As filed with the Securities and Exchange Commission on March 29, 2004
Registration No. 333-_______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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HEMACARE CORPORATION
(Exact name of registrant as specified in its charter)
California 95-3280412
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
21101 Oxnard Street
Woodland Hills, California 91367
(Address of principal executive offices) (Zip Code)
1996 STOCK INCENTIVE PLAN
(Full title of the plan)
Robert S. Chilton
Chief Financial Officer
HemaCare Corporation
21101 Oxnard Street
Woodland Hills, California 91367
(Name and address of agent for service)
(818) 226-1968
(Telephone number, including area code, of agent for service)
Copy to:
Charles S. Kaufman, Esq.
Sheppard, Mullin, Richter & Hampton LLP
333 South Hope Street, 48th Floor
Los Angeles, California 90071
(213) 620-1780
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of each class of Amount to be registered offering price per aggregate offering Amount of registration
securities to be registered (1) share (2) (2) fee (2)
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Common Stock, without par 1,250,000 shares $0.485 $606,250 $77
value
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(1) In addition, this Registration Statement also covers such indeterminate
number of shares of Common Stock as may be issued pursuant to the employee
benefit plan described herein as a result of the adjustment provisions
thereof.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in the
aggregate, and the registration fee were calculated based upon the average
of the high and low prices of the Common Stock as of March 24, 2004, as
reported by the National Association of Securities Dealers OTCBB.
EXPLANATORY NOTE
HemaCare Corporation (the "Company") hereby files this Registration Statement on
Form S-8 with the Securities and Exchange Commission (the "Commission") to
register 1,250,000 additional shares of the Company's Common Stock for issuance
pursuant to the Company's 1996 Stock Incentive Plan (the "Plan"), and such
indeterminate number of additional shares as may become available under the Plan
as a result of the adjustment provisions thereof. On June 29, 1998, the
shareholders of the Company approved an amendment of the Plan, which increased
from 750,000 to 1,400,000 the number of shares available for issuance pursuant
to the Plan. On June 15, 2000, the shareholders of the Company approved an
amendment of the Plan, which increased from 1,400,000 to 2,000,000 the number of
shares available for issuance pursuant to the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will
be sent or given to participants in the Plan of the Company as specified by Rule
428(b)(1) promulgated by the Commission pursuant to the Securities Act of 1933,
as amended (the "Securities Act"). These documents need not be filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Securities Act Rule 424 in accordance with
the Note to Part I of Form S-8. These documents, and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Form S-8,
taken together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, previously filed by the Company with the
Commission, are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for its fiscal year
ended December 31, 2003, filed with the Commission on March 25, 2004;
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, since the end of the
fiscal year covered by the annual report referred to in (a) above; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, dated December 5, 1986,
filed with the Commission, and any amendment or report filed for the
purpose of updating such description.
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All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment that
indicates that all securities offered hereby have been sold or that deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any information that is furnished in any document
incorporated or deemed to be incorporated by reference herein, but that is not
deemed "filed" under the Securities Act or the Exchange Act, is not incorporated
by reference herein. Any statement contained herein or in a document, all or a
portion of which is incorporated or deemed to be incorporated by reference
herein, shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or amended, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 204 of the General Corporation Law of the State of California
(the "California Law") permits the limitation of the personal liability of a
director for monetary damages in an action brought by or in the right of the
corporation for breach of a director's duties to the corporation and its
shareholders under certain conditions and subject to certain limitations.
Section 317 of the California Law (i) permits indemnification of
directors, officers, employees and other agents of the corporation under certain
conditions and subject to certain limitations and (ii) provides that the
corporation has the power to purchase and maintain insurance on behalf of its
directors, officers, employees and other agents against any liability asserted
against or incurred by them in such capacity or arising out of their status as
such.
Article Five of the Restated Articles of Incorporation of the
Registrant provides as follows:
(a) Limitation of Directors' Liability. The liability of the
directors of the corporation for monetary damages shall be eliminated
to the fullest extent permissible under California law.
(b) Indemnification of Corporate Agents. The corporation is
authorized to provide, whether by bylaw, agreement or resolution of the
board of directors or shareholders of the corporation, for the
indemnification of agents (as defined in Section 317 of the California
General Corporation Law) of the corporation in excess of that expressly
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permitted by such Section 317, for breach of duty to the corporation
and its shareholders to the fullest extent permissible under California
law.
(c) Repeal or Modification. Any repeal or modification of this
Article Five by the shareholders of the corporation shall not adversely
affect any right or protection of a director or agent of the
corporation existing at the time of such repeal or modification.
Article VI of the Bylaws of the Company provides as follows:
Section 6.1 INDEMNIFICATION - THIRD PARTY PROCEEDINGS. The corporation
shall indemnify any person (the "Indemnitee") who is or was a party or
is threatened to be made a party to any proceeding (other than an
action by or in the right of the corporation to procure a judgment in
its favor) by reason of the fact that Indemnitee is or was a director
or officer of the corporation, or any subsidiary of the corporation,
and the corporation may indemnify a person who is or was a party or is
threatened to be made a party to any proceeding (other than an action
by or in the right of the corporation to procure a judgment in its
favor) by reason of the fact that such person is or was an employee or
other agent of the corporation (the "Indemnitee Agent") by reason of
any action or inaction on the part of Indemnitee or Indemnitee Agent
while an officer, director or agent or by reason of the fact that
Indemnitee or Indemnitee Agent is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including subject to Section 6.19, attorneys' fees
and any expenses of establishing a right to indemnification pursuant to
this Article VI or under California law), judgments, fines, settlements
(if such settlement is approved in advance by the corporation, which
approval shall not be unreasonably withheld) and other amounts actually
and reasonably incurred by Indemnitee or Indemnitee Agent in connection
with such proceeding if Indemnitee or Indemnitee Agent acted in good
faith and in a manner Indemnitee or Indemnitee Agent reasonably
believed to be in or not opposed to the best interests of the
corporation and, in the case of a criminal proceeding, if Indemnitee or
Indemnitee Agent had no reasonable cause to believe Indemnitee's or
Indemnitee Agent's conduct was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a
presumption that Indemnitee or Indemnitee Agent did not act in good
faith and in a manner which Indemnitee or Indemnitee Agent reasonably
believed to be in or not opposed to the best interests of the
corporation, or with respect to any criminal proceedings, would not
create a presumption that Indemnitee or Indemnitee Agent had reasonable
cause to believe that Indemnitee's or Indemnitee Agent's conduct was
unlawful.
Section 6.2 INDEMNIFICATION - PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION. The corporation shall indemnify Indemnitee and may
indemnify Indemnitee Agent if Indemnitee, or Indemnitee Agent, as the
case may be, was or is a party or is threatened to be made a party to
any threatened, pending or completed action by or in the right of the
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corporation or any subsidiary of the corporation to procure a judgment
in its favor by reason of the fact that Indemnitee or Indemnitee Agent
is or was a director, officer, employee or other agent of the
corporation, or any subsidiary of the corporation, by reason of any
action or inaction on the part of Indemnitee or Indemnitee Agent while
an officer, director or agent or by reason of the fact that Indemnitee
or Indemnitee Agent is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including subject to Section 6.19, attorneys' fees and any expenses of
establishing a right to indemnification pursuant to this Article VI or
under California law) and, to the fullest extent permitted by law,
amounts paid in settlement, in each case to the extent actually and
reasonably incurred by Indemnitee or Indemnitee Agent in connection
with the defense or settlement of the proceeding if Indemnitee or
Indemnitee Agent acted in good faith and in a manner Indemnitee or
Indemnitee Agent believed to be in or not opposed to the best interests
of the corporation and its shareholders, except that no indemnification
shall be made with respect to any claim, issue or matter to which
Indemnitee or Indemnitee Agent shall have been adjudged to have been
liable to the corporation in the performance of Indemnitee's or
Indemnitee Agent's duty to the corporation and its shareholders, unless
and only to the extent that the court in which such proceeding is or
was pending shall determine upon application that, in view of all the
circumstances of the case, Indemnitee or Indemnitee Agent is fairly and
reasonably entitled to indemnity for expenses and then only to the
extent that the court shall determine.
Section 6.3 SUCCESSFUL DEFENSE ON MERITS. To the extent that Indemnitee
or Indemnitee Agent without limitation has been successful on the
merits in defense of any proceeding referred to in Sections 6.1 or 6.2
above, or in defense of any claim, issue or matter therein, the
corporation shall indemnify Indemnitee or Indemnitee Agent against
expenses (including attorneys' fees) actually and reasonably incurred
by Indemnitee or Indemnitee Agent in connection therewith.
Section 6.4 CERTAIN TERMS DEFINED. For purposes of this Article VI,
references to "other enterprises" shall include employee benefit plans,
references to "fines" shall include any excise taxes assessed on
Indemnitee or Indemnitee Agent with respect to an employee benefit
plan, and references to "proceeding" shall include any threatened,
pending or completed action or proceeding, whether civil, criminal,
administrative or investigative. References to "corporation" include
all constituent corporations absorbed in a consolidation or merger as
well as the resulting or surviving corporation, so that any person who
is or was a director, officer, employee, or other agent of such a
constituent corporation or who, being or having been such a director,
officer, employee or other agent of another corporation, partnership,
joint venture, trust or other enterprise shall stand in the same
position under the provisions of this Article VI with respect to the
resulting or surviving corporation as such person would if he or she
had served the resulting or surviving corporation in the same capacity.
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Section 6.5 ADVANCEMENT OF EXPENSES. The corporation shall advance all
expenses incurred by Indemnitee and may advance all or any expenses
incurred by Indemnitee Agent in connection with the investigation,
defense, settlement (excluding amounts actually paid in settlement of
any action, suit or proceeding) or appeal of any civil or criminal
action, suit or proceeding referenced in Sections 6.1 or 6.2 hereof.
Indemnitee or Indemnitee Agent hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall be determined
ultimately that Indemnitee or Indemnitee Agent is not entitled to be
indemnified by the corporation as authorized hereby. The advances to be
made hereunder shall be paid by the corporation (i) to Indemnitee
within twenty (20) days following delivery of a written request
therefor by Indemnitee to the corporation; and (ii) to Indemnitee Agent
within twenty (20) days following the later of a written request
therefor by Indemnitee Agent to the corporation and determination by
the corporation to advance expenses to Indemnitee Agent pursuant to the
corporation's discretionary authority hereunder.
Section 6.6 NOTICE OF CLAIM. Indemnitee shall, as a condition precedent
to his or her right to be indemnified under this Article VI, and
Indemnitee Agent shall, as a condition precedent to his or her ability
to be indemnified under this Article VI, give the corporation notice in
writing as soon as practicable of any claim made against Indemnitee or
Indemnitee Agent, as the case may be, for which indemnification will or
could be sought under this Article VI. Notice to the corporation shall
be directed to the secretary of the corporation at the principal
business office of the corporation (or such other address as the
corporation shall designate in writing to Indemnitee). In addition,
Indemnitee or Indemnitee Agent shall give the corporation such
information and cooperation as it may reasonably require and as shall
be within Indemnitee's or Indemnitee Agent's power.
Section 6.7 ENFORCEMENT RIGHTS. Any indemnification provided for in
Sections 6.1 or 6.2 or 6.3 shall be made no later than sixty (60) days
after receipt of the written request of Indemnitee. If a claim or
request under this Article VI, under any statute, or under any
provision of the corporation's Articles of Incorporation providing for
indemnification is not paid by the corporation, or on its behalf,
within sixty (60) days after written request for payment thereof has
been received by the corporation, Indemnitee may, but need not, at any
time thereafter bring suit against the corporation to recover the
unpaid amount of the claim or request, and subject to Section 6.19,
Indemnitee shall also be entitled to be paid for the expenses
(including attorneys' fees) of bringing such action. It shall be a
defense to any such action (other than an action brought to enforce a
claim for expenses incurred in connection with any action, suit or
proceeding in advance of its final disposition) that Indemnitee has not
met the standards of conduct which make it permissible under applicable
law for the corporation to indemnify Indemnitee for the amount claimed,
but the burden of proving such defense shall be on the corporation, and
Indemnitee shall be entitled to receive interim payments of expenses
pursuant to Section 6.5 unless and until such defense may be finally
adjudicated by court order or judgment for which no further right of
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appeal exists. The parties hereto intend that if the corporation
contests Indemnitee's right to indemnification, the question of
Indemnitee's right to indemnification shall be a decision for the
court, and no presumption regarding whether the applicable standard has
been met will arise based on any determination or lack of determination
of such by the corporation (including its Board or any subgroup
thereof, independent legal counsel or its shareholders). The board of
directors may, in its discretion, provide by resolution for similar or
identical enforcement rights for any Indemnitee Agent.
Section 6.8 ASSUMPTION OF DEFENSE. In the event the corporation shall
be obligated to pay the expenses of any proceeding against the
Indemnitee or Indemnitee Agent, as the case may be, the corporation, if
appropriate, shall be entitled to assume the defense of such proceeding
with counsel approved by Indemnitee or Indemnitee Agent, which approval
shall not be unreasonably withheld, upon the delivery to Indemnitee or
Indemnitee Agent of written notice of its election so to do. After
delivery of such notice, approval of such counsel by Indemnitee or
Indemnitee Agent and the retention of such counsel by the corporation,
the corporation will not be liable to Indemnitee or Indemnitee Agent
under this Article VI for any fees of counsel subsequently incurred by
Indemnitee or Indemnitee Agent with respect to the same proceeding,
unless (i) the employment of counsel by Indemnitee or Indemnitee Agent
is authorized by the corporation, (ii) Indemnitee or Indemnitee Agent
shall have reasonably concluded that there may be a conflict of
interest of such counsel retained by the corporation between the
corporation and Indemnitee or Indemnitee Agent in the conduct of such
defense, or (iii) the corporation ceases or terminates the employment
of such counsel with respect to the defense of such proceeding, in any
of which events then the fees and expenses of Indemnitee's or
Indemnitee Agent's counsel shall be at the expense of the corporation.
At all times, Indemnitee or Indemnitee Agent shall have the right to
employ other counsel in any such proceeding at Indemnitee's or
Indemnitee Agent's expense. Section
6.9 APPROVAL OF EXPENSES. No expenses for which indemnity shall be
sought under this Article VI, other than those in respect of judgments
and verdicts actually rendered, shall be incurred without the prior
consent of the corporation, which consent shall not be unreasonably
withheld.
Section 6.10 SUBROGATION. In the event of payment under this Article
VI, the corporation shall be subrogated to the extent of such payment
to all of the rights of recovery of the Indemnitee or Indemnitee Agent,
who shall do all things that may be necessary to secure such rights,
including the execution of such documents necessary to enable the
corporation effectively to bring suit to enforce such rights. Section
6.11 EXCEPTIONS. Notwithstanding any other provision herein to the
contrary, the corporation shall not be obligated pursuant to this
Article VI:
(a) Excluded Acts. To indemnify Indemnitee (i) as to circumstances
in which indemnity is expressly prohibited pursuant to California law,
or (ii) for any acts or omissions or transactions from which a director
may not be relieved of liability pursuant to California law; or
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(b) Claims Initiated by Indemnitee. To indemnify or advance
expenses to Indemnitee with respect to proceedings or claims initiated
or brought voluntarily by Indemnitee and not by way of defense, except
with respect to proceedings brought to establish or enforce a right to
indemnification under this Article VI or any other statute or law or as
otherwise required under the Corporations Code of California, but such
indemnification or advancement of expenses may be provided by the
corporation in specific cases if the board of directors has approved
the initiation or bringing of such suit; or
(c) Lack of Good Faith. To indemnify Indemnitee for any expenses
incurred by the Indemnitee with respect to any proceeding instituted by
Indemnitee to enforce or interpret this Article VI, if a court of
competent jurisdiction determines that such proceeding was not made in
good faith or was frivolous; or
(d) Insured Claims. To indemnify Indemnitee for expenses or
liabilities of any type whatsoever (including, but not limited to,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) which have been paid directly to Indemnitee by an insurance
carrier under a policy of officers' and directors' liability insurance
maintained by the corporation; or
(e) Claims Under Section 16(b). To indemnify Indemnitee for
expenses and the payment of profits arising from the purchase and sale
by Indemnitee of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar successor
statute.
Section 6.12 PARTIAL INDEMNIFICATION. If Indemnitee is entitled under
any provision of this Article VI to indemnification by the corporation
for some or a portion of the expenses, judgments, fines or penalties
actually or reasonably incurred by the Indemnitee in the investigation,
defense, appeal or settlement of any civil or criminal action, suit or
proceeding, but not, however, for the total amount thereof, the
corporation shall nevertheless indemnify Indemnitee for the portion of
such expenses, judgments, fines or penalties to which Indemnitee is
entitled.
Section 6.13 COVERAGE. This Article VI shall, to the extent permitted
by law, apply to acts or omissions of (i) Indemnitee which occurred
prior to the adoption of this Article VI if Indemnitee was a director
or officer of the corporation or was serving at the request of the
corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, at the time such
act or omission occurred; and (ii) Indemnitee Agent which occurred
prior to the adoption of this Article VI if Indemnitee Agent was an
employee or other agent of the corporation or was serving at the
request of the corporation as an employee or agent of another
corporation, partnership, joint venture, trust or other enterprise at
the time such act or omission occurred. All rights to indemnification
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under this Article VI shall be deemed to be provided by a contract
between the corporation and the Indemnitee in which the corporation
hereby agrees to indemnify Indemnitee to the fullest extent permitted
by law, notwithstanding that such indemnification is not specifically
authorized by the corporation's Articles of Incorporation, these Bylaws
or by statute. Any repeal or modification of these Bylaws, the
Corporations Code of California or any other applicable law shall not
affect any rights or obligations then existing under this Article VI.
The provisions of this Article VI shall continue as to Indemnitee and
Indemnitee Agent for any action taken or not taken while serving in an
indemnified capacity even though the Indemnitee or Indemnitee Agent may
have ceased to serve in such capacity at the time of any action, suit
or other covered proceeding. This Article VI shall be binding upon the
corporation and its successors and assigns and shall inure to the
benefit of Indemnitee and Indemnitee Agent and Indemnitee's and
Indemnitee Agent's estate, heirs, legal representatives and assigns.
Section 6.14 NON-EXCLUSIVITY. Nothing herein shall be deemed to
diminish or otherwise restrict any rights to which Indemnitee or
Indemnitee Agent may be entitled under the corporation's Articles of
Incorporation, these Bylaws, any agreement, any vote of shareholders or
disinterested directors, or under the laws of the State of California.
Section 6.15 SEVERABILITY. Nothing in this Article VI is intended to
require or shall be construed as requiring the corporation to do or
fail to do any act in violation of applicable law. If this Article VI
or any portion hereof shall be invalidated on any ground by any court
of competent jurisdiction, then the corporation shall nevertheless
indemnify Indemnitee or Indemnitee Agent to the fullest extent
permitted by any applicable portion of this Article VI that shall not
have been invalidated.
Section 6.16 MUTUAL ACKNOWLEDGMENT. Both the corporation and Indemnitee
acknowledge that in certain instances, Federal law or applicable public
policy may prohibit the corporation from indemnifying its directors and
officers under this Article VI or otherwise. Indemnitee understands and
acknowledges that the corporation has undertaken or may be required in
the future to undertake with the Securities and Exchange Commission to
submit the question of indemnification to a court in certain
circumstances for a determination of the corporation's right under
public policy to indemnify Indemnitee.
Section 6.17 OFFICER AND DIRECTOR LIABILITY INSURANCE. The corporation
shall, from time to time, make the good faith determination whether or
not it is practicable for the corporation to obtain and maintain a
policy or policies of insurance with reputable insurance companies
providing the officers and directors of the corporation with coverage
for losses from wrongful acts, or to ensure the corporation's
performance of its indemnification obligations under this Article VI.
Among other considerations, the corporation will weigh the costs of
obtaining such insurance coverage against the protection afforded by
such coverage. Notwithstanding the foregoing, the corporation shall
have no obligation to obtain or maintain such insurance if the
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corporation determines in good faith that such insurance is not
reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided, if the coverage
provided by such insurance is limited by exclusions so as to provide an
insufficient benefit, or if Indemnitee is covered by similar insurance
maintained by a subsidiary or parent of the corporation.
Section 6.18 NOTICE TO INSURERS. If, at the time of the receipt of a
notice of a claim pursuant to Section 6.6 hereof, the corporation has
director and officer liability insurance in effect, the corporation
shall give prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the respective
policies. The corporation shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
Section 6.19 ATTORNEYS' FEES. In the event that any action is
instituted by Indemnitee under this Article VI to enforce or interpret
any of the terms hereof, Indemnitee shall be entitled to be paid all
court costs and expenses, including reasonable attorneys' fees,
incurred by Indemnitee with respect to such action, unless as a part of
such action, the court of competent jurisdiction determines that the
action was not instituted in good faith or was frivolous. In the event
of an action instituted by or in the name of the corporation under this
Article VI, or to enforce or interpret any of the terms of this Article
VI, Indemnitee shall be entitled to be paid all court costs and
expenses, including attorneys' fees, incurred by Indemnitee in defense
of such action (including with respect to Indemnitee's counterclaims
and cross-claims made in such action), unless as a part of such action
the court determines that Indemnitee's defenses to such action were not
made in good faith or were frivolous. The board of directors may, in
its discretion, provide by resolution for payment of such attorneys'
fees to any Indemnitee Agent. Section 6.20 NOTICE. All notices,
requests, demands and other communications under this Article VI shall
be in writing and shall be deemed duly given (i) if delivered by hand
and receipted for by the addressee, on the date of such receipt, or
(ii) if mailed by domestic certified or registered mail with postage
prepaid, on the third business day after the date postmarked.
The Company maintains an insurance policy pursuant to which the
directors and certain officers of the Company are insured, within the limits and
subject to the limitations of the policy, against certain expenses in connection
with the defense of certain claims, actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such claims, actions, suits or
proceedings, which may be brought against them by reason of their being or
having been such directors or officers.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description of Exhibit Page
------ ---------------------- ----
3.1 Restated Articles of Incorporation (incorporated by reference to --
Exhibit 3.1 to the Company's Annual Report on Form 10-K for the
year ended December 31, 2002).
3.2 Amended and Restated Bylaws (incorporated by reference to Exhibit
3.1 to the Company's Current Report on Form 8-K filed with the
Commission on February 20, 2003).
5.1 Opinion of Sheppard, Mullin, Richter & Hampton LLP. 16
23.1 Consent of Ernst & Young LLP. 18
23.2 Consent of Sheppard, Mullin, Richter & Hampton LLP (included in its --
opinion filed as Exhibit 5.1).
24.1 Power of Attorney (See page 13). --
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: (i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration 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 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement; and
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(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, executive officers and
controlling persons of the registrant pursuant to the provisions described in
Item 6 above, or otherwise, the registrant has been advised that in the opinion
of the Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Woodland Hills, State of California, on March 29,
2004.
HEMACARE CORPORATION
By /s/ Judi Irving
----------------------------
Judi Irving,
President and Chief Executive Officer
(Principal Executive Officer)
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POWER OF ATTORNEY
FILING OF REGISTRATION STATEMENT ON FORM S-8
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and officers of HEMACARE CORPORATION, a California corporation (the "Company"),
hereby nominate and appoint Judi Irving and Robert S. Chilton, and each of them
acting or signing singly, as his or her agents and attorneys-in-fact (the
"Agents"), in his or her respective name and in the capacity or capacities
indicated below to execute and/or file, with all exhibits thereto, and other
documents in connection therewith, (1) a registration statement on Form S-8
under the Securities Act of 1933, as amended (the "Act"), in connection with the
registration under the Act of shares of the Company's Common Stock issuable
under the 1996 Stock Incentive Plan (including the schedules and all exhibits
and other documents filed therewith or constituting a part thereof); and (2) any
one or more amendments to any part of the foregoing registration statement,
including any post-effective amendments, or appendices or supplements that may
be required to be filed under the Act to keep such registration statement
effective or to terminate its effectiveness.
Further, the undersigned do hereby authorize and direct such agents and
attorneys-in-fact to take any and all actions and execute and file any and all
documents with the Securities and Exchange Commission (the "SEC"), or state
regulatory agencies, necessary, proper or convenient in their opinion to comply
with the Act and the rules and regulations or orders of the SEC, or state
regulatory agencies, adopted or issued pursuant thereto, including the making of
any requests for acceleration of the effective date of said registration
statement, to the end that the registration statement of the Company shall
become effective under the Act and any other applicable law.
Finally, each of the undersigned does hereby ratify, confirm and
approve each and every act and document which the said appointed agents and
attorneys-in-fact may take, execute or file pursuant thereto with the same force
and effect as though such action had been taken or such documents had been
executed or filed by the undersigned respectively.
This Power of Attorney shall remain in full force and effect until
revoked or superseded by written notice filed with the SEC.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Julian L. Steffenhagen Chairman of the Board March 29, 2004
----------------------------------
Julian L. Steffenhagen
/s/ Judi Irving President and Chief Executive March 29, 2004
---------------------------------- Officer (Principal Executive
Judi Irving Officer) and Director
/s/ Robert S. Chilton Executive Vice President and March 29, 2004
---------------------------------- Chief Financial Officer
Robert S. Chilton (Principal Financial and
Accounting Officer)
/s/ Steven Gerber Director March 29, 2004
----------------------------------
Steven Gerber
/s/ Robert L. Johnson Director March 29, 2004
----------------------------------
Robert L. Johnson
Director
----------------------------------
Terry Van Der Tuuk
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EXHIBIT INDEX
Exhibit Description
------- -----------
3.1 Restated Articles of Incorporation (incorporated by
reference to Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the year ended December 31,
2002).
3.2 Amended and Restated Bylaws (incorporated by
reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K filed with the Commission on
February 20, 2003).
5.1 Opinion of Sheppard, Mullin, Richter & Hampton LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Sheppard, Mullin, Richter & Hampton LLP
(included in its opinion filed as Exhibit 5.1).
24.1 Power of Attorney (See page 13).
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