As filed with the Securities and Exchange Commission on June 10, 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)
2004 STOCK PURCHASE 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
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Proposed maximum Proposed maximum
Title of each class of Amount to be registered offering price per aggregate offering price Amount of registration
securities to be registered (1) share (2) (2) fee (2)
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Common Stock 1,000,000 shares $0.700 $700,000 $89
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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 June 4, 2004, as
reported by the National Association of Securities Dealers OTCBB.
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 2004 Stock Purchase Plan (the
"Plan") of HemaCare Corporation (the "Company") as specified by Rule 428(b)(1)
promulgated by the Securities and Exchange Commission (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) The Company's Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2004, filed with the Commission on May 14, 2004;
(c) The Company's Current Report on Form 8-K, filed with the Commission on
April 9, 2004; and
(d) The description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A, filed with the Commission on December
8, 1986, and any amendment or report filed for the purpose of updating
such description.
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
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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
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
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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 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
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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.
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;
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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 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,
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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
(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
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(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 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
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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 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
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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 has entered into an agreement with each of its directors
and certain of its officers indemnifying them to the fullest extent permitted by
applicable law.
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.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
Exhibit
Number Description of Exhibit
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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).
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
(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;
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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.
11
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 June 10,
2004.
HEMACARE CORPORATION
By /s/ Judi Irving
--------------------------------------
Judi Irving,
President and Chief Executive Officer
(Principal Executive Officer)
12
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.
13
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 June 10, 2004
------------------------------
Julian L. Steffenhagen
/s/ Judi Irving President and Chief June 10, 2004
------------------------------ Executive Officer
Judi Irving (Principal Executive
Officer) and Director
/s/ Robert S. Chilton Executive Vice President June 10, 2004
------------------------------ and Chief Financial
Robert S. Chilton Officer (Principal
Financial and Accounting
Officer)
/s/ Steven Gerber Director June 10, 2004
------------------------------
Steven Gerber
/s/ Robert L. Johnson Director June 10, 2004
------------------------------
Robert L. Johnson
/s/ Terry Van Der Tuuk Director June 10, 2004
------------------------
Terry Van Der Tuuk
14
EXHIBIT INDEX
Exhibit Description 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 & 16
Hampton LLP.
23.1 Consent of Ernst & Young LLP. 18
23.2 Consent of Sheppard, Mullin, Richter &
Hampton LLP (included in its opinion filed 16
as Exhibit 5.1).
24.1 Power of Attorney. 13
15