EXHIBIT 10.9
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT is made and effective as of the
twenty-eighth day of September, 2002, by and between ALAN
DARLINGTON ("Darlington") and HEMACARE CORPORATION, a California
corporation (the "Company"), with respect to the following facts:
A. Darlington has been the Executive Chairman of the
Company since December 1998 and the Chief Executive Officer of
the Company since June 2001.
B. The parties each desire to terminate any relationship
between Darlington and the Company as a consultant, officer,
independent contractor or employee (hereinafter, "employment") or
as a director, all on the terms and conditions set forth below.
ACCORDINGLY, in consideration of the foregoing premises, and
the representations, warranties and covenants contained herein,
and for other good and valuable consideration, the receipt and
sufficiency of which hereby is acknowledged, Darlington and the
Company hereby agree as follows:
1. Termination of Employment.
(a) The employment of Darlington by the Company hereby
is terminated effective as of the date hereof.
(b) Neither Darlington nor the Company shall have any
further rights or obligations arising from and after the date
hereof under that certain Services Agreement dated as of
March 10, 1999, between Darlington and the Company, as the same
may have been amended from time to time (the "Services
Agreement"); provided, however, that (i) Darlington shall
continue to be bound by Section VII of the Services Agreement and
(ii) nothing in this Section 1(b) shall affect any rights or
obligations of Darlington or the Company under the Services
Agreement accrued as of the date hereof.
(c) The Company shall pay to Darlington the following
amounts in full payment of all amounts payable to Darlington by
the Company in connection with Darlington's employment by the
Company or service as a director of the Company, less all
applicable state and federal withholding taxes:
(i) $187,000 payable in installments in the
amounts and on the dates set forth on Exhibit C;
and
(ii) $50,000 payable on September 30, 2004 on the
terms set forth in that certain Escrow Agreement
attached hereto as Exhibit A which has been
executed and delivered by Darlington and the
Company concurrently with the execution and
delivery by them of this Agreement.
Any amount payable by the Company to Darlington under this
Section 1(c) shall be paid by automatic deposit to the account
specified by Darlington, if automatic deposit is then available
to employees of the Company for such payment, or by the Company's
check sent on or before the date due by United States mail in the
manner and to the address set forth in Section 10, if automatic
payroll deposit is not then available.
(d) The Company shall deduct from the payments due to
Darlington pursuant to Section 1(c), commencing with the payment
due on December 13, 2002 and continuing thereafter, such
customary deductions (including, but not limited to, state and
federal withholding taxes, FICA and SDI) as the Company shall
determine to be applicable to any payments made pursuant to this
Agreement or the Services Agreement on or after January 1, 2002.
(e) Notwithstanding anything to the contrary contained
in this Agreement, the Company shall have the right to offset
against the payment due to Darlington pursuant to
Section 1(c)(ii) above any and all payments, damages, claims,
demands, fines, penalties, assessments, costs, expenses,
obligations and liabilities (including, but not limited to,
attorneys fees and costs) (a "loss") incurred by the Company
which arise or result from or are related to any claim, demand,
action or investigation of any federal, state, local or foreign
governmental agency with respect to any act or omission of
Darlington, or any employee of the Company at the direction of or
with the knowledge of Darlington, during the period from
March 10, 1999 to September 28, 2002. If a judicial or
administrative proceeding or process has been initiated which may
lead to any such loss, then the payment date of the amount
specified in Section 1(c)(ii) shall be extended until such
proceeding or process (and all rights of appeal) are concluded.
The right granted to the Company in this Section 1(e) shall not
be the sole remedy of the Company in the event of any such claim,
demand, action or investigation.
(f) The employee stock purchase rights set forth in
those certain Non-Qualified Stock Option Agreements dated as of
March 10, 1999 and March 23, 2001 hereby are terminated as of the
date hereof.
(g) The Company hereby sells to Darlington, and
Darlington hereby purchases from the Company, for $20,000 (the
"Purchase Price"), the right to purchase up to 270,000 shares of
the Common Stock of the Company on the terms set forth in those
certain Warrants to Purchase Common Shares attached hereto as
Exhibits B-1 and B-2 (the "Warrants") which has been executed and
delivered to Darlington by the Company concurrently with the
execution and delivery by them of this Agreement. The Purchase
Price shall be offset against the payments due to Darlington
pursuant to Section 1(c)(i) above, in the amounts and on the
dates set forth in Exhibit C.
(h) Darlington hereby acknowledges and agrees that,
except as set forth in Sections 1(c) and (g) above, Darlington is
not entitled to any additional compensation or benefits
(including, but not limited to, wages, salaries, bonuses, health
benefits, vacation pay, sick pay, expense reimbursement,
severance pay or any other benefit) as a result of, in connection
with or related to his employment by the Company or service as a
director of the Company, whether pursuant to the Services
Agreement or otherwise.
(i) Darlington hereby generally waives, releases and
forever discharges the Company and its officers, directors,
attorneys, agents, employees, affiliates and successors from any
and all claims, causes of action, damages or costs of any type (a
"claim") Darlington may have, prior to the effective date hereof,
against the Company or its officers, directors, attorneys,
employees, agents, successors or affiliates arising out of or
relating to Darlington's employment by the Company or service as
a director of the Company, or the termination of Darlington's
employment by the Company or service as a director of the
Company. This waiver and release includes, but is not limited
to, claims, causes of action, damages or costs arising under or
in relation to the Services Agreement, the Company's employee
handbook and personnel policies, or any oral or written
representations or statements made by officers, directors,
employees or agents of the Company, or under any state or federal
law regulating wages, hours, compensation or employment, or any
claim for breach of contract or breach of the implied covenant of
good faith and fair dealing, or any claim for wrongful
termination, or any discrimination claim on the basis of race,
sex, age, religion, marital status, national origin, physical or
mental disability, medical condition, or any claim arising under
the federal Age Discrimination in Employment Act, the Employee
Retirement Income Security Act of 1974, the Equal Pay Act, the
Family Medical Act, the California Labor Code, Title VII of the
Civil Rights Act or the Fair Employment and Housing Act. The
waiver and release set forth in this Section 1(i) applies to
claims of which Darlington does not currently have knowledge, and
Darlington specifically waives the benefit of the provisions of
Section 1542 of the Civil Code of the State of California which
reads as follows: "A general release does not extend to claims
which the creditor does not know or suspect to exist in his favor
at the time of executing the release, which if known by him must
have materially affected his settlement with the debtor."
(j) Darlington hereby agrees to return to an executive
officer of the Company promptly after the date hereof all
property of the Company in the custody or control of Darlington,
including, but not limited to, all office equipment, forms,
manuals, financial information, reports, memoranda,
correspondence, notes, planning information, documents or other
material.
(k) Darlington hereby represents, warrants and
acknowledges to the Company that (i) he has not suffered nor
aggravated any known on-the-job injuries for which he has not
already filed a claim, (ii) the Company has no obligations to him
other than as set forth in this Agreement, (iii) this Agreement
is the result of a compromise of disputed claims and nothing in
this Agreement shall be construed as an admission of liability of
any kind by the Company to Darlington, (iv) the Company has no
legal or contractual obligation to hire Darlington at any time in
the future, (v) other than as stated in this Agreement, no
promise or inducement has been offered to Darlington for this
Agreement and (vi) the terms of this Agreement are confidential
and Darlington and his agents shall not disclose the terms of
this Agreement except pursuant to court order.
(l) Concurrently with the execution and delivery of
this Agreement, Darlington will resign as a director of the
Company and a member of each committee of the Board of Directors.
(m) Nothing in this Agreement is intended to limit
Darlington's rights to indemnification, if any, under any
provision of the Company's Articles of Incorporation or Bylaws,
any policy of insurance maintained by the Company for the benefit
of its officers and directors or Section 2802 of the California
Labor Code, as the same may be amended from time to time.
2. Trade Secrets.
(a) Darlington shall not, without the prior written
consent of the Company's Chief Executive Officer in each
instance, disclose or use in any way any confidential business or
technical information or trade secret of the Company acquired in
the course of his employment by the Company or service as a
director of the Company, whether or not patentable, copyrightable
or otherwise protected by law, and whether or not conceived of or
prepared by him (collectively, the "Trade Secrets"), including,
without limitation, any confidential information concerning
customer lists, products, procedures, operations, investments,
financing, costs, employees, purchasing, accounting, marketing,
merchandising, sales, salaries, pricing, profits and plans for
future development, the identity, requirements, preferences,
practices and methods of doing business of specific parties with
whom the Company transacts business, and all other information
which is related to any product, service or business of the
Company, other than information which is generally known in the
industry in which the Company transacts business through no
action of Darlington or is acquired from public sources or was
known to Darlington before January 1, 1997; all of which Trade
Secrets are the exclusive and valuable property of the Company.
(b) For one (1) year after the date of this Agreement
(such period not to include any period of violation hereof by
Darlington or period which is required for litigation to enforce
this paragraph and during which Darlington is in violation
hereof), Darlington shall not, directly or indirectly, either for
his own benefit or purposes or the benefit or purposes of any
other person, employ or offer to employ, call on, solicit,
interfere with or attempt to divert or entice away any employee
or independent contractor of the company (or any person whose
employment or status as an independent contractor has terminated
within the twelve (12) months preceding the date of such
solicitation) in any capacity if that person possesses or has
knowledge of any Trade Secrets of the Company.
(c) Darlington hereby acknowledges and agrees that it
would be difficult to fully compensate the Company for damages
resulting from the breach or threatened breach of this Section 2
and, accordingly, that the Company shall be entitled to temporary
and injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, to enforce
such provisions without the necessity of proving actual damages
and without the necessity of posting any bond or other
undertaking in connection therewith. This provision with respect
to injunctive relief shall not, however, diminish the Company's
right to claim and recover damages.
3. Severable Provisions. The provisions of this Agreement
are severable, and if any one or more provisions may be
determined to be illegal or otherwise unenforceable, in whole or
in part, the remaining provisions, and any partially
unenforceable provisions to the extent enforceable, shall
nevertheless be binding and enforceable.
4. Successors and Assigns. All of the terms, provisions
and obligations of this Agreement shall inure to the benefit of
and shall be binding upon the parties hereto and their respective
heirs, representatives, successors and assigns. Notwithstanding
the foregoing, neither this Agreement nor any rights hereunder
shall be assigned, pledged, hypothecated or otherwise transferred
by Darlington without the prior written consent of the Company in
each instance.
5. Governing Law. The validity, construction and
interpretation of this Agreement shall be governed in all
respects by the laws of the State of California applicable to
contracts made and to be performed wholly within that State.
6. Attorneys' Fees. In the event any party takes legal
action to enforce any of the terms of this Agreement, the
unsuccessful party to such action shall pay the successful
party's expenses, including reasonable attorneys' fees and costs,
incurred in such action.
7. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each one of which
shall be deemed an original, but all of which shall constitute
one and the same instrument.
8. Survival of Representations, Warranties and Agreements.
All representations, warranties and agreements made by the
parties hereto in this Agreement shall survive the date hereof
and any investigations, inspections, examinations or audits made
by or on behalf of any party.
9. Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto pertaining to the
subject matter hereof, and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or
written, relating to the subject matter of this Agreement. No
supplement, modification, waiver or termination of this Agreement
shall be valid unless executed by the party to be bound thereby.
No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar), nor shall such waiver constitute
a continuing waiver unless otherwise expressly provided.
10. Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be deemed to
have been given (i) if personally delivered, when so delivered,
(ii) if mailed, one (1) week after having been placed in the
United States mail, registered or certified, postage prepaid,
addressed to the party to whom it is directed at the address set
forth below or (iii) if given by telex or telecopier, when such
notice or other communication is transmitted to the telex or
telecopier number specified below and the appropriate answerback
or telephonic confirmation is received. Either party may change
the address to which such notices are to be addressed by giving
the other party notice in the manner herein set forth.
11. Headings. Section and subsection headings are not to
be considered part of this Agreement and are included solely for
convenience and reference and in no way define, limit or describe
the scope of this Agreement or the intent of any provisions
hereof.
12. Third Parties. Nothing in this Agreement, expressed or
implied, is intended to confer upon any person other than the
parties hereto and their successors and assigns any rights or
remedies under or by reason of this Agreement.
13. Further Assurances. Each party hereto shall, from time
to time at and after the date hereof, execute and deliver such
instruments, documents and assurances and take such further
actions as the other party may reasonably request to carry out
the purpose and intent of this Agreement.
14. Arbitration. Any and all disputes, controversies or
claims arising out of or related to this Agreement, including
without limitation, fraud in the inducement of this Agreement or
the general validity or enforceability of this Agreement, shall
be filed in Los Angeles, California and submitted to final and
binding arbitration under the auspices and rules of the Judicial
Arbitration and Mediation Services, Inc. ("JAMS"), or if it is no
longer in existence, under the auspices and rules of the American
Arbitration Association ("AAA"). All hearings and conferences
shall be conducted within the County of Los Angeles, unless the
parties stipulate otherwise. There shall be one arbitrator who
shall be a retired superior court or federal judge. The parties
agree that they have waived any right to trial by jury. The
decision of the arbitrator shall be final and binding and the
judgment rendered may be entered in any court having
jurisdiction. The prevailing party in any such arbitration
proceeding shall be entitled to its costs and reasonable
attorneys' fees, costs and expenses. The provisions of
California Code of Civil Procedure Sections 1281, et seq. govern
this arbitration provision. In the event that both JAMS and the
AAA decline to accept and administer arbitration of the dispute,
then either party may petition the Superior Court of the State of
California for the County of Los Angeles, to appoint a single
arbitrator in the following manner: (i) the judge to whom the
matter is assigned shall designate three attorneys who are
suitable to serve as arbitrators of the dispute; (ii) each party
shall have the right to strike one attorney from the list of
proposed arbitrators; (iii) the remaining arbitrator shall be
appointed by the court as the single arbitrator and (iv) the
matter shall be administered by, or under the direction of, the
single arbitrator following the "Streamlined Arbitration Rules
and Procedures" of JAMS, as such rules and procedures may be in
effect at the time of commencement of the arbitration proceeding.
15. Termination of Prior Agreements. Any provision of any
agreement between the parties hereto (including, but not limited
to, the Services Agreement), which is inconsistent with the terms
of this Agreement, shall be null and void and of no force and
effect to the extent inconsistent herewith.
16. Legal Counsel. DARLINGTON ACKNOWLEDGES THAT THE
COMPANY HAS RECOMMENDED THAT HE CONSULT WITH LEGAL COUNSEL BEFORE
SIGNING THIS AGREEMENT. DARLINGTON HEREBY ACKNOWLEDGES THAT IN
CONNECTION WITH THIS AGREEMENT HE HAS SOUGHT THE ADVICE OF SUCH
INDEPENDENT LEGAL COUNSEL AS HE SHALL HAVE DETERMINED TO BE
NECESSARY OR ADVISABLE IN HIS SOLE AND ABSOLUTE DISCRETION.
17. Revocation. Darlington shall have a period of 21 days
in which to consider whether to enter into this Agreement.
Darlington does not have to use the entire 21 day period before
signing this Agreement. If Darlington does enter into this
Agreement, he may revoke the Agreement within seven days after
the execution of the Agreement. This Agreement is not effective
or enforceable until after this seven day period has passed.
18. Construction. This Agreement was reviewed by legal
counsel for each party hereto and is the product of informed
negotiations between the parties hereto. If any part of this
Agreement is deemed to be unclear or ambiguous, it shall be
construed as if it were drafted jointly by the parties. Each
party hereto acknowledges that no party was in a superior
bargaining position regarding the substantive terms of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date and year first set forth
above.
HEMACARE CORPORATION
By: /s/ Judi Irving
-------------------------
21101 Oxnard Street
Woodland Hills California 91367
Telecopy: (818) 251-5300
Attention: President
/s/ Alan Darlington
___________________________________
ALAN DARLINGTON
691 Valley Vista
Camarillo, California 93010
Telecopy: (805) 738-0464
EXHIBIT A
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and effective as of the
twenty-eighth day of September, 2002, by and among HEMACARE
CORPORATION, a California corporation (the "Company"), ALAN
DARLINGTON ("Darlington") and ___________________, a
__________________ corporation (the "Escrow Agent"), with respect
to the following facts:
This Escrow Agreement is made and entered into among
the Company, Darlington and the Escrow Agent pursuant to Section
1(c)(ii) of that certain Separation Agreement between the Company
and Darlington of even date herewith (the "Separation
Agreement").
ACCORDINGLY, subject to the terms and conditions of
this Agreement, and on the basis of the premises, covenants and
undertakings contained herein, the parties hereto agree as
follows:
1. ESCROW FUND
1.1 Delivery of Escrow Fund.
(a) The Company hereby delivers to the Escrow
Agent, and authorizes and directs the Escrow Agent to hold
pursuant to the terms and conditions of this Agreement,
$50,000 (the "Escrow Fund").
(b) The Escrow Fund shall be held by the Escrow
Agent as partial security for the performance of the
obligations of Darlington under Section 1(e) of the
Separation Agreement.
1.2 Investment of Cash. The Escrow Fund shall be
invested and reinvested by the Escrow Agent in accordance with
the written instructions of Darlington, subject to the following
limitations:
(a) Such funds shall be invested and reinvested
solely
(1) at the risk of Darlington;
(2) in the name of the Escrow Agent or its
nominee and in such amounts as Darlington shall
designate; and
(3) in any of the following:
(i) (A) any direct general obligations of
the United States of America (including obligations
issued or held in book entry form on the books of the
Department of the Treasury of the United States of
America), the payment and principal on which are
unconditionally and fully guaranteed by the United
States of America, and (B) obligations of any agency,
department or instrumentality of the United States of
America the timely payment of principal of and interest
on which are fully guaranteed by the United States of
America (collectively, "Federal Securities");
(ii) notes or debentures of the Federal Home
Loan Bank Board, obligations of the Government National
Mortgage Association, or the Federal National Mortgage
Association;
(iii) deposit accounts, time certificates
of deposit or negotiable certificates of deposit issued
by a state or national chartered bank or trust company,
or a state or national savings and loan association,
provided that, (A) in the case of a savings and loan
association, the unsecured obligations of such savings
and loan association shall be rated "A" or better by
either Standard & Poor's Corporation or Moody's
Investors Service, Inc. (each, a "Rating Agency"), and
(B) in the case of a bank, such deposits shall be fully
insured by the Federal Deposit Insurance Corporation,
or the unsecured obligations of such bank (or the
unsecured obligations of the parent bank holding
company of which such bank is the lead bank) shall be
rated "A" or better by either Rating Agency;
(iv) banker's acceptances which are issued by
a bank or trust company organized under the laws of any
state of the United States or any national banking
association; provided, that such banker's acceptances
may not exceed 270 days' maturity;
(v) commercial paper of "prime" quality of
the highest ranking or of the highest letter and
numerical rating as provided by either Rating Agency;
(vi) notes, warrants or other evidence of
indebtedness of any of the states of the United States
or of any political subdivision or public agency
thereof which are rated in the highest short-term or
one of the two highest long-term categories by either
Rating Agency;
(vii) money market funds or mutual funds
the policy of which is to invest solely in Federal
Securities or in obligations which are fully guaranteed
or collateralized by Federal Securities, or money
market funds or mutual funds which are rated in the
highest rating category by either Rating Agency;
(viii) any investment agreement with (A)
any bank or trust company organized under the laws of
any state of the United States or any national banking
association or government bond dealer reporting to,
trading with and recognized as a primary dealer by, the
Federal Reserve Bank of New York, whose long term
unsecured debt is rated "A" or better by either Rating
Agency, or (B) any corporation that is organized and
operating within the United States of America whose
long term unsecured debt is rated "A" or better by
either Rating Agency, and that has total assets in
excess of $250,000,000; or
(ix) such other instruments as may be
specifically approved in writing by both Darlington and
the Company.
(b) If Darlington does not provide the Escrow
Agent with written instructions directing the investment or
reinvestment of any of the Escrow Fund, the Escrow Agent
shall automatically and forthwith invest such funds in
accordance with Section 1.3(a)(3)(i) until the Escrow Agent
has received appropriate written instructions from Sands.
(c) The Escrow Agent shall be entitled to sell or
redeem any such investment as necessary to make any
distributions required under this Agreement (provided that
such distributions satisfy all the conditions required to be
satisfied prior to the making of such distributions) and
shall not be liable or responsible for any loss resulting
from any such sale or redemption; provided that, in the
event the Escrow Agent intends to sell or redeem any such
investment, the Escrow Agent shall notify Darlington and the
Company at least three (3) business days prior to taking any
action to cause such sale or redemption).
(d) Income, if any, resulting from the investment
of Escrow Fund shall be retained by the Escrow Agent and
shall be considered, for all purposes of this Agreement, to
be part of the Escrow Fund.
1.3 Notice of Claims. The Company shall give written
notice (a "Demand Notice") to Darlington and the Escrow Agent of
any claim against Darlington under Section 1(e) of the Separation
Agreement. The Demand Notice shall include a summary description
of the factual bases for the claim and an estimate of the amount
of the claim. Darlington shall have the right to contest any
claim described in a Demand Notice by giving written notice (a
"Dispute Notice") to the Company and the Escrow Agent within
thirty (30) calendar days of the Demand Notice. In the event
Darlington does not give a Dispute Notice within such thirty (30)
day period, the description of the claim contained in the Demand
Notice (including, but not limited to, the factual and legal
bases therefor and the estimate of the amount of the claim) shall
be deemed conclusively to be true and complete; provided,
however, that the Company shall be entitled thereafter to submit
additional Demand Notices pursuant to this Section 1.3 with
respect to the same claims as were described in such initial
Demand Notice and Darlington shall have the right to contest any
such additional demand Notice, all as set forth above.
1.4 Distribution of Escrow Fund.
(a) The Escrow Agent shall distribute to
Darlington the Escrow Fund on October 31, 2004 (the
"Distribution Date"). Notwithstanding the foregoing, any
portion of the Escrow Fund to be distributed to Darlington
on the Distribution Date shall be reduced by (i) that
portion of the Escrow Fund which previously had been
distributed pursuant hereto to the Company, and (ii) that
portion of the Escrow Fund equal to the aggregate claims set
forth in any unresolved Demand Notice. Upon the later to
occur of the Distribution Date and the resolution of all
claims set forth in all Demand Notices delivered hereunder
on or prior to the Distribution Date, the Escrow Agent shall
distribute to Darlington the Escrow Fund as the same has
been reduced by any amounts previously distributed pursuant
hereto to the Company.
(b) In the event Darlington shall fail to timely
deliver a Dispute Notice with respect to any claim set forth
in a Demand Notice, or such claim is resolved by the
agreement of the parties or by arbitration as set forth in
Section 2.12, the Escrow Agent, promptly after the last day
on which such Dispute Notice could have been timely given or
after receipt by the Escrow Agent of a written notice of
such agreement signed by the Company and Darlington or of
such arbitration decision, shall deliver to the Company, on
the one hand, or to Darlington, on the other hand, that
portion of the Escrow Fund equal to the value of the claim
as set forth in the Demand Notice, if a Dispute Notice with
respect thereto was not timely delivered, or as determined
by the agreement of the parties or the arbitration, as the
case may be.
(c) In the event a claim set forth in a Demand
Notice is finally determined by a decision from which no
appeal may be taken, the Escrow Agent shall distribute to
the Company, on the one hand, or to Darlington, on the other
hand, that portion of the Escrow Fund equal to the value of
the claim as so finally determined.
1.5 Duties of the Escrow Agent.
(a) Notwithstanding anything herein to the
contrary, the Escrow Agent shall retain and promptly dispose
of all or any part of the Escrow Fund in accordance with
this Agreement. The reasonable fees and expenses of the
Escrow Agent in connection with its execution and
performance of this Agreement as set forth on Schedule 1
hereto shall be borne by Darlington and shall be due and
payable upon the signing of this Agreement and on the first
day of each subsequent year during which this Agreement
remains in effect. The Escrow Agent shall not be liable for
any act or omission to act under this Agreement, including
any and all claims made against the Escrow Agent as a result
of its holding the Escrow Fund, except for its own gross
negligence or willful misconduct. The Company and
Darlington, jointly and severally, shall indemnify and hold
harmless the Escrow Agent from and against any and all
claims, losses, costs, liabilities, damages, suits, demands,
judgments or expenses (including, but not limited to,
reasonable attorneys' fees and costs)(the "Damages") claimed
against or incurred by the Escrow Agent arising out of or
related, directly or indirectly, to this Agreement, except
acts of gross negligence or willful misconduct. The Escrow
Agent may decline to act and shall not be liable for failure
to act if in doubt as to its duties under this Agreement.
The Escrow Agent may act upon any instrument or signature
believed by it to be genuine and may assume that any person
purporting to give any notice or instruction hereunder,
reasonably believed by it to be authorized, has been duly
authorized to do so. The Escrow Agent's duties shall be
determined only with reference to this Agreement and
applicable laws, and the Escrow Agent is not charged with
knowledge of or any duties or responsibilities in connection
with any other document or agreement, other than the
Separation Agreement. In the event that the Escrow Agent
shall be uncertain as to its duties or rights hereunder, the
Escrow Agent shall be entitled to refrain from taking any
action other than to keep safely the Escrow Fund until it
shall (i) receive written instructions signed by the Company
and Darlington or (ii) is directed otherwise by a court of
competent jurisdiction.
(b) The Escrow Agent may act in reliance upon any
instructions signed with a signature believed by it to be
genuine, and may assume that any person who has been
designated by the Company or Darlington to give any written
instructions, notice or receipt, or make any statements in
connection with the provisions hereof, has been duly
authorized to do so. The Escrow Agent shall have no duty to
make inquiry as to the genuineness, accuracy or validity of
any statements or instructions or any signatures on
statements or instructions.
(c) The Escrow Agent shall have the right at any
time to resign hereunder by giving written notice of its
resignation to the Company and Darlington, at the addresses
set forth herein or at such other address as such parties
shall provide, at least thirty (30) days prior to the date
specified for such resignation to take effect. In such
event, the Company and Darlington shall appoint a successor
escrow agent within said thirty (30) days. If a successor
escrow agent is not designated within such period, the
Escrow Agent may appoint a successor escrow agent; provided,
however, that such successor escrow agent shall be
acceptable to the Company and Darlington and shall agree to
abide by the terms and conditions of this Agreement. Upon
the effective date of such resignation, the Escrow Fund
shall be delivered by it to such successor escrow agent. In
the event the Escrow Agent does not appoint a successor
escrow agent within thirty (30) days, the Escrow Fund shall
be delivered to and deposited with a court of competent
jurisdiction to act as successor escrow agent. Upon the
delivery of the Escrow Fund pursuant to this Section 1.5(c)
to a successor escrow agent, the Escrow Agent shall be
relieved of all further liability hereunder.
(d) In the event that the Escrow Agent should at
any time be confronted with inconsistent or conflicting
claims or demands by the parties hereto, the Escrow Agent
shall have the right to interplead said parties in any court
of competent jurisdiction and request that such court
determine the respective rights of such parties with respect
to this Agreement and, upon doing so, the Escrow Agent shall
be released from any obligations or liability to either
party as a consequence of any such claims or demands.
(e) The Escrow Agent may execute any of its
powers or responsibilities hereunder and exercise any rights
hereunder, either directly or by or through its agents or
attorneys. The Escrow Agent shall not be responsible for
and shall not be under a duty to examine, inquire into or
pass upon the validity, binding effect, execution or
sufficiency of this Agreement or of any amendment or
supplement hereto.
2. MISCELLANEOUS
2.1 Notices. Any notice or other communication
required or permitted hereunder shall be in writing in the
English language and shall be deemed to have been given (i) if
personally delivered, when so delivered, (ii) if mailed, five (5)
business days after being placed in the United States mail,
registered or certified, postage prepaid, addressed to the party
to whom it is directed at the address set forth on the signature
page hereof, or (iii) if given by telecopier, when such notice or
communication is transmitted to the telecopier number set forth
on the signature page hereof and written confirmation of receipt
is received. Each of the parties shall be entitled to specify a
different address by giving the other parties notice as
aforesaid.
2.2 Entire Agreement. This Agreement constitutes the
entire agreement among the parties hereto pertaining to the
subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or
written, relating to the subject matter of this Agreement. No
supplement, modification, waiver or termination of this Agreement
shall be valid unless executed by the party to be bound thereby.
No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a
continuing waiver, unless otherwise expressly provided.
2.3 Headings. Section and subsection headings are not
to be considered part of this Agreement and are included solely
for convenience and reference and in no way define, limit or
describe the scope of this Agreement or the intent of any
provisions hereof.
2.4 Successors and Assigns. All of the terms,
provisions and obligations of this Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their
respective heirs, representatives, successors and assigns.
2.5 Governing Law. The validity, construction and
interpretation of this Agreement shall be governed in all
respects by the laws of the State of California applicable to
contracts made and to be performed wholly within that State.
2.6 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each one of which
shall be deemed an original, but all of which shall constitute
one and the same instrument.
2.7 Third Parties. Nothing in this Agreement,
expressed or implied, is intended to confer upon any person other
than the parties hereto and their respective heirs,
representatives, successors and assigns any rights or remedies
under or by reason of this Agreement.
2.8 Attorney's Fees. In the event any party takes
legal action to enforce any of the terms of this Agreement, the
unsuccessful party to such action shall pay the successful
party's expenses (including, but not limited to, attorneys' fees
and costs) incurred in such action.
2.9 Further Assurances. Each party hereto shall, from
time to time at and after the date hereof, execute and deliver
such instruments, documents and assurances and take such further
actions as the other parties reasonably may request to carry out
the purpose and intent of this Agreement.
2.10 Injunctive Relief. Each of the parties hereto
acknowledges and agrees that it would be difficult to fully
compensate the other parties for damages resulting from the
breach or threatened breach of any provision of this Agreement
and, accordingly, that each party shall be entitled to temporary
and injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, to enforce
such provisions without the necessity of proving actual damages
or being required to post any bond or undertaking in connection
with any such action. This provision with respect to injunctive
relief shall not diminish, however, the right of any party to any
other relief or to claim and recover damages.
2.11 Consent To Jurisdiction. Subject to Section 2.12,
each party hereto, to the fullest extent it may effectively do so
under applicable law, irrevocably (i) submits to the exclusive
jurisdiction of any court of the State of California or the
United States of America sitting in the City of Los Angeles over
any suit, action or proceeding arising out of or relating to this
Agreement, (ii) waives and agrees not to assert, by way of
motion, as a defense or otherwise, any claim that it is not
subject to the jurisdiction of any such court, any objection that
it may now or hereafter have to the establishment of the venue of
any such suit, action or proceeding brought in any such court and
any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum, (iii)
agrees that a judgment in any such suit, action or proceeding
brought in any such court shall be conclusive and binding upon
such party and may be enforced in the courts of the United States
of America or the State of California (or any other courts to the
jurisdiction of which such party is or may be subject) by a suit
upon such judgment and (iv) consents to process being served in
any such suit, action or proceeding by mailing a copy thereof by
United States mail, registered or certified, postage prepaid,
return receipt requested, addressed to the party to whom it is
directed at the address set forth on the signature pages hereof.
Each party agrees that such service (i) shall be deemed in every
respect effective service of process upon such party in any such
suit, action or proceeding and (ii) shall, to the fullest extent
permitted by law, be taken and held to be valid personal service
upon and personal delivery to such party.
2.12 Arbitration. Any and all disputes, controversies
or claims arising out of or related to this Agreement, including
without limitation, fraud in the inducement of this Agreement or
the general validity or enforceability of this Agreement, shall
be filed in Los Angeles, California and submitted to final and
binding arbitration under the auspices and rules of the Judicial
Arbitration and Mediation Services, Inc. ("JAMS"), or if it is no
longer in existence, under the auspices and rules of the American
Arbitration Association ("AAA"). All hearings and conferences
shall be conducted within the County of Los Angeles, unless the
parties stipulate otherwise. There shall be one arbitrator who
shall be a retired superior court or federal judge. The parties
agree that they have waived any right to trial by jury. The
decision of the arbitrator shall be final and binding and the
judgment rendered may be entered in any court having
jurisdiction. The prevailing party in any such arbitration
proceeding shall be entitled to its costs and reasonable
attorneys' fees, costs and expenses. The provisions of
California Code of Civil Procedure Sections 1281, et seq. govern
this arbitration provision. In the event that both JAMS and the
AAA decline to accept and administer arbitration of the dispute,
then either party may petition the Superior Court of the State of
California for the County of Los Angeles, to appoint a single
arbitrator in the following manner: (i) the judge to whom the
matter is assigned shall designate three attorneys who are
suitable to serve as arbitrators of the dispute; (ii) each party
shall have the right to strike one attorney from the list of
proposed arbitrators; (iii) the remaining arbitrator shall be
appointed by the court as the single arbitrator and (iv) the
matter shall be administered by, or under the direction of, the
single arbitrator following the "Streamlined Arbitration Rules
and Procedures" of JAMS, as such rules and procedures may be in
effect at the time of commencement of the arbitration proceeding.
This Section 2.12 shall not limit the right of any party to seek
injunctive relief in the courts of the State of California or the
United States of America.
2.13 Construction. This Agreement was reviewed by
legal counsel for each party hereto and is the product of
informed negotiations between the parties hereto. If any part of
this Agreement is deemed to be unclear or ambiguous, it shall be
construed as if it were drafted jointly by the parties. Each
party hereto acknowledges that no party was in a superior
bargaining position regarding the substantive terms of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date and year first set forth
above.
Company: HEMACARE CORPORATION
By ______________________________
Authorized Representative
21101 Oxnard Street
Woodland Hills, California
91367
Telecopier: (818) 251-5300
Darlington: __________________________________
ALAN DARLINGTON
691 Valley Vista
Camarillo, California 93010
Telecopier: (805) 738-0464
Escrow Agent: By
_______________________________
Authorized Representative
____________________________
____________________________
____________________________
Telecopier:
EXHIBIT B-1
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON ITS
EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED OR
OTHERWISE DISPOSED OF UNLESS (i) A REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, SHALL HAVE BECOME
EFFECTIVE WITH RESPECT THERETO AND ALL APPLICABLE QUALIFICATIONS
UNDER STATE SECURITIES LAWS SHALL HAVE BEEN OBTAINED WITH RESPECT
THERETO; OR (ii) A WRITTEN OPINION FROM COUNSEL FOR THE HOLDER
REASONABLY SATISFACTORY TO THE ISSUER HAS BEEN OBTAINED STATING
THAT NO SUCH REGISTRATION OR QUALIFICATION IS REQUIRED.
WARRANT TO PURCHASE COMMON SHARES OF
HEMACARE CORPORATION
For good and valuable consideration, the receipt of
which is hereby acknowledged, Hemacare Corporation, a California
corporation (the "Company"), hereby grants to Alan Darlington
("Darlington"), an irrevocable warrant (the "Warrant") to
purchase up to 250,000 fully paid and nonassessable common shares
of the Company (the "Shares"), adjusted as set forth below, at
the Warrant Price, as defined below, at any time beginning on the
date hereof and ending on September 28, 2006, all subject to the
provisions, terms and conditions set forth below.
1. Exercise; Issuance of Certificates; Payment for Shares.
This Warrant may be exercised by the holder hereof, in whole or
in part (but not as to a fractional Share), and on one or more
occasions, by written notice to the Company at its principal
office at 21101 Oxnard Street, Woodland Hills, California 91367
(or such other office or agency of the Company as it may
designate by notice in writing to the holder hereof at the
address of such holder appearing on the books of the Company) at
any time within the period above named and by payment to the
Company by cashier's check or wire transfer of the Warrant Price
for the number of Shares designated by the holder (but not more
than the number of Shares for which this Warrant then remains
unexercised). The Company agrees that the Shares so purchased
will be deemed to have been issued to the holder hereof as the
record owner of such Shares as of the close of business on the
date on which such notice is received and payment made as
aforesaid. Certificates for the Shares so purchased will be
delivered to the holder hereof within a reasonable time, not
exceeding fifteen (15) business days, after this Warrant has been
exercised, and, unless this Warrant has expired, it will continue
in effect with respect to the number of Shares, if any, as to
which it has not then been exercised.
2. Shares to be Fully Paid; Reservation of Shares. The
Company covenants and agrees as follows:
2.1 All Shares issued upon the exercise of this
Warrant will, upon issuance, be fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issue
thereof.
2.2 During the period within which this Warrant may be
exercised, the Company will at all times have authorized and
reserved for the purpose of issuance or transfer upon exercise of
this Warrant a sufficient number of Shares to provide for the
exercise of this Warrant.
2.3 The Company will take all actions necessary to
assure that the Shares issuable upon the exercise of this Warrant
may be so issued without violation of any applicable law or
regulation, or of any requirements of any securities exchange
upon which the shares of the Company may be listed.
2.4 The Company will not take any action that would
result in an adjustment of the Warrant Price if the total number
of Shares issuable after such action upon exercise of this
Warrant, together with all Shares then outstanding and all Shares
then issuable upon exercise of all rights, options or warrants
(other than this Warrant) and upon conversion of all securities
convertible into or exchangeable for shares of common stock of
the Company, would exceed the total number of Shares then
authorized by the Company's Articles of Incorporation.
3. Warrant Price.
3.1 Initial Warrant Price; Subsequent Adjustment of
Price and Number of Purchasable Shares. The Initial Warrant
Price will be $0.60 per Share, and will be adjusted from time to
time as provided below. The Initial Warrant Price or, if such
price has been adjusted, the price per Share as last adjusted
pursuant to the terms hereof is referred to as the "Warrant
Price" herein. Upon each adjustment of the Warrant Price, the
holder of this Warrant will thereafter be entitled to purchase,
at the Warrant Price resulting from such adjustment, the number
of Shares obtained by multiplying the Warrant Price in effect
immediately before such adjustment by the number of Shares
purchasable pursuant to this Warrant immediately before such
adjustment and dividing the product by the Warrant Price
resulting from such adjustment.
3.2 Subdivision or Combination of Shares. If the
Company at any time while this Warrant, or any portion hereof,
remains outstanding and unexpired shall split, subdivide or
combine the securities as to which purchase rights under this
Warrant exist, into a different number of securities of the same
class, the Warrant Price for such securities shall be
proportionately decreased in the case of a split or subdivision
or proportionately increased in the case of a combination.
3.3 Reclassification. If the Company, at any time
while this Warrant, or any portion hereof, remains outstanding
and unexpired, by reclassification of securities or otherwise
shall change any of the securities as to which purchase rights
under this Warrant exist into the same or a different number of
securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of
securities as would have been issuable as the result of such
change with respect to the securities that were subject to the
purchase rights under this Warrant immediately prior to such
reclassification or other change and the Warrant Price therefor
shall be appropriately adjusted.
3.4 Adjustments for Dividends in Stock or Other
Securities or Property. If while this Warrant, or any portion
hereof, remains outstanding and unexpired the holders of the
securities as to which purchase rights under this Warrant exist
at the time shall have received, or, on or after the record date
fixed for the determination of eligible stockholders, shall have
become entitled to receive, without payment therefor, other or
additional stock or other securities or property (other than
cash) of the Company by way of dividend, then and in each case,
this Warrant shall represent the right to acquire, in addition to
the number of shares of the security receivable upon exercise of
this Warrant, and without payment of any additional consideration
therefor, the amount of such other or additional stock or other
securities or property (other than cash) of the Company that such
holder would hold on the date of such exercise had it been the
holder of record of the security receivable upon exercise of this
Warrant on the date hereof and had thereafter, during the period
from the date hereof to and including the date of such exercise,
retained such shares and/or all other additional stock available
by it as aforesaid during such period, giving effect to all
adjustments called for during such period.
3.5 Reorganization, Reclassification, Consolidation,
Merger or Sale. If any capital reorganization or
reclassification of the Shares of the Company, or any
consolidation or merger of the Company with another corporation
or entity, or the sale of all or substantially all of the
Company's assets to another corporation will be effected in such
a way that holders of Shares will be entitled to receive Shares,
securities or assets with respect to or in exchange for Shares,
then, upon exercise of this Warrant, the holder will thereafter
have the right to receive such Shares, securities or assets as
may be issued or payable with respect to or in exchange for a
number of outstanding Shares equal to the number of Shares
immediately theretofore purchasable and receivable upon the
exercise of this Warrant. If a purchase, tender or exchange
offer is made to and accepted by the holders of more than 50% of
the outstanding Shares of the Company, the Company will not
effect any consolidation, merger or sale with the Person, as
defined below, making such offer or with any Affiliate, as
defined below, of such Person, unless, before the consummation of
such consolidation, merger or sale, the holder of this Warrant is
given at least ten (10) business days notice prior to the
scheduled closing date (the "Closing Date") of such transaction
(which notice shall specify the material terms of such
transaction and the proposed Closing Date). In the event the
holder elects to exercise this Warrant or any portion thereof
following such notice and such consolidation, merger or sale is
not consummated within ten (10) days of the proposed Closing Date
(or any subsequent proposed Closing Date), then the Holder may
rescind its exercise of this Warrant by providing written notice
thereof to the Company, the Company shall take all actions
consistent therewith (including without limitation the immediate
return of the Warrant Price paid with respect to such rescinded
exercise) and this Warrant shall continue in full force and
effect. As used in this paragraph, the term "Person" includes an
individual, a partnership, a corporation, a trust, a joint
venture, a limited liability company, an unincorporated
organization and a government or any department or agency
thereof, and an "Affiliate" of a Person means any Person directly
or indirectly controlling, controlled by or under direct or
indirect common control with, such other Person. A Person will
be deemed to control a corporation or other business entity if
such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of
such corporation, whether through the ownership of voting
securities, by contract or otherwise.
3.6 Notice of Adjustment. Upon any adjustment of the
Warrant Price, the Company will give written notice thereof, by
first-class mail, postage prepaid, addressed to the holder of
this Warrant at the address of such holder as shown on the books
of the Company, which notice will state the Warrant Price
resulting from such adjustment and the increase or decrease, if
any, in the number of Shares purchasable at such price upon the
exercise of this Warrant, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation
is based.
3.7 Other Notices. If at any time:
3.7.1 The Company declares a cash dividend on
its Shares payable at a rate in excess of the rate of the last
cash dividend theretofore paid;
3.7.2 The Company declares a dividend on its
Shares payable in Shares or pays a special dividend or other
distribution (other than regular cash dividends) to the holders
of its Shares;
3.7.3 The shareholders of the Company approve
any capital reorganization from or reclassification of the Shares
of the Company, or any consolidation or merger of the Company
with, or sale of all or substantially all of its assets to,
another corporation or other entity; or
3.7.4 There is a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
Then the Company will give, by first-class mail,
postage prepaid, addressed to the holder of this Warrant at the
address of such holder as shown on the books of the Company,
(i) at least twenty (20) days' prior written notice of the date
on which the books of the Company will close or a record will be
taken for such dividend or distribution or for determining rights
to vote in respect of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding
up, and (ii) in the case of such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, at least twenty (20) days' prior
written notice of the date when the same will take place. Any
notice required by clause (i) will also specify, in the case of
any such dividend or distribution, the date on which the holders
of Shares will be entitled thereto, and any notice required by
(ii) will also specify the anticipated date on which the holders
of Shares will be entitled to exchange their Shares for
securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, as the case may be.
4. Listing. If any Shares required to be reserved for the
purpose of issue upon the exercise of this Warrant require
registration with or approval of any governmental authority under
any federal or state law (other than the filing of a Registration
Statement under the Securities Act of 1933, as then in effect
(the "Securities Act"), or any similar federal or state law then
in effect), or listing on any securities exchange, before such
Shares may be issued upon such exercise, the Company will, at its
expense and as expeditiously as possible, use its best efforts to
cause such Shares to be duly registered or approved or listed on
the relevant securities exchange, as the case may be.
5. Closing of Books. The Company will at no time close
its transfer books against the transfer of this Warrant or of any
Shares issued or issuable upon the exercise of this Warrant in
any manner which interferes with the timely exercise of this
Warrant.
6. Definition of Shares. As used in this Warrant the term
"Shares" includes the Company's authorized common stock as
constituted on the date hereof and also includes any shares of
any class of stock or other equity securities of the Company
thereafter authorized which will not be limited in respect of the
rights of the holders thereof to participate in dividends or in
the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of the Company; provided
that, except as provided in paragraph 3.5, the Shares purchasable
pursuant to this Warrant will include only Shares designated as
"common shares" of the Company or, in the case of any
reclassification of the outstanding Shares, the Shares,
securities or assets provided for in paragraph 3.5.
7. No Voting Rights. Neither Darlington nor any other
person legally entitled to exercise this Warrant shall be
entitled to any of the rights or privileges of a shareholder of
the Company in respect of any Shares issuable upon any exercise
of this Warrant unless and until a certificate or certificates
representing such Shares shall have been actually issued and
delivered. No Shares shall be issued and delivered upon the
exercise of this Warrant unless and until there shall have been
full compliance with all applicable requirements of the
Securities Act of 1933, as amended (whether by registration or
satisfaction of an exemption therefrom), all applicable listing
requirements of a national securities exchange on which shares of
the same class are listed and any other requirements of law or of
any regulatory bodies having jurisdiction over such issuance and
delivery.
8. Warrant Not Transferable. This Warrant and all other
rights and privileges granted hereby shall not be transferred,
either voluntarily or by operation of law, otherwise than by will
or the laws of descent and distribution or pursuant to a
Qualified Domestic Relations Order. Upon any attempt to so
transfer or otherwise dispose of this Warrant or any other right
or privileges granted hereby contrary to the provisions hereof,
this Warrant and all rights and privileges contained herein shall
immediately become null and void and of no further force or
effect.
9. Descriptive Headings and Governing Law. The
descriptive headings of the several Articles and paragraphs of
this Warrant are inserted for convenience only and do not
constitute a part of this Warrant. This Warrant is being
delivered and is intended to be performed in the State of
California and will be construed and enforced in accordance with,
and the rights of the parties will be governed by, the law of
such State.
10. Tax Withholding. The Company shall have the right to
require Darlington or any other person legally entitled to
exercise this Warrant to pay the Company any federal, state, or
local taxes of any kind required by law to be withheld with
respect to the exercise of this Warrant or the sale of the Shares
issued hereunder or to take such other action as may be necessary
in the opinion of the Company to satisfy all obligations for the
payment of such taxes.
11. Legend. All certificates representing Shares shall
bear the following legend:
THE SHARES OF COMMON STOCK EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF
UNLESS (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, SHALL HAVE BECOME EFFECTIVE WITH RESPECT
THERETO AND ALL APPLICABLE QUALIFICATIONS UNDER STATE SECURITIES
LAWS SHALL HAVE BEEN OBTAINED WITH RESPECT THERETO; OR (ii) A
WRITTEN OPINION FROM COUNSEL FOR THE HOLDER REASONABLY
SATISFACTORY TO THE ISSUER HAS BEEN OBTAINED STATING THAT NO SUCH
REGISTRATION OR QUALIFICATION IS REQUIRED.
IN WITNESS WHEREOF, the Company has caused this Warrant to
be signed and attested by its duly authorized officers, as of
______________________.
HEMACARE CORPORATION
By:
------------------------
Authorized Representative
EXHIBIT B-2
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON ITS
EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR QUALIFIED UNDER APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED OR
OTHERWISE DISPOSED OF UNLESS (i) A REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, SHALL HAVE BECOME
EFFECTIVE WITH RESPECT THERETO AND ALL APPLICABLE QUALIFICATIONS
UNDER STATE SECURITIES LAWS SHALL HAVE BEEN OBTAINED WITH RESPECT
THERETO; OR (ii) A WRITTEN OPINION FROM COUNSEL FOR THE HOLDER
REASONABLY SATISFACTORY TO THE ISSUER HAS BEEN OBTAINED STATING
THAT NO SUCH REGISTRATION OR QUALIFICATION IS REQUIRED.
WARRANT TO PURCHASE COMMON SHARES OF
HEMACARE CORPORATION
For good and valuable consideration, the receipt of
which is hereby acknowledged, Hemacare Corporation, a California
corporation (the "Company"), hereby grants to Alan Darlington
("Darlington"), an irrevocable warrant (the "Warrant") to
purchase up to 20,000 fully paid and nonassessable common shares
of the Company (the "Shares"), adjusted as set forth below, at
the Warrant Price, as defined below, at any time beginning on the
date hereof and ending on September 28, 2006, all subject to the
provisions, terms and conditions set forth below.
1. Exercise; Issuance of Certificates; Payment for Shares.
This Warrant may be exercised by the holder hereof, in whole or
in part (but not as to a fractional Share), and on one or more
occasions, by written notice to the Company at its principal
office at 21101 Oxnard Street, Woodland Hills, California 91367
(or such other office or agency of the Company as it may
designate by notice in writing to the holder hereof at the
address of such holder appearing on the books of the Company) at
any time within the period above named and by payment to the
Company by cashier's check or wire transfer of the Warrant Price
for the number of Shares designated by the holder (but not more
than the number of Shares for which this Warrant then remains
unexercised). The Company agrees that the Shares so purchased
will be deemed to have been issued to the holder hereof as the
record owner of such Shares as of the close of business on the
date on which such notice is received and payment made as
aforesaid. Certificates for the Shares so purchased will be
delivered to the holder hereof within a reasonable time, not
exceeding fifteen (15) business days, after this Warrant has been
exercised, and, unless this Warrant has expired, it will continue
in effect with respect to the number of Shares, if any, as to
which it has not then been exercised.
2. Shares to be Fully Paid; Reservation of Shares. The
Company covenants and agrees as follows:
2.1 All Shares issued upon the exercise of this
Warrant will, upon issuance, be fully paid and nonassessable and
free from all taxes, liens and charges with respect to the issue
thereof.
2.2 During the period within which this Warrant may be
exercised, the Company will at all times have authorized and
reserved for the purpose of issuance or transfer upon exercise of
this Warrant a sufficient number of Shares to provide for the
exercise of this Warrant.
2.3 The Company will take all actions necessary to
assure that the Shares issuable upon the exercise of this Warrant
may be so issued without violation of any applicable law or
regulation, or of any requirements of any securities exchange
upon which the shares of the Company may be listed.
2.4 The Company will not take any action that would
result in an adjustment of the Warrant Price if the total number
of Shares issuable after such action upon exercise of this
Warrant, together with all Shares then outstanding and all Shares
then issuable upon exercise of all rights, options or warrants
(other than this Warrant) and upon conversion of all securities
convertible into or exchangeable for shares of common stock of
the Company, would exceed the total number of Shares then
authorized by the Company's Articles of Incorporation.
3. Warrant Price.
3.1 Initial Warrant Price; Subsequent Adjustment of
Price and Number of Purchasable Shares. The Initial Warrant
Price will be $1.20 per Share, and will be adjusted from time to
time as provided below. The Initial Warrant Price or, if such
price has been adjusted, the price per Share as last adjusted
pursuant to the terms hereof is referred to as the "Warrant
Price" herein. Upon each adjustment of the Warrant Price, the
holder of this Warrant will thereafter be entitled to purchase,
at the Warrant Price resulting from such adjustment, the number
of Shares obtained by multiplying the Warrant Price in effect
immediately before such adjustment by the number of Shares
purchasable pursuant to this Warrant immediately before such
adjustment and dividing the product by the Warrant Price
resulting from such adjustment.
3.2 Subdivision or Combination of Shares. If the
Company at any time while this Warrant, or any portion hereof,
remains outstanding and unexpired shall split, subdivide or
combine the securities as to which purchase rights under this
Warrant exist, into a different number of securities of the same
class, the Warrant Price for such securities shall be
proportionately decreased in the case of a split or subdivision
or proportionately increased in the case of a combination.
3.3 Reclassification. If the Company, at any time
while this Warrant, or any portion hereof, remains outstanding
and unexpired, by reclassification of securities or otherwise
shall change any of the securities as to which purchase rights
under this Warrant exist into the same or a different number of
securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of
securities as would have been issuable as the result of such
change with respect to the securities that were subject to the
purchase rights under this Warrant immediately prior to such
reclassification or other change and the Warrant Price therefor
shall be appropriately adjusted.
3.4 Adjustments for Dividends in Stock or Other
Securities or Property. If while this Warrant, or any portion
hereof, remains outstanding and unexpired the holders of the
securities as to which purchase rights under this Warrant exist
at the time shall have received, or, on or after the record date
fixed for the determination of eligible stockholders, shall have
become entitled to receive, without payment therefor, other or
additional stock or other securities or property (other than
cash) of the Company by way of dividend, then and in each case,
this Warrant shall represent the right to acquire, in addition to
the number of shares of the security receivable upon exercise of
this Warrant, and without payment of any additional consideration
therefor, the amount of such other or additional stock or other
securities or property (other than cash) of the Company that such
holder would hold on the date of such exercise had it been the
holder of record of the security receivable upon exercise of this
Warrant on the date hereof and had thereafter, during the period
from the date hereof to and including the date of such exercise,
retained such shares and/or all other additional stock available
by it as aforesaid during such period, giving effect to all
adjustments called for during such period.
3.5 Reorganization, Reclassification, Consolidation,
Merger or Sale. If any capital reorganization or
reclassification of the Shares of the Company, or any
consolidation or merger of the Company with another corporation
or entity, or the sale of all or substantially all of the
Company's assets to another corporation will be effected in such
a way that holders of Shares will be entitled to receive Shares,
securities or assets with respect to or in exchange for Shares,
then, upon exercise of this Warrant, the holder will thereafter
have the right to receive such Shares, securities or assets as
may be issued or payable with respect to or in exchange for a
number of outstanding Shares equal to the number of Shares
immediately theretofore purchasable and receivable upon the
exercise of this Warrant. If a purchase, tender or exchange
offer is made to and accepted by the holders of more than 50% of
the outstanding Shares of the Company, the Company will not
effect any consolidation, merger or sale with the Person, as
defined below, making such offer or with any Affiliate, as
defined below, of such Person, unless, before the consummation of
such consolidation, merger or sale, the holder of this Warrant is
given at least ten (10) business days notice prior to the
scheduled closing date (the "Closing Date") of such transaction
(which notice shall specify the material terms of such
transaction and the proposed Closing Date). In the event the
holder elects to exercise this Warrant or any portion thereof
following such notice and such consolidation, merger or sale is
not consummated within ten (10) days of the proposed Closing Date
(or any subsequent proposed Closing Date), then the Holder may
rescind its exercise of this Warrant by providing written notice
thereof to the Company, the Company shall take all actions
consistent therewith (including without limitation the immediate
return of the Warrant Price paid with respect to such rescinded
exercise) and this Warrant shall continue in full force and
effect. As used in this paragraph, the term "Person" includes an
individual, a partnership, a corporation, a trust, a joint
venture, a limited liability company, an unincorporated
organization and a government or any department or agency
thereof, and an "Affiliate" of a Person means any Person directly
or indirectly controlling, controlled by or under direct or
indirect common control with, such other Person. A Person will
be deemed to control a corporation or other business entity if
such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of
such corporation, whether through the ownership of voting
securities, by contract or otherwise.
3.6 Notice of Adjustment. Upon any adjustment of the
Warrant Price, the Company will give written notice thereof, by
first-class mail, postage prepaid, addressed to the holder of
this Warrant at the address of such holder as shown on the books
of the Company, which notice will state the Warrant Price
resulting from such adjustment and the increase or decrease, if
any, in the number of Shares purchasable at such price upon the
exercise of this Warrant, setting forth in reasonable detail the
method of calculation and the facts upon which such calculation
is based.
3.7 Other Notices. If at any time:
3.7.1 The Company declares a cash dividend on
its Shares payable at a rate in excess of the rate of the last
cash dividend theretofore paid;
3.7.2 The Company declares a dividend on its
Shares payable in Shares or pays a special dividend or other
distribution (other than regular cash dividends) to the holders
of its Shares;
3.7.3 The shareholders of the Company approve
any capital reorganization from or reclassification of the Shares
of the Company, or any consolidation or merger of the Company
with, or sale of all or substantially all of its assets to,
another corporation or other entity; or
3.7.4 There is a voluntary or involuntary
dissolution, liquidation or winding up of the Company;
Then the Company will give, by first-class mail,
postage prepaid, addressed to the holder of this Warrant at the
address of such holder as shown on the books of the Company,
(i) at least twenty (20) days' prior written notice of the date
on which the books of the Company will close or a record will be
taken for such dividend or distribution or for determining rights
to vote in respect of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding
up, and (ii) in the case of such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, at least twenty (20) days' prior
written notice of the date when the same will take place. Any
notice required by clause (i) will also specify, in the case of
any such dividend or distribution, the date on which the holders
of Shares will be entitled thereto, and any notice required by
(ii) will also specify the anticipated date on which the holders
of Shares will be entitled to exchange their Shares for
securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding up, as the case may be.
4. Listing. If any Shares required to be reserved for the
purpose of issue upon the exercise of this Warrant require
registration with or approval of any governmental authority under
any federal or state law (other than the filing of a Registration
Statement under the Securities Act of 1933, as then in effect
(the "Securities Act"), or any similar federal or state law then
in effect), or listing on any securities exchange, before such
Shares may be issued upon such exercise, the Company will, at its
expense and as expeditiously as possible, use its best efforts to
cause such Shares to be duly registered or approved or listed on
the relevant securities exchange, as the case may be.
5. Closing of Books. The Company will at no time close
its transfer books against the transfer of this Warrant or of any
Shares issued or issuable upon the exercise of this Warrant in
any manner which interferes with the timely exercise of this
Warrant.
6. Definition of Shares. As used in this Warrant the term
"Shares" includes the Company's authorized common stock as
constituted on the date hereof and also includes any shares of
any class of stock or other equity securities of the Company
thereafter authorized which will not be limited in respect of the
rights of the holders thereof to participate in dividends or in
the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of the Company; provided
that, except as provided in paragraph 3.5, the Shares purchasable
pursuant to this Warrant will include only Shares designated as
"common shares" of the Company or, in the case of any
reclassification of the outstanding Shares, the Shares,
securities or assets provided for in paragraph 3.5.
7. No Voting Rights. Neither Darlington nor any other
person legally entitled to exercise this Warrant shall be
entitled to any of the rights or privileges of a shareholder of
the Company in respect of any Shares issuable upon any exercise
of this Warrant unless and until a certificate or certificates
representing such Shares shall have been actually issued and
delivered. No Shares shall be issued and delivered upon the
exercise of this Warrant unless and until there shall have been
full compliance with all applicable requirements of the
Securities Act of 1933, as amended (whether by registration or
satisfaction of an exemption therefrom), all applicable listing
requirements of a national securities exchange on which shares of
the same class are listed and any other requirements of law or of
any regulatory bodies having jurisdiction over such issuance and
delivery.
8. Warrant Not Transferable. This Warrant and all other
rights and privileges granted hereby shall not be transferred,
either voluntarily or by operation of law, otherwise than by will
or the laws of descent and distribution or pursuant to a
Qualified Domestic Relations Order. Upon any attempt to so
transfer or otherwise dispose of this Warrant or any other right
or privileges granted hereby contrary to the provisions hereof,
this Warrant and all rights and privileges contained herein shall
immediately become null and void and of no further force or
effect.
9. Descriptive Headings and Governing Law. The
descriptive headings of the several Articles and paragraphs of
this Warrant are inserted for convenience only and do not
constitute a part of this Warrant. This Warrant is being
delivered and is intended to be performed in the State of
California and will be construed and enforced in accordance with,
and the rights of the parties will be governed by, the law of
such State.
10. Tax Withholding. The Company shall have the right to
require Darlington or any other person legally entitled to
exercise this Warrant to pay the Company any federal, state, or
local taxes of any kind required by law to be withheld with
respect to the exercise of this Warrant or the sale of the Shares
issued hereunder or to take such other action as may be necessary
in the opinion of the Company to satisfy all obligations for the
payment of such taxes.
11. Legend. All certificates representing Shares shall
bear the following legend:
THE SHARES OF COMMON STOCK EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
QUALIFIED UNDER APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF
UNLESS (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, SHALL HAVE BECOME EFFECTIVE WITH RESPECT
THERETO AND ALL APPLICABLE QUALIFICATIONS UNDER STATE SECURITIES
LAWS SHALL HAVE BEEN OBTAINED WITH RESPECT THERETO; OR (ii) A
WRITTEN OPINION FROM COUNSEL FOR THE HOLDER REASONABLY
SATISFACTORY TO THE ISSUER HAS BEEN OBTAINED STATING THAT NO SUCH
REGISTRATION OR QUALIFICATION IS REQUIRED.
IN WITNESS WHEREOF, the Company has caused this Warrant to
be signed and attested by its duly authorized officers, as of
________________.
HEMACARE CORPORATION
By:
-----------------------------
Authorized Representative