All of these Bylaws are subject to contrary provisions, if any, of the Articles of Incorporation (including provisions designating the preferences, limitations, and relative rights of any class or series of shares), the Georgia Business Corporation Code (the "Code"), and other applicable law, as in effect on and after the effective date of these Bylaws. References in these Bylaws to "Sections" shall refer to sections of the Bylaws, unless otherwise indicated. - ------------------------------------------------------------------------------- ARTICLE One ...... Office 1.1 Registered Office and Agent. The Corporation shall maintain a registered off ice and shall have a registered agent whose business office is the same as the registered office. 1.2 Principal Office. The principal office of the Corporation shall be at the place designated in the Corporation's annual registration with the Georgia Secretary of State. 1.3 Other Offices. In addition to its registered office and principal office, the Corporation may have offices at other locations either in or outside the State of Georgia. ARTICLE Two ...... Shareholders' Meetings 2.1 Place of Meetings. Meetings of the Corporation's shareholders may be held at any location inside or outside the State of Georgia designated by the Board of Directors or any other person or persons who properly call the meeting, or if the Board of Directors or such other person or persons do not specify a location, at the Corporation's principal office. 2.2 Annual Meetings. The Corporation shall hold an annual meeting of shareholders, at a time determined by the Board of Directors, to elect directors and to transact any business that properly may come before the meeting. The annual meeting may be combined with any other meeting of shareholders, whether annual or special. 2.3 Special Meetings. Special meetings of shareholders of one or more classes or series of the Corporation's shares may be called at any time by the Board of Directors, the Chairman of the Board, or the Chief Executive Officer and shall be called by the Corporation upon the written request (in compliance with applicable requirements of the Code) of the holders of shares representing twenty-five percent (25%) or more of the votes entitled to be cast on each issue proposed to be considered at the special meeting. The business that may be transacted at any special meeting of shareholders shall be limited to that proposed in the notice of the special meeting given in accordance with Section 2.4 (including related or incidental matters that may be necessary or appropriate to effectuate the proposed business). 2.4 Notice of Meetings. In accordance with Section 9.5 and subject to waiver by a shareholder pursuant to Section 2.5, the Corporation shall give written notice of the date, time, and place of each annual and special shareholders' meeting no fewer than 10 days nor more than 60 days before the meeting date to each shareholder of record entitled to vote at the meeting. The notice of an annual meeting need not state the purpose of the meeting unless these Bylaws require otherwise. The notice of a special meeting shall state the purpose for which the meeting is called. If an annual or special shareholders' meeting is adjourned to a different date, time, or location, the Corporation shall give shareholders notice of the new date, time, or location of the adjourned meeting, unless a quorum of shareholders was present at the meeting and information regarding the adjournment was announced before the meeting was adjourned; provided, however, that if a new record date is or must be fixed in accordance with Section 7.6, the Corporation must give notice of the adjourned meeting to all shareholders of record as of the new record date who are entitled to vote at the adjourned meeting. 2.5 Waiver of Notice. A shareholder may waive any notice required by the Code, the Articles of Incorporation, or these Bylaws, before or after the date and time of the matter to which the notice relates, by delivering to the Corporation a written waiver of notice signed by the shareholder entitled to the notice. In addition, a shareholder's attendance at a meeting shall be (a) a waiver of objection to lack of notice or defective notice of the meeting unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting, and (b) a waiver of objection to consideration of a particular matter at the meeting that is not within the purpose stated in the meeting notice, unless the shareholder objects to considering the matter when it is presented. Except as otherwise required by the Code, neither the purpose of nor the business transacted at the meeting need be specified in any waiver. 2.6 Voting Group; Quorum; Vote Required to Act. a. Unless otherwise required by the Code or the Articles of Incorporation, all classes or series of the Corporation's shares entitled to vote generally on a matter shall for that purpose be considered a single voting group (a "Voting Group"). If either the Articles of Incorporation or the Code requires separate voting by two or more Voting Groups on a matter, action on that matter is taken only when voted upon by each such Voting Group separately. At all meetings of shareholders, any Voting Group entitled to vote on a matter may take action on the matter only if a quorum of that Voting Group exists at the meeting, and if a quorum exists, the Voting Group may take action on the matter notwithstanding the absence of a quorum of any other Voting Group that may be entitled to vote separately on the matter. Unless the Articles of Incorporation, these Bylaws, or the Code provides otherwise, the presence (in person or by proxy) of shares representing a majority of votes entitled to be cast on a matter by a Voting Group shall constitute a quorum of that Voting Group with regard to that matter. Once a share is present at any meeting other than solely to object to holding the meeting or transacting business at the meeting, the share shall be deemed present for quorum purposes for the remainder of the meeting and for any adjournments of that meeting, unless a new record date for the adjourned meeting is or must be set pursuant to Section 7.6 of these Bylaws. b. Except as provided in Section 3.4, if a quorum exists, action on a matter by a Voting Group is approved by that Voting Group if the votes cast within the Voting Group favoring the action exceed the votes cast opposing the action, unless the Articles of Incorporation, a provision of these Bylaws that has been adopted pursuant to Section 14-2-1021 of the Code (or any successor provision), or the Code requires a greater number of affirmative votes. 2.7 Voting of Shares. Unless otherwise required by the Code or the Articles of Incorporation, each outstanding share of any class or series having voting rights shall be entitled to one vote on each matter that is submitted to a vote of shareholders. 2.8 Proxies. A shareholder entitled to vote on a matter may vote in person or by proxy pursuant to an appointment executed in writing by the shareholder or by his attorney-in-fact. An appointment of a proxy shall be valid for 11 months from the date of its execution, unless a longer or shorter period is expressly stated in the proxy. 2.9 Presiding Officer. Except as otherwise provided in this Section 2.9, the Chairman of the Board, and in his absence or disability the Chief Executive Officer, shall preside at every shareholders' meeting (and any adjournment thereof) as its chairman, if either of them is present and willing to serve. If neither the Chairman of the Board nor the Chief Executive Officer is present and willing to serve as chairman of the meeting, and if the Chairman of the Board has not designated another person who is present and willing to serve, then a majority of the Corporation's directors present at the meeting shall be entitled to designate a person to serve as chairman. If no director of the Corporation is present at the meeting or if a majority of the directors who are present cannot be established, then a chairman of the meeting shall be selected by a majority vote of (a) the shares present at the meeting that would be entitled to vote in an election of directors, or (b) if no such shares are present at the meeting, then the shares present at the meeting comprising the Voting Group with the largest number of shares present at the meeting and entitled to vote on a matter properly proposed to be considered at the meeting. The chairman of the meeting may designate other persons to assist with the meeting. 2.10 Adjournments. At any meeting of shareholders (including an adjourned meeting), a majority of shares of any Voting Group present and entitled to vote at the meeting (whether or not those shares constitute a quorum) may adjourn the meeting, but only with respect to that Voting Group, to reconvene at a specific time and place. If more than one Voting Group is present and entitled to vote on a matter at the meeting, then the meeting may be continued with respect to any such Voting Group that does not vote to adjourn as provided above, and such Voting Group may proceed to vote on any matter to which it is otherwise entitled to do so; provided, however, that if (a) more than one Voting Group is required to take action on a matter at the meeting and (b) any one of those Voting Groups votes to adjourn the meeting (in accordance with the preceding sentence), then the action shall not be deemed to have been taken until the requisite vote of any adjourned Voting Group is obtained at its reconvened meeting. The only business that may be transacted at any reconvened meeting is business that could have been transacted at the meeting that was adjourned, unless further notice of the adjourned meeting has been given in compliance with the requirements for a special meeting that specifies the additional purpose or purposes for which the meeting is called. Nothing contained in this Section 2.10 shall be deemed or otherwise .construed to limit any lawful authority of the chairman of a meeting to adjourn the meeting. 2.11 Conduct of the Meeting. At any meeting of shareholders, the chairman of the meeting shall be entitled to establish the rules of order governing the conduct of business at the meeting. 2.12 Action of Shareholders Without a Meeting. Action required or permitted to be taken at a meeting of shareholders may be taken without a meeting if the action is taken by all shareholders entitled to vote on the action or, if permitted by the Articles of Incorporation, by persons who would be entitled to vote at a meeting shares having voting power to cast the requisite number of votes (or numbers, in the case of voting by groups) that would be necessary to authorize or take the action at a meeting at which all shareholders entitled to vote were present and voted. The action must be evidenced by one or more written consents describing the action taken, signed by shareholders entitled to take action without a meeting, and delivered to the Corporation for inclusion in the minutes or filing with the corporate records. Where required by Section 14-2-704 or other applicable provision of the Code, the Corporation shall provide shareholders with written notice of actions taken without a meeting. 2.13.....Matters Considered at Annual Meetings. Notwithstanding anything to the contrary in these Bylaws, the only business that may be conducted at an annual meeting of shareholders shall be business brought before the meeting (a) by or at the direction of the Board of Directors prior to the meeting, (b) by or at the direction of the Chairman of the Board or the Chief Executive Officer, or (c) by a shareholder of the Corporation who is entitled to vote with respect to the business and who complies with the notice procedures set forth in this Section 2.13. For business to be brought properly before an annual meeting by a shareholder, the shareholder must have given timely notice of the business in writing to the Secretary of the Corporation. To be timely, a shareholder's notice must be delivered or mailed to and received at the principal offices of the Corporation not later than 60 days before the date that corresponds to the month and day of the prior year on which the Corporation first mailed its proxy materials for the prior year's annual meeting of shareholders. A shareholder's notice to the Secretary shall set forth a brief description of each matter of business the shareholder proposes to bring before the meeting and the reasons for conducting that business at the meeting; the name, as it appears on the Corporation's books, and address of the shareholder proposing the business; the series or class and number of shares of the Corporation's capital stock that are beneficially owned by the shareholder; and any material interest of the shareholder in the proposed business. The chairman of the meeting shall have the discretion. to declare to the meeting that any business proposed by a shareholder to be considered at the meeting is out of order and that such business shall not be transacted at the meeting if (i) the chairman concludes that the matter has been proposed in a manner inconsistent with this Section 2.13 or (ii) the chairman concludes that the subject matter of the proposed business is inappropriate for consideration by the shareholders at the meeting. ARTICLE Three .... Board of Directors 3.1 General Powers. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed by, the Board of Directors, subject to any limitation set forth in the Articles of Incorporation, in bylaws approved by the shareholders, or in agreements among all the shareholders that are otherwise lawful. 3.2 Number, Election and Term of Office. The number of directors of the Corporation shall be fixed by resolution of the Board of Directors from time to time and, until otherwise so fixed, shall be eight (8), and in no event shall be more than thirteen (13); provided, however, that no decrease in the number of directors shall have the effect of shortening the term of an incumbent director. Except as provided elsewhere in this Section 3.2 and in Section 3.4, the directors whose terms expire in accordance with Article Ninth of the Articles of Incorporation shall be elected at each annual meeting of shareholders, or at a special meeting of shareholders called for purposes that include the election of directors, by a plurality of the votes cast by the shares entitled to vote and present at the meeting. Despite the expiration of a director's term, he shall continue to serve until his successor, if there is to be any, has been elected and has qualified. 3.3 Removal of Directors. Subject to the rights, if any, of the holders of Preferred Stock then outstanding, any or all of the directors of the Corporation may be removed from office at any time, but only for cause, provided that directors elected by a particular Voting Group may be removed only by the shareholders in that Voting Group. Removal action may be taken only at a shareholders' meeting for which notice of the removal action has been given. A removed director's successor, if any, may be elected at the same meeting to serve the unexpired term. 3.4 Vacancies. A vacancy occurring in the Board of Directors may be filled for the unexpired term, unless the shareholders have elected a successor, by the affirmative vote of a majority of the remaining directors, whether or not the remaining directors constitute a quorum; provided, however, that if the vacant office was held by a director elected by a particular Voting Group, only the holders of shares of that Voting Group or the remaining directors elected by that Voting Group shall be entitled to fill the vacancy; provided further, however, that if the vacant office was held by a director elected by a particular Voting Group and there is no remaining director elected by that Voting Group, the other remaining directors or director (elected by another Voting Group or Groups) may fill the vacancy during an interim period before the shareholders of the vacated director's Voting Group act to fill the vacancy. A vacancy or vacancies in the Board of Directors may result from the death, resignation, disqualification, or removal of any director, or from an increase in the number of directors. 3.5 Compensation. Directors may receive such compensation for their services as directors as may be fixed by the Board of Directors from time to time. A director may also serve the Corporation in one or more capacities other than that of director and receive compensation for services rendered in those other capacities. 3.6 Committees of the Board of Directors. The Board of Directors may designate from among its members an executive committee or one or more other standing or ad hoc committees, each consisting of one or more directors, who serve at the pleasure of the Board of Directors. Subject to the limitations imposed by the Code, each committee shall have the authority set forth in the resolution establishing the committee or in any other resolution of the Board of Directors specifying, enlarging, or limiting the authority of the committee. 3.7 Qualification of Directors. No person elected to serve as a director of the Corporation shall assume office and begin serving unless and until duly qualified to serve, as determined by reference to the Code, the Articles of Incorporation, and any further eligibility requirements established in these Bylaws. 3.8 Certain Nomination Requirements. No person may be nominated for election as a director at any annual or special meeting of shareholders unless (a) the nomination has been or is being made pursuant to a recommendation or approval of the Board of Directors of the Corporation or a properly constituted committee of the Board of Directors previously delegated authority to recommend or approve nominees for director; (b) the person is nominated by a shareholder of the Corporation who is entitled to vote for the election of the nominee at the subject meeting, and the nominating shareholder has furnished written notice to the Secretary of the Corporation, at the Corporation's principal office, not later than 60 days before the date that corresponds to the month and day of the prior year on which the Corporation first mailed its proxy materials for the prior year's annual meeting of shareholders, and the notice (i) sets forth with respect to the person to be nominated his or her name, age, business and residence addresses, principal business or occupation during the past five years, any affiliation with or material interest in the Corporation or any transaction involving the Corporation, and any affiliation with or material interest in any person or entity having an interest materially adverse to the Corporation, and (ii) is accompanied by the sworn or certified statement of the shareholder that the nominee has consented to being nominated and that the shareholder believes the nominee will stand for election and will serve if elected; or (c) (i) the person is nominated to replace a person previously identified as a proposed nominee (in accordance with the provisions of subpart (b) of this Section 3.8) who has since become unable or unwilling to be nominated or to serve if elected, (ii) the shareholder who furnished such previous identification makes the replacement nomination and delivers to the Secretary of the Corporation (at the time of or prior to making the replacement nomination) an affidavit or other sworn statement affirming that the shareholder had no reason to believe the original nominee would be so unable or unwilling, and (iii) such shareholder also furnishes in writing to the Secretary of the Corporation (at the time of or prior to making the replacement nomination) the same type of information about the replacement nominee as required by subpart (b) of this Section 3.8 to have been furnished about the original nominee. The chairman of any meeting of shareholders at which one or more directors are to be elected, for good cause shown and with proper regard for the orderly conduct of business at the meeting, may waive in whole or in part the operation of this Section 3.8. ARTICLE Four ..... Meetings of the Board of Directors 4.1 Regular Meetings. A regular meeting of the Board of Directors shall be held in conjunction with each annual meeting of shareholders. In addition, the Board of Directors may, by prior resolution, hold regular meetings at other times. 4.2 Special Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board, the Chief Executive Officer, or any two directors in office at that time. 4.3 Place of Meetings. Directors may hold their meetings at any place in or outside the State of Georgia that the Board of Directors may establish from time to time. 4.4 Notice of Meetings. Directors need not be provided with notice of any regular meeting of the Board of Directors. Unless waived in accordance with Section 4.10, the Corporation shall give at least two days' notice to each director of the date, time, and place of each special meeting. Notice of a meeting shall be deemed to have been given to any director in attendance at any prior meeting at which the date, time, and place of the subsequent meeting was announced. 4.5 Quorum. At meetings of the Board of Directors, a majority of the directors then in office shall constitute a quorum for the transaction of business. 4.6 Vote Required for Action. If a quorum is present when a vote is taken, the vote of a majority of the directors present at the time of the vote will be the act of the Board of Directors, unless the vote of a greater number is required by the Code, the Articles of Incorporation, or these Bylaws. A director who is present at a meeting of the Board of Directors when corporate action is taken is deemed to have assented to the action taken unless (a) he objects at the beginning of the meeting (or promptly upon his arrival) to holding the meeting or transacting business at it; (b) his dissent or abstention from the action taken is entered in the minutes of the meeting; or (c) he delivers written notice of his dissent or abstention to the presiding officer of the meeting before its adjournment or to the Corporation immediately after adjournment of the meeting. The right of dissent or abstention is not available to a director who votes in favor of the action taken. 4.7 Participation by Conference Telephone. Members of the Board of Directors may participate in a meeting of the Board by means of conference telephone or similar communications equipment through which all persons participating may hear and speak to each other. Participation in a meeting pursuant to this Section 4.7 shall constitute presence in person at the meeting. 4.8 Action by Directors Without a Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if a written consent, describing the action taken, is signed by each director and delivered to the Corporation for inclusion in the minutes or filing with the corporate records. The consent may be executed in counterparts, and shall have the same force and effect as a unanimous vote of the Board of Directors at a duly convened meeting. 4.9 Adjournments. A meeting of the Board of Directors, whether or not a quorum is present, may be adjourned by a majority of the directors present to reconvene at a specific time and place. It shall not be necessary to give notice to the directors of the reconvened meeting or of the business to be transacted, other than by announcement at the meeting that was adjourned, unless a quorum was not present at the meeting that was adjourned, in which case notice shall be given to directors in the same manner as for a special meeting. At any such reconvened meeting at which a quorum is present, any business may be transacted that could have been transacted at the meeting that was adjourned. 4.10 Waiver of Notice. A director may waive any notice required by the Code, the Articles of Incorporation, or these Bylaws before or after the date and time of the matter to which the notice relates, by a written waiver signed by the director and delivered to the Corporation for inclusion in the minutes or filing with the corporate records. Attendance by a director at a meeting shall constitute waiver of notice of the meeting except where a director at the beginning of the meeting (or promptly upon his arrival) objects to holding the meeting or to transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. ARTICLE Five ..... Officers 5.1 Offices. The officers of the Corporation shall consist of a President, a Secretary, and a Treasurer, and may include a Chief Executive Officer separate from the President, each of whom shall be elected or appointed by the Board of Directors. The Board of Directors may also elect a Chairman of the Board from among its members. The Board of Directors from time to time may, or may authorize the Chief Executive Officer to, create and establish the duties of other offices and may, or may authorize the Chief Executive Officer to, elect or appoint, or authorize specific senior officers to appoint, the persons who shall hold such other offices, including one or more Vice Presidents (including Executive Vice Presidents, Senior Vice Presidents, Assistant Vice Presidents, and the like), one or more Assistant Secretaries, and one or more Assistant Treasurers. Whether or not so provided by the Board of Directors, the Chairman of the Board or the Chief Executive Officer may appoint one or more Assistant Secretaries and one or more Assistant Treasurers. Any two or more offices may be held by the same person. 5.2 Term. Each officer shall serve at the pleasure of the Board of Directors (or, if appointed by the Chief Executive Officer or a senior officer pursuant to this Article Five, at the pleasure of the Board of Directors, the Chief Executive Officer, or the senior officer authorized to have appointed the officer) until his death, resignation, or removal, or until his replacement is elected or appointed in accordance with this Article Five. 5.3 Compensation. The compensation of all officers of the Corporation shall be fixed by the Board of Directors or by a committee or officer appointed by the Board of Directors. Officers may serve without compensation. 5.4 Removal. All officers (regardless of how elected or appointed) may be removed, with or without cause, by the Board of Directors, and any officer appointed by the Chief Executive Officer or another senior officer may also be removed, with or without cause, by the Chief Executive Officer or by any senior officer authorized to have appointed the officer to be removed. Removal will be without prejudice to the contract rights, if any, of the person removed, but shall be effective notwithstanding any damage claim that may result from infringement of such contract rights. 5.5 Chairman of the Board. The Chairman of the Board (if there be one) shall preside at and serve as chairman of meetings of the shareholders and of the Board of Directors (unless another person is selected under Section 2.9 to act as chairman). The Chairman of the Board shall perform other duties and have other authority as may from time to time be delegated by the Board of Directors. 5.6 Chief Executive Officer. The Chief Executive Officer (if there be one) shall be charged with the general and active management of the Corporation, shall see that all orders and resolutions of the Board of Directors are carried into effect, shall have the authority to select and appoint employees and agents of the Corporation, and shall, in the absence or disability of the Chairman of the Board, perform the duties and exercise the powers of the Chairman of the Board. The Chief Executive Officer shall perform any other duties and have any other authority as may be delegated from time to time by the Board of Directors, and shall be subject to the limitations fixed from time to time by the Board of Directors. 5.7 President. If there shall be no separate Chief Executive officer of the Corporation, then the President shall be the chief executive officer of the Corporation and shall have all the duties and authority given under these Bylaws to the Chief Executive Officer. The President shall otherwise be the chief operating officer of the Corporation and shall, subject to the authority of the Chief Executive Officer, have responsibility for the conduct and general supervision of the business operations of the Corporation. The President shall perform such other duties and have such other authority as may from time to time be delegated by the Board of Directors or the Chief Executive Officer. In the absence or disability of the Chief Executive Officer, the President shall perform the duties and exercise the powers of the Chief Executive Officer. 5.8 Vice Presidents. The Vice President (if there be one) shall, in the absence or disability of the President, perform the duties and exercise the powers of the President, whether the duties and powers are specified in these Bylaws or otherwise. If the Corporation has more than one Vice President, the one designated by the Board of Directors or the Chief Executive Officer (in that order of precedence) shall act in the event of the absence or disability of the President. Vice Presidents shall perform any other duties and have any other authority as from time to time may be delegated by the Board of Directors, the Chief Executive Officer, or the President. 5.9 Secretary. The Secretary shall be responsible for preparing minutes of the meetings of shareholders, directors, and committees of directors and for authenticating records of the Corporation. The Secretary or any Assistant Secretary shall have authority to give all notices required by law or these Bylaws. The Secretary shall be responsible for the custody of the corporate books, records, contracts, and other documents. The Secretary or any Assistant Secretary may affix the corporate seal to any lawfully executed documents requiring it, may attest to the signature of any officer of the Corporation, and shall sign any instrument that requires the Secretary's signature. The Secretary or any Assistant Secretary shall perform any other duties and have any other authority as from time to time may be delegated by the Board of Directors, the Chief Executive Officer, or the President. 5.10 Treasurer. Unless otherwise provided by the Board of Directors, the Treasurer shall be responsible for the custody of all funds and securities belonging to the Corporation and for the receipt, deposit, or disbursement of these funds and securities under the direction of the Board of Directors. The Treasurer shall cause full and true accounts of all receipts and disbursements to be maintained and shall make reports of these receipts and disbursements to the Board of Directors, the Chief Executive Officer and President upon request. The Treasurer or Assistant Treasurer shall perform any other duties and have any other authority as from time to time may be delegated by the Board of Directors, the Chief Executive Officer, or the President. ARTICLE Six ...... Distributions and Dividends Unless the Articles of Incorporation provide otherwise, the Board of Directors, from time to time in its discretion, may authorize or declare distributions or share dividends in accordance with the Code. ARTICLE Seven .... Shares 7.1 Share Certificates. The interest of each shareholder in the Corporation shall be evidenced by a certificate or certificates representing shares of the Corporation, which shall be in such form as the Board of Directors from time to time may adopt in accordance with the Code. Share certificates shall be in registered form and shall indicate the date of issue, the name of the Corporation, that the Corporation is organized under the laws of the State of Georgia, the name of the shareholder, and the number and class of shares and designation of the series, if any, represented by the certificate. Each certificate shall be signed by the President or a Vice President (or in lieu thereof, by the Chairman of the Board or Chief Executive Officer, if there be one) and may be signed by the Secretary or an Assistant Secretary; provided, however, that where the certificate is signed (either manually or by facsimile) by a transfer agent, or registered by a registrar, the signatures of those officers may be facsimiles. 7.2 Rights of Corporation with Respect to Registered Owners. Prior to due presentation for transfer of registration of its shares, the Corporation may treat the registered owner of the shares (or the beneficial owner of the shares to the extent of any rights granted by a nominee certificate on file with the Corporation pursuant to any procedure that may be established by the Corporation in accordance with the Code) as the person exclusively entitled to vote the shares, to receive any dividend or other distribution with respect to the shares, and for all other purposes; and the Corporation shall not be bound to recognize any equitable or other claim to or interest in the shares on the part of any other person, whether or not it has express or other notice of such a claim or interest, except as otherwise provided by law. 7.3 Transfers of Shares. Transfers of shares shall be made upon the books of the Corporation kept by the Corporation or by the transfer agent designated to transfer the shares, only upon direction of the person named in the certificate or by an attorney lawfully constituted in writing. Before a new certificate is issued, the old certificate shall be surrendered for cancellation or, in the case of a certificate alleged to have been lost, stolen, or destroyed, the provisions of Section 7.5 of these Bylaws shall have been complied with. 7.4 Duty of Corporation to Register Transfer. Notwithstanding any of the provisions of Section 7.3 of these Bylaws, the Corporation is under a duty to register the transfer of its shares only if: (a) the share certificate is endorsed by the appropriate person or persons; (b) reasonable assurance is given that each required endorsement is genuine and effective; (c) the Corporation has no duty to inquire into adverse claims or has discharged any such duty; (d) any applicable law relating to the collection of taxes has been complied with; (e) the transfer is in fact rightful or is to a bona fide purchaser; and (f) the transfer is in compliance with applicable provisions of any transfer restrictions of which the Corporation shall have notice. 7.5 Lost, Stolen, or Destroyed Certificates. Any person claiming a share certificate to be lost, stolen, or destroyed shall make an affidavit or affirmation of this claim in such a manner as the Corporation may require and shall, if the Corporation requires, give the Corporation a bond of indemnity in form and amount, and with one or more sureties satisfactory to the Corporation, as the Corporation may require, whereupon an appropriate new certificate may be issued in lieu of the one alleged to have been lost, stolen or destroyed. 7.6 Fixing of Record Date. For the purpose of determining shareholders (a) entitled to notice of or to vote at any meeting of shareholders or, if necessary, any adjournment thereof, (b) entitled to receive payment of any distribution or dividend, or (c) for any other proper purpose, the Board of Directors may fix in advance a date as the record date. The record date may not be more than 70 days (and, in the case of a notice to shareholders of a shareholders' meeting, not less than 10 days) prior to the date on which the particular action, requiring the determination of shareholders, is to be taken. A separate record date may be established for each Voting Group entitled to vote separately on a matter at a meeting. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting, unless the Board of Directors shall fix a new record date for the reconvened meeting, which it must do if the meeting is adjourned to a date more than 120 days after the date fixed for the original meeting. 7.7 Record Date if None Fixed. If no record date is fixed as provided in Section 7.6, then the record date for any determination of shareholders that may be proper or required by law shall be, as appropriate, the date on which notice of a shareholders' meeting is mailed, the date on which the Board of Directors adopts a resolution declaring a dividend or authorizing a distribution, or the date on which any other action is taken that requires a determination of shareholders. ARTICLE Eight .... Indemnification 8.1 Indemnification of Directors. The Corporation shall indemnify and hold harmless any person (an "Indemnified Person") who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (including any action or suit by or in the right of the corporation) by reason of the fact that he is or was a director of the corporation, against expenses (including, but not limited to, attorney's fees and disbursements, court costs and expert witness fees), and against any judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding; provided, that no indemnification shall be made in respect of (a) expenses, judgments, fines and amounts paid in settlement attributable to (i) any appropriation, in violation of such person's duty to the corporation, of any business opportunity of the corporation, (ii) acts or omissions not in good faith or which involved intentional misconduct or a knowing violation of law, (iii) liability under Section 14-2-832 of the Georgia Business Corporation Code, and (iv) any transaction from which such person derived an improper personal benefit, or (b) any other judgments, fines and amounts paid in settlement to the extent that such amounts do not exceed liability limits, if any, set forth in the corporation's articles of incorporation. 8.2 Indemnification of Officers and Others. a. The Board of Directors shall have the power to cause the Corporation to provide to officers, employees, and agents of the Corporation all or any part of the right to indemnification and other rights of the type provided under Sections 8.1, 8.5, and 8.11 of this Article Eight (subject to the conditions, limitations, and obligations specified therein, but not subject however to the limitation imposed under clause (b) of Section 8.1 of this Article Eight), upon a resolution to that effect identifying officers, employees, or agents (by position or name) and specifying the particular rights provided, which may be different for each of the officers, employees and agents identified. Each officer, employee, or agent of the Corporation so identified shall be an "Indemnified Person" for purposes of the provisions of this Article Eight. b. The Corporation shall indemnify and hold harmless each officer identified as an executive officers in the Corporation's reports and filings with the United States Securities and Exchange Commission (an "Executive Officer") who was or is a party, or is threatened to be made a party, to any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (including any action or suit by or in the right of the corporation) by reason of the fact that he is or was an officer or agent of the corporation, against expenses (including, but not limited to, attorney's fees and disbursements, court costs and expert witness fees), and against any judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding; provided, that no indemnification shall be made in respect of expenses, judgments, fines and amounts paid in settlement attributable to (i) any appropriation, in violation of such person's duty to the corporation, of any business opportunity of the corporation, (ii) acts or omissions not in good faith or which involved intentional misconduct or a knowing violation of law, (iii) liability under Section 14-2-832 of the Georgia Business Corporation Code, and (iv) any transaction from which such person derived an improper personal benefit. Each Executive Officer shall be an "Indemnified Person" for purposes of the provisions of this Article Eight. 8.3 Subsidiaries. The Board of Directors shall have the power to cause the Corporation to provide to any director, officer, employee, or agent of the Corporation who also is a director, officer, trustee, general partner, employee, or agent of a Subsidiary (as defined below), all or any part of the right to indemnification and other rights of the type provided under Sections 8.1, 8.2, 8.5, and 8.11 of this Article Eight (subject to the conditions, limitations, and obligations specified therein with regard to amounts actually and reasonably incurred by such person by reason of the fact that he is or was a director, officer, trustee, general partner, employee or agent of the Subsidiary. The Board of Directors shall exercise such power, if at all, through a resolution identifying the person or persons to be indemnified (by position or name) and the Subsidiary (by name or other classification), and specifying the particular rights provided, which may be different for each of the directors, officers, employees and agents identified. Each person so identified shall be an "Indemnified Person" for purposes of the provisions of this Article Nine. As used in this Article Nine, "Subsidiary" shall mean (i) another corporation, joint venture, trust, partnership or unincorporated business association more than twenty percent (20%) of the voting capital stock or other voting equity interest of which was, at or after the time the circumstances giving rise to such action, suit or proceeding arose, owned, directly or indirectly, by the corporation, or (ii) a nonprofit corporation which receives its principal financial support from the corporation or its subsidiaries. 8.4 Determination. Notwithstanding any judgment, order, settlement, conviction, or plea in any action, suit or proceeding of the kind referred to in Section 8.1 of this Article Eight, an Indemnified Person shall be entitled to indemnification as provided in such Section 8.1 unless a determination that such Indemnified Person is not entitled to such indemnification (because of the applicability of clause (a) or (b) of such Section 8.1) shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who are not seeking the benefits of such indemnification; or (ii) if such quorum is not obtainable, or, even if obtainable if a quorum of such disinterested directors so directs, in a written opinion by independent legal counsel (which counsel may be the outside legal counsel regularly employed or retained by the corporation); or (iii) if a quorum cannot be obtained under (i) above and in the absence of a written opinion by independent legal counsel by majority vote or consent of a committee duly designated by the Board of Directors (in which designation interested directors may participate), consisting solely of one or more directors who are not seeking the benefit of such indemnification. Provided, however, that notwithstanding any determination pursuant to the preceding sentence, if such determination shall have been made at a time that the members of the Board of Directors, so serving when the events upon which such Indemnified Person's liability has been based occurred, no longer constitute a majority of the members of the Board of Directors, then such Indemnified Person shall nonetheless be entitled to indemnification as set forth in such Section 8.1 unless the Company shall carry the burden of proving, in an action before any court of competent jurisdiction, that such Indemnified Person is not entitled to indemnification because of the applicability of clause (a) or (b) of such Section 8.1. 8.5 Advances. Expenses (including, but not limited to, attorneys' fees and disbursements, court costs, and expert witness fees) incurred by the Indemnified Person in defending any action, suit or proceeding of the kind described in Section 8.1 or 8.2 hereof shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding only upon: (i) the Indemnified Person delivering the affirmation and the undertaking described in subparagraph (c) of Section 856 of the Code (whether or not such Indemnified Person is a director), and (ii) the Board of Directors shall not have made a determination, (any such determination to be made in the manner described in Section 8.4 of these Bylaws), that the person seeking indemnification is not entitled to indemnification because such person's conduct constitutes behavior of the type described in either clauses (a) or (b) of Section 8.1 of these Bylaws or clauses (i), (ii), (iii) or (iv) of Section 8.2(b) of these Bylaws. The Corporation may make the advances contemplated by this Section 8.5 regardless of the Indemnified Person's financial ability to make repayment. Advances and undertakings to repay pursuant to this Section 8.5 shall be on such terms and conditions as the Board of Directors shall determine from time to time, and may be unsecured and interest-free. 8.6 Non-Exclusivity; Continuing Benefits. The indemnification and advancement of expenses provided by this Article Eight shall not be deemed exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under any provision of the Articles of Incorporation, or any Bylaw, resolution, agreement, vote of shareholders or disinterested directors or otherwise, both as to actions in his official capacity and as to actions in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent of the corporation, as the case may be, and shall inure to the benefit of the heirs, executors and administrators of such a person. 8.7 Insurance. The Corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, trustee, general partner, employee, or agent of another corporation, nonprofit corporation, joint venture, trust, partnership, unincorporated business association or other enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article Eight. 8.8 Notice. If any expenses or other amounts are paid by way of indemnification, otherwise than by court order or action by the shareholders or by an insurance carrier pursuant to insurance maintained by the corporation, the corporation shall, not later than the next annual meeting of shareholders, unless such meeting is held within three (3) months from the date of such payment, and in any event, within fifteen (15) months from the date of such payment, send by first class mail to its shareholders of record at the time entitled to vote for the election of directors a statement specifying the persons paid, the amount paid and the nature and status at the time of such payment of the litigation or threatened litigation. 8.9 Security. The Corporation may designate certain of its assets as collateral, provide self-insurance or otherwise secure its obligations under this Article Eight, or under any indemnification agreement or plan of indemnification adopted and entered into in accordance with the provisions of this Article Eight, as the Board of Directors deems appropriate. 8.10 Amendment. Any amendment to this Article Eight that limits or otherwise adversely affects the right of indemnification, advancement of expenses, or other rights of any Indemnified Person hereunder shall, as to such Indemnified Person, apply only to claims, actions, or proceedings based on actions, events, or omissions (collectively, "Post Amendment Events") occurring after such amendment and after delivery of notice of such amendment to the Indemnified Person so affected. Any Indemnified Person shall, as to any claim, action, suit or proceeding based on actions, events, or omissions occurring prior to the date of receipt of such notice, be entitled to the right of indemnification, advancement of expenses, and other rights under this Article Eight to the same extent as had such provisions continued as part of the Bylaws of the Corporation without such amendment. This Section 8.10 cannot be altered, amended, or repealed in a manner effective as to any Indemnified Person (except as to Post Amendment Events) without the prior written consent of such Indemnified Person. The Board of Directors may not alter, amend or repeal any provision of this Article Eight in a manner that extends or enlarges the right of any person to indemnification or advancement of expenses hereunder, except with the approval of the holders of a majority of all the shares of capital stock of the corporation entitled to vote thereon at a meeting called for such purpose. 8.11 Agreements. The provisions of this Article Eight shall be deemed to constitute an agreement between the Corporation and each Person entitled to indemnification hereunder. In addition to the rights provided in this Article Eight, the Corporation shall have the power, upon authorization by the Board of Directors, to enter into an agreement or agreements providing to any person who is or was a director, officer, employee or agent of the Corporation indemnification rights substantially similar to those provided in this Article Eight. 8.12 Successors. For purposes of this Article Eight, the terms "Corporation" or "this Corporation" shall include any corporation, joint venture, trust, partnership, or unincorporated business association which is the successor to all or substantially all of the business or assets of this Corporation, as a result of merger, consolidation, sale, liquidation, or otherwise, and any such successor shall be liable to the persons indemnified under this Article Eight on the same terms and conditions and to the same extent as this Corporation. 8.13 Additional Indemnification. In addition to the specific indemnification rights set forth herein, the Corporation shall indemnify each of its directors and officers to the full extent permitted by action of the Board of Directors without shareholder approval under the Code or other laws of the State of Georgia as in effect from time to time. ARTICLE Nine ..... Miscellaneous 9.1 Inspection of Books and Records. The Board of Directors shall have the power to determine which accounts, books, and records of the Corporation shall be available for shareholders to inspect or copy, except for those books and records required by the Code to be made available upon compliance by a shareholder with applicable requirements, and shall have the power to fix reasonable rules and regulations (including confidentiality restrictions and procedures) not in conflict with applicable law for the inspection and copying of accounts, books, and records that by law or by determination of the Board of Directors are made available. Unless required by the Code or otherwise provided by the Board of Directors, a shareholder of the Corporation holding less than two percent (2%) of the total shares of the Corporation then outstanding shall have no right to inspect the books and records of the Corporation. 9.2 Fiscal Year. The Board of Directors is authorized to fix the fiscal year of the Corporation and to change the fiscal year from time to time as it deems appropriate. 9.3 Corporate Seal. The corporate seal will be in such form as the Board of Directors may from time to time determine. The Board of Directors may authorize the use of one or more facsimile forms of the corporate seal. The corporate seal need not be used unless its use is required by law, by these Bylaws, or by the Articles of Incorporation. 9.4 Annual Statements. Not later than four months after the close of each fiscal year, and in any case prior to the next annual meeting of shareholders, the Corporation shall prepare (a) a balance sheet showing in reasonable detail the financial condition of the Corporation as of the close of its fiscal year, and (b) a profit and loss statement showing the results of its operations during its fiscal year. Upon receipt of written request, the Corporation promptly shall mail to any shareholder of record a copy of the most recent such balance sheet and profit and loss statement, in such form and with such information as the Code may require. 9.5 Notice. a. Whenever these Bylaws require notice to be given to any shareholder or to any director, the notice may be given by mail, in person, by courier delivery, by telephone, or by telecopier, telegraph, or similar electronic means. Whenever notice is given to a shareholder or director by mail, the notice shall be sent by depositing the notice in a post office or letter box in a postage-prepaid, sealed envelope addressed to the shareholder or director at his or her address as it appears on the books of the Corporation. Any such written notice given by mail shall be effective: (i) if given to shareholders, at the time the same is deposited in the United States mail; and (ii) in all other cases, at the earliest of (x) when received or when delivered, properly addressed, to the addressee's last known principal place of business or residence, (y) five days after its deposit in the mail, as evidenced by the postmark, if mailed with first-class postage prepaid and correctly addressed, or (z) on the date shown on the return receipt, if sent by registered or certified mail, return receipt requested, and the receipt is signed by or on behalf of the addressee. Whenever notice is given to a shareholder or director by any means other than mail, the notice shall be deemed given when received. b. In calculating time periods for notice, when a period of time measured in days, weeks, months, years, or other, measurement of time is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted. ARTICLE Ten ...... Amendments Except as otherwise provided under the Code or in Article 8 hereof, the Board of Directors shall have the power to alter, amend, or repeal these Bylaws or adopt new Bylaws. Any Bylaws adopted by the Board of Directors may be altered, amended, or repealed, and new Bylaws adopted, by the shareholders. The shareholders may prescribe in adopting any Bylaw or Bylaws that the Bylaw or Bylaws so adopted shall not be altered, amended, or repealed by the Board of Directors. EX-5 4 LEGAL OPINION EXHIBIT 5.1 LAW OFFICES Nelson Mullins Riley & Scarborough, L.L.P. A REGISTERED LIMITED LIABILITY PARTNERSHIP 999 PEACHTREE STREET, N.E. OTHER OFFICES: FIRST UNION PLAZA Charleston, South Carolina SUITE 1400 Charlotte, North Carolina Atlanta, Georgia 30309 Columbia, South Carolina TELEPHONE (404) 817-6000 Greenville, South Carolina FACSIMILE (404) 817-6050 Myrtle Beach, South Carolina www.nmrs.com May 19, 1999 Immucor, Inc. 3130 Gateway Drive Norcross, Georgia 30091 Ladies and Gentlemen: We have acted as counsel to Immucor, Inc. (the "Company") in connection with the filing of a Registration Statement on Form S-3 (the "Registration Statement") under the Securities Act of 1933, covering the offering of up to 628,417 shares (the "Shares") of the Company's common stock, no par value per share by the selling shareholders named in the Registration Statement. The selling shareholders may acquire the Shares upon the exercise of warrants that the Company issued to them in connection with the acquisition by the Company of Dominion Biologicals, Ltd. (the "Warrants"). In connection therewith, we have examined such corporate records, certificates of public officials and other documents and records as we have considered necessary or proper for the purpose of this opinion. This opinion is limited by and is in accordance with, the January 1, 1992, edition of the Interpretive Standards applicable to Legal Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion Committee of the Corporate and Banking Law Section of the State Bar of Georgia, which is incorporated herein by reference. Based on the foregoing, and having regard to legal considerations which we deem relevant, we are of the opinion that the issuance of the Shares has been duly authorized, and the Shares, when issued and delivered upon the exercise of the Warrants, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the caption "Legal Matters" in the Prospectus contained in the Registration Statement. Very truly yours, NELSON MULLINS RILEY & SCARBOROUGH, L.L.P. By: /s/ Philip H. Moise Philip H. Moise Partner EX-23 5 CONSENT OF INDEPENDENT AUDITORS CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of Immucor, Inc. for the registration of 628,417 shares of its common stock and to the incorporation by reference therein of our report dated July 13, 1998, except for the last two sentences of the fourth paragraph of Note 5 as to which the date is July 31, 1998, with respect to the consolidated financial statements and schedule of Immucor, Inc. included in its Annual Report (Form 10-K) for the year ended May 31, 1998, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Ernst & Young LLP Atlanta, GA May 18, 1999 -----END PRIVACY-ENHANCED MESSAGE-----