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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1998
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ____________ to _____________
Commission File Number 0-15223
HEMACARE CORPORATION
(Exact name of registrant as specified in its charter)
State or other jurisdiction of I.R.S. Employer I.D.
incorporation or organization: California Number: 95-3280412
4954 Van Nuys Boulevard
Sherman Oaks, California 91403
(Address of principal executive offices) (Zip Code)
___________________
Registrant's telephone number, including area code: (818) 986-3883
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days: YES /X/ NO / /
As of May 12, 1998, 7,281,120 shares of Common Stock of the Registrant were
issued and outstanding.
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<PAGE> 2
INDEX
HEMACARE CORPORATION
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated balance sheet -- March 31, 1998 and December 31, 1997
Consolidated statements of operations -- Three months ended March 31,
1998 and 1997
Consolidated statements of cash flows -- Three months ended March 31,
1998 and 1997
Notes to consolidated financial statements -- March 31, 1998
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
Item 6. Exhibits
SIGNATURES
2
<PAGE> 3
Part I. Financial Information
Item 1. Financial Statements
HEMACARE CORPORATION
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
March 31, December 31,
1998 1997
(Unaudited)
------------ -----------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents............................ $ 889,000 $ 1,249,000
Marketable securities................................ 672,000 363,000
Accounts receivable, net of allowance for
doubtful accounts - $81,000 (1998 and 1997)........ 1,827,000 1,561,000
Product inventories.................................. 47,000 63,000
Supplies............................................. 249,000 341,000
Prepaid expenses..................................... 96,000 123,000
Note receivable from related party - current......... 24,000 24,000
------------ ------------
Total current assets..................... 3,804,000 3,724,000
Plant and equipment, net of accumulated
depreciation and amortization of
$1,724,000 (1998) and $1,690,000 (1997).............. 554,000 585,000
Note receivable from related party - non-current....... 61,000 65,000
Other assets........................................... 10,000 10,000
------------ ------------
$ 4,429,000 $ 4,384,000
============ ============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable..................................... $ 825,000 $ 659,000
Accrued payroll and payroll taxes.................... 389,000 493,000
Other accrued expenses............................... 324,000 366,000
Current obligations under capital leases............. 131,000 140,000
Reserve for discontinued operations.................. 119,000 115,000
------------ ------------
Total current liabilities................ 1,788,000 1,773,000
Obligations under capital leases, net
of current portion................................... 181,000 209,000
Commitments and contingencies..........................
Shareholders' equity:
Common stock, without par value - 20,000,000
shares authorized, 7,281,120 issued and
outstanding in 1998 and 7,190,710 in 1997........... 13,557,000 13,515,000
Accumulated deficit.................................. (11,097,000) (11,113,000)
------------ ------------
Total shareholders' equity............... 2,460,000 2,402,000
------------ ------------
$ 4,429,000 $ 4,384,000
============ ============
</TABLE>
The accompanying notes are an integral part of these
consolidated balance sheets.
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<PAGE> 4
HEMACARE CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTIION>
Three months ended March 31,
1998 1997
------------- -------------
<S> <C> <C>
Revenues:
Blood management programs......................... $ 851,000 $ 1,072,000
Regional operations
Blood products.................................. 582,000 718,000
Blood services.................................. 1,484,000 1,034,000
------------ ------------
Total revenue................................. 2,917,000 2,824,000
Operating costs and expenses:
Blood management programs......................... 814,000 1,124,000
Regional operations
Blood products.................................. 468,000 526,000
Blood services.................................. 1,118,000 685,000
------------ ------------
Total operating costs and expense............ 2,400,000 2,335,000
------------ ------------
Operating profit............................. 517,000 489,000
General and administrative expense.................. 501,000 518,000
Income (loss) from continuing operations
before income taxes............................... 16,000 (29,000)
Provision for income taxes.......................... - -
------------ ------------
Income (loss) from continuing operations............ 16,000 (29,000)
Discontinued operations:
Gain from disposal of discontinued operations - 120,000
------------ ------------
Net income..................................... $ 16,000 $ 91,000
============ ============
Basic and diluted per share amounts:
Income (loss) from continuing operations.......... $ 0.00 $ 0.00
Income from discontinued operations............... - 0.01
------------ ------------
Net income..................................... $ 0.00 $ 0.01
============ ============
Weighted average common shares used to compute
basic earnings (loss) per share................... 7,197,515 7,177,515
============ ============
Weighted average common shares and equivalents
used to compute diluted earnings (loss)
per share.......................................... 7,197,515 7,202,831
============ ============
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
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<PAGE> 5
HEMACARE CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Three months ended March 31,
1998 1997
------------ ------------
<S> <C> <C>
Cash flows from operating activities:
Net Income................................................ $ 16,000 $ 91,000
Adjustments to reconcile net income to net cash provided
by (used in) operating activities:
Gain on disposal of discontinued operations........... - (120,000)
Depreciation and amortization......................... 34,000 65,000
Issuance of common stock and options for compensation. 9,000 -
Changes in operating assets and liabilities:
Decrease (increase) in accounts receivable............ (266,000) 184,000
Decrease (increase) in inventories, supplies
and prepaid expenses................................. 134,000 (107,000)
Decrease in other assets, net......................... - 2,000
Increase in accounts payable and accrued expenses..... 53,000 144,000
Proceeds from discontinued operations................. 5,000 120,000
------------ ------------
Net cash provided by (used in) operating
activities........................................... (15,000) 379,000
Cash flows from investing activities:
Decrease in note receivable from related party............ 4,000 13,000
(Increase) decrease in marketable securities.............. (309,000) 31,000
Purchase of plant and equipment, net...................... (3,000) (6,000)
------------ ------------
Net cash provided by (used in) investing activities....... (308,000) 38,000
Cash flows from financing activities:
Principal payments on line of credit and capital leases... (37,000) (45,000)
------------ ------------
Net cash used in financing activities..................... (37,000) (45,000)
------------ ------------
Increase (decrease) in cash and cash equivalents............ (360,000) 372,000
Cash and cash equivalents at beginning of period............ 1,249,000 1,136,000
------------ ------------
Cash and cash equivalents at end of period.................. $ 889,000 $ 1,508,000
============ ============
Supplemental disclosure:
Interest paid............................................. $ 4,000 $ 15,000
============ ============
Issuance of common stock to employee 401k plan............ $ 42,000 $ -
============ ============
</TABLE>
The accompanying notes are an integral part of these
consolidated financial statements.
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<PAGE> 6
HemaCare Corporation
Notes to Consolidated Financial Statements
Note 1 - Basis of Presentation and General Information
- ------------------------------------------------------
The accompanying unaudited consolidated financial statements of HemaCare
Corporation (the "Company" or "HemaCare') have been prepared in
accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Rule 10-
01 of Regulation S-X. In the opinion of management, all adjustments
(consisting of normal recurring accruals) considered necessary for a fair
presentation have been included. Operating results for the three months
ended March 31, 1998 are not necessarily indicative of the results that
may be expected for the year ending December 31, 1998. Certain 1997
amounts have been reclassified to conform to the 1998 presentation. For
further information, refer to the consolidated financial statements and
footnotes thereto included in the Company's Annual Report on Form 10-K for
the year ended December 31, 1997.
From 1990 to November 1995, the Company, through its wholly-owned
subsidiary HemaBiologics, Inc. ("HBI"), conducted research and development
of Immupath, an anti-HIV hyperimmune plasma-based product intended to be
used in the treatment of Acquired Immune Deficiency Syndrome. In November
of 1995, the Company discontinued the operations of HBI. (See Note 2
below.)
In September 1995, the Company formed Gateway Community Blood Program,
Inc., a wholly-owned subsidiary incorporated in Missouri, to provide blood
products and services in Missouri and Illinois. In August 1997, Gateway's
operations were sold.
Note 2 - Discontinued Operations
- --------------------------------
In November 1995, the Company discontinued the operations of HBI,
including the research and development of Immupath and the associated
specialty plasma business. In June 1996, the Company agreed to sell
substantially all the tangible assets of the discontinued operations and
the FDA source plasma licenses. In the first quarter of 1997, the Company
received the final proceeds from the sale and recognized a $120,000 gain
on disposal of discontinued operations.
Note 3 - Line of Credit
- -----------------------
Since August 1991, the Company has maintained a line of credit with a
commercial bank secured by its accounts receivable, inventory and
equipment. The credit line is in effect through June 30, 1998. Under the
terms of the credit line agreement, the Company may borrow up to 70% of
eligible accounts receivable, up to a maximum of $700,000, and must
maintain certain financial ratios. The Company was in compliance with all
covenants of its credit line agreement at March 31, 1998. Interest on
credit line borrowings is at the lender's prime rate (8.25% at March 31,
1998) plus one-half of a percentage point. As of March 31, 1998, there
was no balance outstanding under the line of credit.
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Note 4 - Commitments and Contingencies
- ---------------------------------------
On March 12, 1997, the Company was notified of a lawsuit filed by an
investment banking firm retained by the Company in connection with the
August 1996 private placement of its common stock, seeking recovery of
damages in the amount of approximately $60,000. The Company intends to
vigorously defend this claim, and its ultimate resolution is not expected
to have a material impact on the Company's financial condition or its
results of operations.
Note 5 - Related Party Information
- ----------------------------------
In 1995 and 1994, the Company made a series of personal loans to Dr.
Joshua Levy, then an officer and director of the Company totaling $98,000.
In January 1996, these individual notes were consolidated into a
promissory note, collateralized by HemaCare stock owned by Dr. Levy, which
accrued interest at a rate equal to the rate paid by the Company under its
line of credit. The Company received installment payments in accordance
with the terms of this note of $15,000 in January 1996 and January 1997.
Effective July 31, 1997, the Company entered into an agreement with Dr.
Levy that superceded the 1996 note. Under the terms of this agreement, the
Company agreed to forgive the remaining balance of Dr. Levy's note,
including interest accrued at a 10% annual rate, over a five-year period
so long as Dr. Levy remains employed by the Company.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
HemaCare's operations include blood management programs ("Blood Management
Programs" or "BMPs") and regional sales of blood products ("Blood
Products") and blood services ("Blood Services"). A HemaCare Blood
Management Program allows a hospital to outsource its blood procurement and
donor center management operations. The Blood Management Program model was
introduced in late 1995 with the Gateway Community Blood Program ("Gateway")
in St. Louis, Missouri. In 1996, two Southern California BMPs were
established. One with the University of Southern California, in February 1996,
and another with Citrus Valley Health Partners, in October 1996. Gateway's
operations were sold in August 1997. Blood Products include apheresis
platelets and whole blood components such as red blood cells and plasma
products. Blood Services include therapeutic apheresis procedures, stem cell
collection and cryopreservation and donor testing.
All comparisons within the following discussions are to the comparable periods
of the previous year.
Revenues and Operating Profit
- -----------------------------
Total revenues increased 3% ($93,000) in the first quarter of 1998. The
increase was due to higher Blood Services revenue, partially offset by lower
BMP (Gateway) and Blood Products revenues. The Company's operating profit as a
percentage of sales ("profit margin") increased to 18% in the first quarter of
1998 from 17% in the comparable quarter of 1997, due primarily to the
elimination of losses from its Gateway operations.
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<PAGE> 8
Blood Management Programs
- --------------------------
Revenue decreased 21% ($222,000) in the first quarter of 1998, and operating
profit increased to $37,000 in 1998 quarter from a loss of $52,000 in 1997.
Both changes resulted from the sale of Gateway's operations in August 1997.
The 1998 increase in operating profit was partially offset by higher Citrus
Valley losses related to donor center operating costs and higher red blood
cell acquisition costs.
Regional Operations
- -------------------
Blood Products
Blood Products revenues decreased 19% ($136,000) in the first quarter of 1998
due to lower apheresis platelet prices and a decrease in the volume of whole
blood components sold by the Company. In mid-1997, the Company reduced its
apheresis platelet prices for higher volume customers due to competitive
pressures. The decreased volume of whole blood component sales was due to the
continuing shortage of red blood cells available for sale.
First quarter operating profit on Blood Product sales decreased to 20% in 1998
from 27% in 1997. The decrease was due primarily to lower average apheresis
platelet prices and higher red blood cell acquisition costs.
Blood Services
Blood Services revenues increased 44% ($450,000) in the first quarter of 1998
due primarily to the higher volume of therapeutic procedures and testing
services performed by the Company. In addition, the average price charged for a
therapeutic procedure increased in the 1998 quarter, in response to higher
albumin acquisition costs. However, the price increase did not entirely offset
the higher albumin cost.
The profit margin on Blood Services revenues decreased to 25% in the first
quarter of 1998 from 34% in the comparable quarter of 1997, due to higher
albumin acquisition costs.
General and Administrative Expense
- ----------------------------------
General and administrative expense decreased 3% ($17,000) in the first quarter
of 1998. The decrease was primarily due to lower legal fees.
Discontinued Operations
- -----------------------
In November 1995, the Company discontinued its Immupath related research and
development activities and established a reserve for operating losses and
contingent liabilities related to the disposal of its research and development
and related specialty plasma businesses.
During the wind down of the research and development operations, the Company
manufactured a supply of Immupath sufficient for the patients still receiving
treatment for a limited period of time. There are currently three patients
receiving Immupath treatments.
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<PAGE> 9
In March 1997, the Company completed disposition of the assets of the
discontinued operations and recognized a further $120,000 gain on disposal. In
the fourth quarter of 1997, the Company reviewed and revised its estimated
costs of discontinued operations and recognized an additional gain of
$173,000. The Company does not expect the discontinued operations to have a
material impact on its future operating performance.
Liquidity and Capital Resources
- -------------------------------
At March 31, 1998, the Company had cash and cash equivalents of $1,561,000 and
working capital of $2,016,000. The Company has a $700,000 line of credit with
a commercial bank which is in effect through June 30, 1998. Under the terms of
the credit line agreement, the Company may borrow up to 70% of eligible
accounts receivable, up to a maximum of $700,000, and must maintain certain
financial ratios including working capital, as defined, of $500,000 and a
tangible net worth of not less than $1.75 million. The Company was in
compliance with all covenants of its borrowing agreement at March 31, 1998,
and there were no borrowings outstanding on the line of credit at that date.
The Company's common stock is listed on the Nasdaq Small Cap Market
("Nasdaq"). In August 1997, Nasdaq adopted NASD Marketplace Rule 4310(c)(04)
(the "Rule") to strengthen both the quantitative and qualitative listing
requirements for issuers. The Rule, which became effective February 23, 1998,
requires among other things, that issuers listed on the Nasdaq SmallCap Market
maintain a minimum bid price of $1.00 and net tangible assets, as defined, of
at least $2 million. The minimum bid price of the Company's stock as of May 12,
1998 was less than $1.00, and its net tangible assets were $2.5 million at
March 31, 1998. On February 27, 1998, Nasdaq notified the Company that it is
not in compliance with the minimum bid price requirement. The Company has until
May 28, 1998 to regain compliance with the Rule. Compliance may be achieved if
the Company's common stock trades at or above the minimum requirement of one
dollar for at least 10 consecutive trade days. At the Company's annual
shareholder's meeting which is scheduled for June 29, 1998, shareholders will
vote on a proposal which, if approved, would authorize the Company's Board of
Directors to declare a reverse stock split. Although the ultimate effect of a
reverse stock split on the per share price of the Company's common stock can
not be accurately predicted, the Company is hopeful that the per share price of
stock, as quoted on Nasdaq, will be increased by a reverse stock split. If the
Company is unable to achieve compliance by May 28, 1998, Nasdaq has informed
the Company that it will issue a delisting letter which will identify the
review procedures available to the Company at that time. The Company intends to
file an appeal with Nasdaq requesting an extension of the May 28, 1998
deadline. In the event that the Company's common stock is no longer listed on
the Nasdaq SmallCap Market or a national securities exchange, the liquidity of
the Company's common stock would be adversely affected and the Company's
ability to raise capital may be impaired.
The Company's blood products and services businesses, other than BMP blood
donor center operations ("Center"), are profitable and cash flow positive.
Center operations are expected to continue to be unprofitable until a higher
level of Center blood collections can be achieved. The operating losses of the
Centers reduce the overall profitability of the USC and Citrus Valley BMP
arrangements to the Company. The Company has implemented plans to achieve a
breakeven level of collections and sales for these Centers. Although these
plans have decreased the USC and Citrus Valley Center losses, there can be no
assurance that the USC and Citrus Valley Centers will be able to achieve and
maintain a breakeven or
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profitable level of collections. In addition, a high
percentage of the products sold to the Citrus Valley BMP are red blood cells.
Despite an 8% increase in the Citrus Valley price for red blood cells which
was effective October 1, 1997, increases in the cost the Company must pay to
acquire or produce red blood cells has reduced the operating profit margin on
these sales.
Amendments to the Federal self-referral laws and related regulations could
restrict the Company's ability to provide therapeutic services to Dr. Levy's
patients who are covered by Medicare or MediCal. It is estimated that revenues
from these patients represented approximately 2.5% of the Company's 1997
revenues. These regulations are complex, and the Company requested a
clarification of their application to its business from Health Care Financing
Administration ("HCFA") in early 1996. To date, the Company has not received
a response to this request. In January 1998, new proposed regulations were
issued for comment. The proposed regulations do not specifically address
therapeutic apheresis services, and the Company has requested a revision of
these regulations to provide an exemption for therapeutic apheresis services
similar to the exemption provided for dialysis services. The comment period
for the proposed regulations ended in early May 1998, and the new regulations
will be issued sometime after that date. If the new regulations do not provide
an exemption for therapeutic apheresis services, the Company could lose the
revenue from its services to Dr. Levy's Medicare and MediCal patients,
approximately $84,000 in the first quarter of 1998.
Management is evaluating opportunities to develop and implement new
outsourcing models, including its Blood Management Program. Because of the
increase in the cost of acquiring red blood cells, it is likely that future
HemaCare outsourcing arrangements will be focused on providing specialized
donation services, apheresis based products and services, and other technology
based blood therapies. However, development and introduction of a revised
Blood Management Program model or other outsourcing programs may require that
the Company obtain additional financing or partner with other blood product
and service providers. There can be no assurance that the Company will be
successful in developing and marketing its outsourcing programs or that it
will be able to obtain the funds necessary to finance such programs.
The Company anticipates that cash flow from profitable operations and its cash
and investments on hand will be sufficient to provide funding for its existing
needs during the next twelve months.
Factors Affecting Forward-Looking Information
- ---------------------------------------------
The Private Securities Litigation Reform Act of 1995 provides a "safe harbor"
from liability for forward-looking statements. Certain information included in
this Form 10-Q and other materials filed or to be filed by the Company with the
Securities and Exchange Commission (as well as information included in oral
statements or other written statements made or to be made by or on behalf of
the Company) are forward-looking, such as statements relating to operational
and financing plans, competition, the effects of discontinued operations,
demand for the Company's products and services, and the anticipated outcome of
contingent claims against the Company. Such forward-looking statements involve
important risks and uncertainties, many of which will be beyond the control of
the Company. These risks and uncertainties could significantly affect
anticipated results in the future, both short-term and long-term, and
accordingly, such results may differ from those expressed in forward-looking
statements made by or on behalf of the Company. These risks and uncertainties
include, but are not limited to, those relating to the ability of the Company
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to develop and market profitable outsourcing programs, obtain additional
financing, to achieve profitability in its Blood Management Programs, to retain
existing customers, to improve the profitability of the Company's other
operations, to expand its operations, to comply with the covenants under its
bank line of credit and retain existing customers and obtain new customers.
Each of these risks and uncertainties as well as others are discussed in
greater detail in the preceding paragraphs of this Management's Discussion and
Analysis of Financial Condition and Results of Operations and in the Company's
Annual Report on Form 10-K for the year ended December 31, 1997.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
See disclosure in Form 10-K for the year ended December 31, 1997.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits
3.1 Bylaws of the Registrant, as amended
27 Financial Data Schedule for the Quarter Ending March 31,
1998
27.2 Restated Financial Data Schedule for Year Ended December
31, 1995 and quarters ended June 30, 1996 and September
30, 1996
b. The Company did not file any reports on Form 8-K during the
three months ended March 31, 1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date May 12, 1998 HEMACARE CORPORATION
------------------- (Registrant)
/s/ Sharon C. Kaiser
--------------------------
Sharon C. Kaiser, Sr. Vice
President, Finance and
Chief Financial Officer
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Method of Filing
-----------------------------
<S> <C> <C>
3.1 Bylaws of the Registrant, as amended Filed herewith electronically
27 Financial Data Schedule for the quarter
ended March 31, 1998 Filed herewith electronically
27.2 Restated Financial Data Schedule for
year ended December 31, 1995 and
quarters ended June 30, 1996 and
September 30, 1996 Filed herewith electronically
</TABLE>
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EXHIBIT 3.1
Adopted by Shareholders, 7/22/86
B Y L A W S
O F
HEMACARE CORPORATION
_________________________________
A CALIFORNIA CORPORATION
ARTICLE I.
OFFICES
Section 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office
of the corporation shall be located at such place as the board of directors
shall from time to time determine.
Section 2. OTHER OFFICES. Other offices may at any time be established
by the board of directors or the chief executive officer at any place or
places where the corporation is qualified to do business.
ARTICLE II.
MEETING OF SHAREHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of shareholders shall be
held at the principal executive office of the corporation or at any other
place within or without the State of California which may be designated either
by the board of directors or by the shareholders in accordance with these
bylaws.
Section 2. ANNUAL MEETINGS. The annual meetings of shareholders shall
be held on the 20th day of May, of each year, at 10:00 o'clock from time to
time by the board of directors or by the shareholders in accordance with these
bylaws. If the date set forth in these bylaws falls upon a legal holiday,
then such annual meeting of shareholders shall be held at the same time and
place on the next day thereafter ensuing which is not a legal holiday. At
such annual meetings, directors shall be elected, and any other business may
be transacted which is within the powers of the shareholders.
<PAGE> 14
Section 3. SPECIAL MEETINGS. Special meetings of the shareholders, for
the purpose of taking any action which is within the powers of the shareholders,
may be called at any time by the chairman of the board or the president or by
the board of directors, or by the holders of shares entitled to case not less
than ten percent of the votes at the meeting. Upon request in writing that a
special meeting of shareholders be called for any proper purpose, directed to
the chairman of the board, president, vice president or secretary by any
person (other than the board) entitled to call a special meeting of
shareholders, the officer forthwith shall cause notice to be given to the
shareholders entitled to vote that a meeting will be held at a time requested
by the person or persons calling the meeting, not less than thirty-five nor
more than sixty days after receipt of the request.
Section 4. NOTICE OF MEETINGS OF SHAREHOLDERS. Written notice of each
meeting of shareholders, whether annual or special, shall be given to each
shareholder entitled to vote thereat, either personally or by mail or other
means of written communication, charges prepaid, addressed to such shareholder
at the address of such shareholder appearing on the books of the corporation
or given by such shareholder to the corporation for the purpose of notice. If
any notice addressed to the shareholder at the address of such shareholder
appearing on the books of the corporation is returned to the corporation by
the United States Postal Service marked to indicate that the United States
Postal Service is unable to deliver the notice to the shareholder at such
address, all future notices shall be deemed to have been duly given without
further mailing if the same shall be available for the shareholder upon
written demand of the shareholder at the principal executive office of the
corporation for a period of one year from the date of the giving of the notice
to all other shareholders. If no address appears on the books of the
corporation or is given by the shareholder to the corporation for the purpose
of notice, notice shall be deemed to have been given to such shareholder if
sent by mail or by other means of written communication addressed to the place
where the principal executive office of the corporation is located, or if
published at least once in a newspaper of general circulation in the county in
which the executive office is located.
All such notices shall be given to each shareholder entitled thereto not
less than ten days nor more than sixty days before the meeting. Any such
notice shall be deemed to have been given at the time when delivered
personally or deposited in the mail or sent by other means of written
communication. An affidavit of mailing of any such notice in accordance with
the foregoing provisions, executed by the secretary, assistant secretary or
any transfer agent of the
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<PAGE> 15
corporation shall be prima facie evidence of the giving of the notice.
All such notices shall state the place, date and hour of such meeting.
In the case of a special meeting such notice shall also state the general
nature of the business to be transacted at such meeting, and no other business
may be transacted thereat. In the case of an annual meeting, such notice
shall also state those matters which the board of directors at the time of the
mailing of the notice intends to present for action by the shareholders. Any
proper matter may be presented at an annual meeting of shareholders though not
stated in the notice, provided that unless the general nature of a proposal to
be approved by the shareholders relating to the following matters is stated in
the notice or a written waiver of notice, any such shareholder approval will
require unanimous approval of all shareholders entitled to vote:
(a) a proposal to approve a contract or other transaction between the
corporation and one or more of its directors or any corporation, firm or
association in which one or more of its directors has a material financial
interest or is also a director;
(b) A proposal to amend the articles of incorporation;
(c) A proposal to approve the principal terms of a reorganization as
defined in Section 181 of the General Corporation Law;
(d) A proposal to wind up and dissolve the corporation;
(e) If the corporation has preferred shares outstanding and the
corporation is in the process of winding up, a proposal to adopt a plan of
distribution of shares, obligations or securities of any other corporation or
assets other than money which is not in accordance with the liquidation rights
of the preferred shares.
The notice of any meeting at which directors are to be elected shall
include the names of nominees intended at the time of the notice to be
presented by management for election.
Section 5. QUORUM. The presence in person or by proxy of the holders of
a majority of the shares entitled to vote at any meeting shall constitute a
quorum for the transaction of business. The shareholders present at a duly
called or held meeting at which a quorum is present may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum, if any action
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taken (other than adjournment) is approved by at least a majority of the
shares required to constitute a quorum.
Section 6. ADJOURNED MEETINGS AND NOTICE THEREOF. Any shareholders'
meeting, annual or special, whether or not a quorum is present, may be
adjourned from time to time by vote of a majority of the shares the holders of
which are either present in person or by proxy thereat, but in the absence of
a quorum, no other business may be transacted at any such meeting, except as
provided in Section 4 of this Article II.
When any shareholders' meeting, either annual or special, is adjourned
for forty-five days or more, or if after the adjournment a new record date is
fixed for the adjourned meeting, notice of the adjourned meeting shall be
given to each shareholder of record entitled to vote at the adjourned meeting
as in the case of an original meeting. Except as set forth in this Section 6
of Article II, it shall not be necessary to give any notice of an adjourned
meeting or of the business to be transacted at an adjourned meeting, other
than by announcement of the time and place thereof at the meeting at which
such adjournment is taken.
Section 7. VOTING. At all meetings of shareholders, every shareholder
entitled to vote shall have the right to vote in person or by proxy the number
of shares standing in the name of such shareholder on the stock records of the
corporation on the record date for such meeting. Shares held by an
administrator, executor, guardian, conservator, custodian, trustee, receiver,
pledgee, minor, corporation or fiduciary or held by this corporation or a
subsidiary of this corporation in a fiduciary capacity or by two or more
persons shall be voted in the manner set forth in Sections 702, 703, and 704
of the General Corporation Law. Shares of this corporation owned by this
corporation or a subsidiary (except shares held in a fiduciary capacity) shall
not be entitled to vote. Unless a record date for voting purposes is fixed
pursuant to Section 1 of Article V of these bylaws, then only persons in whose
names shares entitled to vote stand on the stock records of the corporation at
the close of business on the business day next preceding the day on which
notice is given or, if notice is waived, at the close of business on the
business day next preceding the day on which the meeting is held, shall be
entitled to vote at such meeting, and such day shall be the record date for
such meeting. Votes at a meeting may be given by viva voce or by ballot;
provided, however, that all elections for directors must be by ballot upon
demand made by a shareholder at any election and before the voting begins. If
a quorum is present at the beginning of the meeting, except with respect to
the election of directors (and subject to the provisions of Section 5 of this
Article II should shareholders withdraw thereafter) the affirmative vote of
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the majority of the shares represented at the meeting and entitled to vote on
any matter shall be the act of the shareholders and shall decide any question
properly brought before the meeting, unless the vote of a greater number or
voting by classes is required by the General Corporation Law or the Articles
of Incorporation, in which case the vote so required shall govern and control
the decision of such question. Subject to the provisions of the next
sentence, at all elections of directors of the corporation, each shareholder
shall be entitled to cumulate his votes and give one candidate a number of
votes equal to the number of directors to be elected multiplied by the number
of votes to which his shares are entitled, or to distribute his votes on the
same principle among as many candidates as he shall think fit. No shareholder
shall be entitled to cumulate his votes unless the name of the candidate or
candidates for whom such votes would be cast has been placed in nomination
prior to the voting and any shareholder has given notice at the meeting prior
to the voting, of such shareholder's intention to cumulate his votes. The
candidates receiving the highest number of votes up to the number of directors
to be elected shall be elected.
Section 8. WAIVER OF NOTICE AND CONSENT OF ABSENTEES. The proceedings
and transactions of any meeting of shareholders, either annual or special,
however called and noticed and wherever held, shall be as valid as though had
at a meeting duly held after regular call and notice, if a quorum is present
either in person or by proxy, and if, either before or after the meeting, each
of the persons entitled to vote, not present in person or by proxy, signs a
written waiver of notice or a consent to the holding of such meeting, or an
approval of the minutes thereof. Attendance of a person at a meeting shall
constitute a waiver of noticer of such meeting, except when the person
objects, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened and except that
attendance at a meeting is not a waiver of any right to object to the
consideration of matters required by law or these bylaws to be included in the
notice but which was not so included, if such objection is expressly made at
the meeting, provided however, that any person making such objection at the
beginning of the meeting or to the consideration of matters required to be but
not included in the notice may orally withdraw such objection at the meeting
or thereafter waiver such objection by signing a written waiver thereof or a
consent to the holding of the meeting or the consideration of the matter or an
approval of the minutes of the meeting. Neither the business to be transacted
at nor the purpose of any annual or special meeting of shareholders need be
specified in any written waiver of notice except that the general nature of
the proposals specified in subsections (a)
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through (e) of Section 4 of this
Article II, shall be so stated. All such waivers, consents or approvals shall
be filed with the corporate records or made a part of the minutes of the
meeting.
Section 9. ACTION WITHOUT A MEETING. Directors may be elected without a
meeting by a consent in writing, setting forth the action so taken, signed by
all of the persons who would be entitled to vote for the election of
directors, provided that, without notice except as hereinafter set forth, a
director may be elected at any time to fill a vacancy not filled by the
directors by the written consent of persons holding a majority of the
outstanding shares entitled to vote for the election of directors.
Any other action which, under any provision of the General Corporation
Law may be taken at any annual or special meeting of the shareholders, may be
taken without a special meeting, and without notice except as hereinafter set
forth, if a consent in writing, setting forth the action so taken, is signed
by the holders of outstanding shares having not less than the minimum number
of votes that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted. Unless
the consents of all shareholders entitled to vote have been solicited in
writing,
(a) Notice of any proposed shareholder approval of, (i) a contract or
other transaction between the corporation and one or more of its directors or
any corporation, firm or association in which one or more of its directors has
a material financial interest or is also a director, (ii) indemnification of
an agent of the corporation as authorized by Section 16, of Article III, of
these bylaws (iii) a reorganization of the corporation as defined in Section
181 of the General Corporation Law, or (iv) the distribution of shares,
obligations or securities of any other corporation or assets other than money
which is not in accordance with the liquidation rights of preferred shares if
the corporation is in the process of winding up, without a meeting by less
than unanimous written consent, shall be given at least ten days before the
consummation of the action authorized by such approval; and
(b) Prompt notice shall be given of the taking of any other corporate
action approved by shareholders without a meeting by less than unanimous
written consent, to those shareholders entitled to vote who have not consented
in writing. Such notices shall
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be given in the manner and shall be deemed to
have been given as provided in Section 4 of Article II of these bylaws.
Unless, as provided in Section 1 of Article V of these bylaws, the board
of directors has fixed a record date for the determination of shareholders
entitled to notice of and to give such written consent, the record date for
such determination shall be the day on which the first written consent is
given. All such written consents shall be filed with the secretary of the
corporation.
Any shareholder giving a written consent, or the shareholder's
proxyholders, or a transferee of the shares or a personal representative of
the shareholder or their respective proxyholders, may revoke the consent by a
writing received by the corporation prior to the time that written consents of
the number of shares required to authorize the proposed action have been filed
with the secretary of the corporation, but may not do so thereafter. Such
revocation is effective upon its receipt by the secretary of the corporation.
Section 10. PROXIES. Every person entitled to vote or execute consents
shall have the right to do so either in person or by an agent or agents
authorized by written proxy executed by such person or the duly authorized
agent of such person and filed with the secretary of the corporation, or the
persons appointed as inspectors of election or such other person as may be
designated by the board of directors of the chief executive officer to receive
the proxies; provided, that no such proxy shall be valid after the expiration
of eleven months from the date of its execution, unless the shareholder
executing it specifies therein the length of time for which such proxy is to
continue in force. Every proxy duly executed continues in full force and
effect until revoked by the person executing it prior to the vote pursuant
thereto. Except as otherwise provided by law, such revocation may be effected
by attendance at the meeting and voting in person by the person executing the
proxy or by a writing stating that the proxy is revoked or by a proxy bearing
a later date executed by the person executing the proxy and filed with the
secretary of the corporation or the persons appointed as inspectors of
election or such other persons as may be designated by the board of directors
or the chief executive officer to receive proxies.
Section 11. INSPECTORS OF ELECTION. In advance of any meeting of
shareholders, the board of directors may appoint any persons as inspectors of
election to act at such meeting or any adjournment thereof. If inspectors of
election are not so appointed, or if any persons so appointed fail to appear
or refuse to act, the chairman of any such meeting may, and on the request of
any shareholder or his proxy shall, make such
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appointment at the meeting. The
number of inspectors shall be either one or three. If appointed at a meeting
on the request of one or more shareholders or proxies, the majority of shares
represented in person or by proxy shall determine whether one or three
inspectors are to be appointed.
The inspectors of election shall determine the number of shares
outstanding and the voting power of each, the shares represented at the
meeting, the existence of a quorum and the authenticity, validity and effect
of proxies, receive votes, ballots or consents, hear and determine all
challenges and questions in any way arising in connection with the right to
vote, count and tabulate all votes or consents, determine when the polls shall
close, determine the result and do such acts as may be proper to conduct the
election or vote with fairness to all shareholders. In the determination of
the validity and effect of proxies the dates contained on the forms of proxy
shall presumptively determine the order of execution of the proxies,
regardless of the postmark dates on the envelopes in which they are mailed.
The inspectors of election shall perform their duties impartially, in
good faith, to the best of their ability and as expeditiously as is
practical. If there are three inspectors of election, the decision, act or
certificate of a majority is effective in all respects as the decision, act or
certificate of all. Any report or certificate made by the inspectors of
election is prima facie evidence of the facts stated therein.
ARTICLE III
DIRECTORS
Section 1. POWERS. Subject to the General Corporation Law and any
limitations in the articles of incorporation relating to action requiring
shareholder approval, and subject to the duties of directors as prescribed by
the bylaws, the business and affairs of the corporation shall be managed and
all corporate powers shall be exercised by or under the direction of the board
of directors.
Section 2. NUMBER AND QUALIFICATION OF DIRECTORS. The authorized number
of directors shall be seven (7)<F1>. After the issuance of shares, this
number may be changed only be an amendment to the articles of incorporation or
the bylaws approved by the affirmative vote or written consent of a majority
<F1>Adopted by the Shareholders 5-20-88
Adopted by the Shareholders 8-29-86
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of the outstanding shares entitled to vote. If the number of directors is or
becomes five or more, an amendment of the articles of incorporation or the
bylaws reducing the authorized number of directors to less than five cannot be
adopted if the votes cast against its adoption at a meeting or the shares not
consenting in the case of action by written consent are equal to more than
16-2/3 percent of the outstanding shares entitled to vote. Directors need not
be residents of the State of California nor shareholders of the corporation.
Section 3. ELECTION AND TERM OF OFFICE. The directors shall be elected
at each annual meeting of shareholders, but if any such annual meeting is not
held or the directors are not elected at any annual meeting, the directors may
be elected at any special meeting of shareholders held for that purpose, or at
the next annual meeting of shareholders held thereafter. Each director shall
hold office at the pleasure of the shareholders until his successor has been
elected and qualified or until his earlier resignation or removal of his
office has been declared vacant in the manner provided by these bylaws.
Section 4. RESIGNATION AND REMOVAL OF DIRECTORS. Any director may
resign effective upon giving written notice to the chairman of the board, the
president, the secretary or the board of directors of the corporation, unless
the notice specifies a later time for the effectiveness of such resignation,
in which case, such resignation shall be effective at the time specified.
Unless such resignation specifies otherwise, its acceptance by the corporation
shall not be necessary to make it effective. The board of directors may
declare vacant the office of a director who has been declared of unsound mind
by an order of the court or convicted of a felony. Any or all of the
directors may be removed without cause if such removal is approved by the
affirmative vote of a majority of the outstanding shares entitled to vote
provided that no director may be removed (unless the entire board is removed)
when the votes cast against removal (or, if such action is taken by written
consent, the shares held by persons not consenting in writing to such removal)
would be sufficient to elect such director if voted cumulatively at an
election at which the same total number of votes were cast (or, if such action
is taken by written consent, all shares entitled to vote were voted) and the
entire number of directors authorized at the time of the director's most
recent election were then being elected. No reduction of the authorized
number of directors shall have the effect of removing any director before his
term of office expires.
Section 5. VACANCIES. Vacancies on the board of directors (except
vacancies created by the removal of a
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director) may be filled by a majority of
the directors then in office, whether or not less than a quorum, or by a sole
remaining director, and each director elected in this manner shall hold office
until the next annual meeting of shareholders and until a successor has been
elected and qualified or until his earlier resignation or removal or his
office has been declared vacant in the manner provided in these bylaws. A
vacancy or vacancies on the board of directors shall exist on the death,
resignation or removal of any director, or if the board declares vacant the
office of a director if he is declared of unsound mind by an order of court or
is convicted of a felony, or if the authorized number of directors is
increased, or if the shareholders fail to elect the full authorized number of
directors to be voted for at any shareholders meeting at which an election of
directors is held. The shareholders may elect a director at any time to fill
any vacancy not filled by the directors or which occurs by reason of the
removal of a director. Any such election by written consent of shareholders
shall require the consent of a majority of the outstanding shares entitled to
vote. If the resignation of a director states that it is to be effective at a
future time, a successor may be elected to take office when the resignation
becomes effective.
Section 6. PLACE OF MEETINGS. Regular and special meetings of the board
of directors shall be held at any place within or without the State of
California which has been designated in the notice or written waiver of notice
of the meeting, or, if not stated in the notice or waiver of notice or there
is no notice, designated by resolution of the board of directors, or, either
before or after the meeting, consented to in writing by all members of the
board who were not present at the meeting. If the place of a regular or
special meeting is not designated in the notice or waiver of notice or fixed
by a resolution of the board or consented to in writing by all members of the
board not present at the meeting, it shall be held at the corporation's
principal executive offices.
Section 7. REGULAR MEETINGS. Immediately following each annual
shareholders' meeting, the board of directors shall hold a regular meeting to
elect officers and transact other business. Such meeting shall be held at the
same place as the annual meeting or such other place as shall be fixed by the
board of directors. Other regular meetings of the board shall be held at such
times and places as are fixed by the board. Call and notice of regular
meetings of the board of directors shall not be required and is hereby
dispensed with.
Section 8. SPECIAL MEETINGS. Special meetings of the board of directors
for any purpose or purposes may be called at any time by the chairman of the
board, the president, any
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vice president, the secretary, any assistant
secretary or any two directors. Notice of the time and place of special
meeting shall be delivered personally or by telephone or telegraph or sent to
the director by mail. In case notice is given by mail or telegram, it shall
be sent, charges prepaid, addressed to the director at his address appearing
on the corporate records, or if it is not on these records or is not readily
ascertainable, at the place where the meetings of the directors are regularly
held. If notice is delivered personally or given by telephone or telegraph,
it shall be given or delivered to the telegraph office at least 48 hours
before the meeting. If notice is mailed, it shall be deposited in the United
States mail at least four days before the meeting. Such mailing, telegraphing
or delivery, personally or by telephone, as provided in this Section, shall be
due, legal and personal notice to such director.
Section 9. QUORUM. Three directors<F2> shall constitute a quorum of the
board for the transaction of business, except to adjourn a meeting under
Section 11. Every act or decision done or made by a majority of the directors
present at a meeting duly held at which a quorum is present is the act of the
board of directors, unless the vote of a greater number or the same number
after disqualifying one or more directors from voting, is required by law, the
articles of incorporation or these bylaws. A meeting at which a quorum is
initially present may continue to transact business notwithstanding the
withdrawal of directors, provided that any action taken is approved by at
least a majority of the required quorum for such meeting.
Section 10. WAIVER OF NOTICE OR CONSENT. The transactions of any
meeting of the board of directors, however called and noticed or wherever
held, shall be as valid as though had at a meeting duly held after regular
call and notice, if a quorum is present and if, either before or after the
meeting, each of the directors not present or who, though present, has prior
to the meeting or at its commencement, protested the lack of proper notice to
him, signs a written waiver of notice, or a consent to holding the meeting, or
an approval of the minutes of the meeting. All such waivers, consents and
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting. A notice or waiver of notice need not specify the
purpose of any regular or special meeting of the board of directors. Notice
of a meeting need not be given to any director who signs a waiver of notice,
whether before or after the meeting, or who attends the meeting without
protesting, prior to or at its commencement, the lack of notice to such
director.
<F2>Approved by the Board of Directors 11-26-97
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Section 11. ADJOURNMENT. A majority of the directors present, whether
or not a quorum is present, may adjourn any meeting to another time and
place. If the meeting is adjourned for more than 24 hours, notice of the
adjournment to another time or place shall be given prior to the time of the
adjourned meeting to the directors who were not present at the time of the
adjournment.
Section 12. MEETINGS BY CONFERENCE TELEPHONE. Members of the board of
directors may participate in a meeting through use of conference telephone or
similar communications equipment, so long as all members participating in such
meeting can hear one another. Participation by directors in a meeting in the
manner provided in this Section constitutes presence in person at such
meeting.
Section 13. ACTION WITHOUT A MEETING. Any action required or permitted
to be taken by the board of directors may be taken without a meeting, if all
members of the board shall individually or collectively consent in writing to
such action. Such written consent or consents shall be filed with the minutes
of the proceedings of the board. Such action by written consent shall have
the same force and effect as a unanimous vote of such directors.
Section 14. FEES AND COMPENSATION. Directors and members of committees
shall receive neither compensation for their services as directors or members
of the committees or reimbursement for their expenses incurred as directors or
members of committees unless these payments are fixed by resolution of the
board. Directors and members of committees may receive compensation, and
reimbursement for their expenses incurred as officers, agents or employees of
or for other services performed for the corporation as approved by the chief
executive officer without authorization, approval or ratification by the
board.
Section 15. COMMITTEES. The board of directors may, at its discretion,
by resolution adopted by a majority of the authorized number of directors,
designate one or more committees, each of which shall be composed of two or
more directors, to serve at the pleasure of the board. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent member at any meeting of the committee. The board may
delegate to any such committee, to the extent provided in such resolution, any
of the board's powers and authority in the management of the corporation's
business and affairs except with respect to:
(a) the approval of any action for which the General Corporation Law or
the articles of incorporation also requires approval by the shareholders;
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(b) the filling of vacancies on the board of directors or any committee;
(c) the fixing of compensation of directors for serving on the board
or on any committee;
(d) the amendment or repeal of bylaws or the adoption of new bylaws;
(e) the amendment or repeal of any resolution of the board which by its
express terms is not so amendable or repealable;
(f) a distribution to the shareholders of the corporation, except at a
rate or in a periodic amount or within a price range determined by the board;
(g) the authorization of the issuance of shares; and
(h) the appointment of other committees of the board of the members
thereof.
The board may prescribe appropriate rules, not inconsistent with these
bylaws, by which proceedings of any such committee shall be conducted. The
provisions of these bylaws relating to the calling of meetings of the board,
notice of meetings of the board and waiver of such notice, adjournments of
meetings of the board, written consents to board meetings and approval of
minutes, action by the board by consent in writing without a meeting, the
place of holding such meetings, meetings by conference telephone or similar
communications equipment, the quorum for such meetings, the vote required at
such meetings and the withdrawal of directors after commencement of a meeting
shall apply to committees of the board and action by such committees. In
addition, any member of the committee designated by the board as the chairman
or as secretary of the committee or any two members of a committee may call
meetings of the committee. Regular meetings of any committee may be held
without notice if the time and place of such meetings are fixed by the board
of directors or the committee.
Section 16. INDEMNIFICATION OF AGENTS.
(a) For the purposes of this section, "agent" means any person who is
or was a director, officer, employee or other agent of this corporation, or is
or was serving at the request of this corporation as a director, officer,
employee or agent of another foreign or domestic corporation, partnership,
joint venture, trust or other enterprise, or was a director, officer, employee
or agent of a foreign or domestic
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corporation which was a predecessor
corporation of this corporation or of another enterprise at the request of
such predecessor corporation; "proceeding" means any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative; and "expenses" includes, without limitation, attorneys' fees
and any expenses of establishing a right to indemnification under subdivision
(d) or subdivision (e) (3) of this Section.
(b) This corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any proceeding (other than an action by
or in the right of this corporation) by reason of the fact that such person is
or was an agent of this corporation, against expenses, judgements, fines,
settlements and other amounts actually and reasonably incurred in connection
with such proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in the best interests of this corporation
and, in the case of a criminal proceeding, had no reasonable cause to believe
the conduct of such person was unlawful. The termination of any proceeding by
judgement, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonable believed to
be in the best interests of this corporation or that the person had best
interests of this corporation or that the person had reasonable cause to
believe that the person's conduct was unlawful.
(c) This corporation shall indemnify any person who 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 this corporation to procure a judgment
in its favor by reason of the fact that such person is or was an agent of this
corporation, against expenses actually and reasonably incurred by such person
in connection with the defense or settlement of such action if such person
acted in good faith, in a manner such person believed to be in the best
interests of this corporation and with such care, including reasonable
inquiry, as an ordinarily prudent person in a like position would use under
similar circumstances. No indemnification shall be made under this
subdivision (c):
(1) In respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to this corporation in the
performance of such person's duty to this corporation, unless and only to the
extent that the court in which such action was brought shall determine upon
application that, in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for the expenses which such court
shall determine;
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(2) Of amounts paid in settling or otherwise disposing of a
threatened or pending action, with or without court approval; or
(3) Of expenses incurred in defending a threatened or pending
action which is settled or otherwise disposed of without court approval.
(d) To the extent that an agent of this corporation has been
successful on the merits in defense of any proceeding referred to in
subdivision (b) or (c) or in defense of any claim, issue or matter therein,
the agent shall be indemnified against expenses actually and reasonably
incurred by the agent in connection therewith.
(e) Except as provided in subdivision (d), any indemnification under
this Section shall be made by this corporation only if authorized in the
specific case, upon a determination that indemnification of the agent is
proper in the circumstances because the agent has met the applicable standard
of conduct set forth in subdivision (b) or (c), by:
(1) A majority vote of a quorum consisting of directors who are
not parties to such proceeding;
(2) Approval or ratification by the affirmative vote of a
majority of the shares of this corporation entitled to vote represented at a
duly held meeting at which a quorum is present or by the written consent of
the holders of a majority of the outstanding shares entitled to vote. For
such purpose, the shares owned by the person to be indemnified shall not be
considered outstanding or entitled to vote thereon; or
(3) The court in which such proceeding is or was pending, upon
application made by this corporation or the agent or the attorney or other
person rendering services in connection with the defense, whether or not such
application by the agent, attorney or other person is opposed by this
corporation.
(f) Expenses incurred in defending any proceeding may be advanced by
this corporation prior to the final disposition of such proceeding upon
receipt of an undertaking by or on behalf of the agent to repay such amount
unless it shall be determined ultimately that the agent is entitled to be
indemnified as authorized in this Section.
(g) Nothing contained in this Section shall affect any right to
indemnification to which persons other than directors and officers of this
corporation or any subsidiary hereof may be entitled by contract or otherwise.
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(h) No indemnification or advance shall be made under this Section,
except as provided in subdivision (d) or subdivision (e)(3), in any
circumstance where it appears:
(1) That it would be inconsistent with a provision of the
articles of incorporation, a resolution of the shareholders or an agreement in
effect at the time of the accrual of the alleged cause of action asserted in
the proceeding in which the expenses were incurred or other amounts were paid,
which prohibits or otherwise limits indemnification; or
(2) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
(i) Upon and in the event of a determination by the board of
directors of this corporation to purchase such insurance, this corporation
shall purchase and maintain insurance on behalf of any agent of the
corporation against any liability asserted against or incurred by the agent in
such capacity or arising out of the agent's status as such whether or not this
corporation would have the power to indemnify the agent against such liability
under the provisions of this Section.
Article IV
OFFICERS
Section 1. OFFICERS. The officers of the corporation shall be a
chairman of the board or a president and CEO<F3>, or both, a secretary and a
chief financial officer. The corporation may also have, at the discretion of
the board of directors, one or more vice presidents, one or more assistant
secretaries, one or more assistant treasurers and such other officers as may
be appointed in accordance with the provisions of Section 3 of this Article
IV. Any two or more offices may be held by the same person.
Section 2. ELECTIONS. The officers of the corporation, except such
officers as may be appointed in accordance with the provisions of Section 3 or
Section 5 of this Article IV, shall be chosen annually by the board of
directors, and each such officer shall serve at the pleasure of the board of
directors until the regular meeting of the board of directors following the
annual meeting of shareholders and until his successor is elected and
qualified or until his earlier resignation or removal.
<F3> Adopted by Board, 8-29-86
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Section 3. OTHER OFFICERS. The board of directors may appoint, and may
empower the chairman of the board or the president or both of them to appoint,
such other officers as the business of the corporation may require, each of
whom shall hold office for such period, have such authority and perform such
duties as are provided in the bylaws or as the board of directors may from
time to time determine.
Section 4. REMOVAL AND RESIGNATION. Any officer may be removed with or
without cause either by the board of directors or, except for an officer
chosen by the board, by any officer upon whom the power of removal may be
conferred by the board (subject in each case, to the rights, if any, of an
officer under any contract of employment). Any officer may resign at any time
upon written notice to the corporation (without prejudice however, to the
rights, if any, of the corporation under any contract to which the officer is
a party). Any such resignation shall take effect upon receipt of such notice
or at any later time specified therein. If the resignation is effective at a
future time, a successor may be elected to take office when the resignation
becomes effective. Unless a resignation specifies otherwise, its acceptance
by the corporation shall not be necessary to make it effective.
Section 5. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in a
manner prescribed in the bylaws for regular appointments to the office.
Section 6. CHAIRMAN OF THE BOARD. The board of directors may, in its
discretion, elect a chairman of the board, who, unless otherwise determined by
the board of directors, shall preside at all meetings of the board of
directors at which he is present and shall exercise and perform any other
powers and duties assigned to him by the board or prescribed by the bylaws.
If the office of president is vacant, the chairman of the board shall be the
general manager and chief executive officer of the corporation and shall
exercise the duties of the president as set forth in Section 7.
Section 7. PRESIDENT AND CHIEF EXECUTIVE OFFICER<F4>. Subject to any
supervisory powers, if any, that may be given by the board of directors or the
bylaws to the chairman of the board, if there be such an officer, the
president and CEO<F4> shall be the corporation's general manager and chief
executive officer and shall, subject to the control of the board of directors,
have general supervision, direction and control of the business, affairs and
officers of the corporation. Unless
<F4>Adopted by Board, 8-29-86
17
<PAGE> 30
otherwise determined by the board of
directors, he shall preside as chairman at all meeting of the shareholders,
and in the absence of the chairman of the board, of if there be none, at all
meetings of the board of directors. He shall have the general powers and
duties of management usually vested in the office of president of a
corporation; shall have any other powers and duties that are prescribed by the
board of directors or the bylaws; and shall be primarily responsible for
carrying out all orders and resolutions of the board of directors.
Section 8. VICE PRESIDENTS. In the absence or disability of the chief
executive officer, the vice presidents in order of their rank as fixed by the
board of directors, or if not ranked, the vice president designated by the
board of directors, of if there has been no such designation, the vice
president designated by the chief executive officer, shall perform all the
duties of the chief executive officer, and when so acting, shall have all the
powers of, and be subject to all the restrictions on, the chief executive
officer. Each vice president shall have any of the powers and perform any
other duties that from time to time may be prescribed for him by the board of
directors or the bylaws or the chief executive officer.
Section 9. SECRETARY. The secretary shall keep or cause to be kept a
book of minutes of all meeting and actions by written consent of all
directors, shareholders and committees of the board of directors. The minutes
of each meeting shall state the time and place that it was held and such other
information as shall be necessary to determine whether the meeting was held in
accordance with law and these bylaws and the actions taken thereat. The
secretary shall keep or cause to be kept at the corporation's principal
executive office, or at the office of its transfer agent or registrar, a
record of the shareholders of the corporation, giving the names and addresses
of all shareholders and the number and class of shares held by each. The
secretary shall give, or cause to be given, notice of all meeting of
shareholders, directors and committees required to be given under these bylaws
or by law, shall keep or cause the keeping of the corporate seal in safe
custody and shall have any other powers and perform any other duties that are
prescribed by the board of directors or the bylaws or the chief executive
officer. If the secretary refuses or fails to give notice of any meeting
lawfully called, any other officer of the corporation may give notice of such
meeting. The assistant secretary, or if there be more than one, any assistant
secretary, may perform any or all of the duties and exercise any or all of the
powers of the secretary unless prohibited from doing so by the board of
directors, the chief executive officer or the secretary, and shall have such
other powers and perform any other duties as
18
<PAGE> 31
are prescribed for him by the
board of directors or the chief executive officer.
Section 10. CHIEF FINANCIAL OFFICER. The chief financial officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
books and records of account. The chief financial officer shall cause all
money and other valuables in the name and to the credit of the corporation to
be deposited at the depositories designated by the board of directors or any
person authorized by the board of directors to designate such depositories.
He shall render to the chief executive officer and board of directors, when
either of them request it, an account of all his transactions as chief
financial officer and of the financial condition of the corporation; and shall
have any other powers and perform any other duties that are prescribed by the
board of directors or the bylaws or the chief executive officer. The
assistant treasurer, may perform any or all of the duties and exercise any or
all of the powers of the chief financial officer unless prohibited from doing
so by the board of directors, the chief executive officer or the chief
financial officer, and shall have such any other powers and perform any other
duties that are prescribed by the board of directors or the bylaws or the
chief executive officer. The assistant treasurer, or if there by more than
one, any assistant treasurer, may perform any or all of the duties and
exercise any or all of the powers of the chief financial officer unless
prohibited from doing so by the board of directors, the chief executive
officer or the chief financial officer, and shall have such other powers and
perform any other duties as are prescribed for him by the board of directors,
the chief executive officer or the chief financial officer.
Article V
MISCELLANEOUS
Section 1. RECORD DATE. The board of directors may fix a time in the
future as a record date for the determination of the shareholders entitled to
notice of and to vote at any meeting of shareholders or entitled to give
consent to corporate action in writing without a meeting, to receive any
report, to receive payment of any dividend or other distribution, or allotment
of any rights, or to exercise rights in respect to any change, conversion, or
exchange of shares or any other lawful action. The record date so fixed shall
be not more than sixty days nor less than ten days prior to the date of such
meeting, nor more than sixty days prior to any other action for the purposes
of which it is fixed. When a record date is so fixed, only shareholders of
record on that date are entitled to notice of and to vote at any such meeting
to give consent without a meeting, to receive any report, to
19
<PAGE> 32
receive a
dividend, distribution, or allotment of rights, or to exercise the rights, as
the case may be, notwithstanding any transfer of any shares on the books of
the corporation after the record date, except as otherwise provided in the
articles of incorporation or bylaws.
Section 2. INSPECTION OF CORPORATE RECORDS. The books of account,
record of shareholders, and minutes of proceedings of the shareholders and the
board and committees of the board of this corporation shall be open to
inspection upon the written demand on the corporation of any shareholder or
holder of a voting trust certificate at any time during usual business hours,
for a purpose reasonably related to such holder's interests as a shareholder
or as the holder of such voting trust certificate. Such inspection by a
shareholder or holder of a voting trust certificate may be made in person or
by agent or attorney, and the right of inspection includes the right to copy
and make extracts.
A shareholder or shareholders holding at least five percent in the
aggregate of the outstanding voting shares of the corporation or who hold at
least one percent of such voting shares and have filed a Schedule 14B with the
United States Securities and Exchange Commission relating to the election of
directors of the corporation shall have (in person or by agent or attorney)
the absolute right to inspect and copy the record of shareholders' names and
addresses and shareholdings during usual business hours upon five business
days' prior written demand upon the corporation and to obtain from the
transfer agent for the corporation, upon written demand and upon the tender of
its usual charges, a list of the shareholders' names and addresses, who are
entitled to vote for the election of directors, and their shareholdings, as of
the most recent record date for which it has been compiled or as of a date
specified by the shareholder subsequent to the date of demand. The list shall
be made available on or before the later of five business days after the
demand is received or the date specified therein as the date as of which the
list is to be compiled.
Every director shall have the absolute right at any reasonable time to
inspect and copy all books, records and documents of every kind and to inspect
the physical properties of this corporation and any subsidiary of this
corporation. Such inspection by a director may be made in person or by agent
or attorney and the right of inspection includes the right to copy and make
extracts.
Section 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
payment of money, notes or other evidences of indebtedness, issued in the name
of or payable to the corporation, shall be signed or endorsed by such person
or
20
<PAGE> 33
persons and in such manner as, from time to time, shall be determined by
resolution of the board of directors. The board of directors may authorize
one or more officers of the corporation to designate the person of persons
authorized to sign such documents and the manner in which such documents shall
be signed.
Section 4. ANNUAL AND OTHER REPORTS. The statutory requirement that the
board of directors cause an annual report to be sent to shareholders is hereby
waived.
A shareholder or shareholders holding at least five percent of the
outstanding shares of any class of the corporation may make a written request
to the corporation for an income statement of the corporation for the
three-month, six-month or nine-month period of the current fiscal year ended
more than thirty days prior to the date of the request and a balance sheet of
the corporation as of the end of such period. In addition, if no annual
report for the last fiscal year has been sent to shareholders, a shareholder
or shareholders holding at least five person of the outstanding shares of any
class of the corporation may make a written request to the corporation for an
annual report for the last fiscal year, which annual report shall contain a
balance sheet as of the end of such fiscal year and in income statement and
statement of changes in financial position of such fiscal year, accompanied by
any report thereon of independent accountants or, if there is not such report,
the certificate of an authorized officer of the corporation that such
statements were prepared without audit from the books and records of the
corporation. The statements shall be delivered or mailed to the person making
the request within thirty days thereafter. A copy of such statements shall be
kept on file in the principal executive office of the corporation for twelve
months and they shall be exhibited at all reasonable times to any shareholder
demanding an examination of them or a copy shall be mailed to such
shareholder.
The corporation shall, upon the written request of any shareholder, mail
to the shareholder a copy of the last annual, semiannual or quarterly income
statement which it has prepared and a balance sheet as of the end of the
period.
The quarterly income statements and balance sheets referred to in this
Section shall be accompanied by the report thereon, if any, of any independent
accountants engaged by the corporation or the certificate of an authorized
officer of the corporation that such financial statements were prepared
without audit from the books and records of the corporation.
Unless otherwise determined by the board of directors or the chief
executive officer, the chief financial officer and
21
<PAGE> 34
any assistant treasurer are
each authorized officers of the corporation to execute the certificate that
the annual report and quarterly income statements and balance sheets referred
to in this section were prepared without audit from the books and records of
the corporation.
Any report sent to the shareholders shall be given personally or by mail
or other means of written communication, charges prepaid, addressed to such
shareholder at the address of such shareholder appearing on the books of the
corporation or given by such shareholder to the corporation for the purpose of
notice or set forth in the written request of the shareholder as provided in
this Section. If any report addressed to the shareholder at the address of
such shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the report to the
shareholder at such address, all future reports shall be deemed to have been
duly given without further mailing if the same shall be available for the
shareholder upon written demand of the shareholder at the principal executive
office of the corporation for a period of one year from the date of the giving
of the report to all other shareholders. If no address appears on the books
of the corporation or is given by the shareholder to the corporation for the
purpose of notice or is set forth in the written request of the shareholder as
provided in this Section, such report shall be deemed to have been given to
such shareholder if sent by mail or other means of written communication
addressed to the place where the principal executive office of the corporation
is located, or if published at least once in a newspaper of general
circulation in the county in which the principal executive office is located.
Any such report shall be deemed to have been given at the time when delivered
personally or deposited in the mail or sent by other means of written
communication. An affidavit of mailing of any such report in accordance with
the foregoing provisions, executed by the secretary, assistant secretary or
any transfer agent of the corporation shall be prima facie evidence of the
giving of the report.
Section 5. CONTRACTS, ETC., HOW EXECUTED. The board of directors,
except as the bylaws or articles of incorporation otherwise provide, may
authorize any officer or officers, agent or agents, to enter into any contract
or execute any instrument in the name of and on behalf of the corporation, and
such authority may be general or confined to specific instances.
Section 6. CERTIFICATE FOR SHARES. Every holder of shares in the
corporation shall be entitled to have a certificate or certificates signed in
the name of the
22
<PAGE> 35
corporation by the chairman or vice chairman of the board or
the president or a vice president and by the chief financial officer or an
assistant treasurer or the secretary or any assistant secretary, certifying
the number of shares and the class or series of shares owned by the
shareholder. Any or all of the signatures on the certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the corporation with the same effect as if such
person were such officer, transfer agent or registrar at the date of issue.
Any such certificate shall also contain such legend or other statement as
may be required by Section 418 of the General Corporation Law, the Corporate
Securities Law of 1968, and any agreement between the corporation and the
issuee thereof, and may contain such legend or other statement as may be
required by any other applicable law or regulation or agreement.
Certificates for shares may be issued prior to full payment thereof,
under such restrictions and for such purposes, as the board of directors or
the bylaws may provide; provided, however, that any such certificates so
issued prior to full payment shall state the total amount of the consideration
to be paid therefor and the amount paid thereon.
No new certificate for shares shall be issued in place of any certificate
theretofore issued unless the latter is surrendered and cancelled at the same
time; provided, however, that a new certificate may be issued without the
surrender and cancellation of the old certificate if the certificate
theretofore issued is alleged to have been lost, stolen or destroyed. In case
of any such allegedly lost, stolen or destroyed certificate, the corporation
may require the owner thereof or the legal representative of such owner to
give the corporation a bond (or other adequate security) sufficient to
indemnify it against any claim that may be made against it (including any
expense or liability) on account of the alleged loss, theft or destruction of
any such certificate or the issuance of such new certificate.
Section 7. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. Unless the
board of directors shall otherwise determine, the chairman of the board, the
president, any vice president, the secretary and any assistant secretary of
this corporation are each authorized to vote, represent and exercise on behalf
of this corporation all rights incident to any and all shares of any other
corporation or corporations standing in the name of this corporation. The
23
<PAGE> 36
authority herein granted to such officers to vote or represent on behalf of
this corporation any and all shares held by this corporation in any other
corporation or corporations may be exercised either by such officers in person
or by any person authorized so to do by proxy or power of attorney or other
document duly executed by any such officer.
Section 8. INSPECTION OF BYLAWS. The corporation shall keep in its
principal executive office in California, or if its principal executive office
is not in California, at its principal business office in California, the
original or a copy of the bylaws as amended to date, which shall be open to
inspection by the shareholders at all reasonable times during office hours.
If the corporation has no office in California, it shall upon the written
request of any shareholder, furnish him a copy of the bylaws as amended to
date.
Section 9. SEAL. The corporation shall have a common seal, and shall
have inscribed thereon the name of the corporation, the date of its
incorporation, and the words "INCORPORATED" and "CALIFORNIA."
Section 10. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise
requires, the general provisions, rules of construction and definitions
contained in the General Corporation Law shall govern the construction of
these bylaws. Without limiting the generality of the foregoing, the masculine
gender includes the feminine and neuter, the singular number includes the
plural and the plural number includes the singular, and the term "Person"
includes a corporation as well as a natural person.
Article VI
AMENDMENTS
Section 1. POWER OF SHAREHOLDERS. New bylaws may be adopted or these
bylaws may be amended or repealed by the affirmative vote of a majority of the
outstanding shares entitled to vote, or by the written assent of shareholders
entitled to vote such shares, except as otherwise provided by law or by the
articles of incorporation.
Section 2. POWER OF DIRECTORS. Subject to the right of shareholders as
provided in Section 1 of this Article VI to adopt, amend or repeal bylaws, by
laws other than a bylaw or amendment thereof changing the authorized number of
directors may be adopted, amended or repealed by the board of directors.
24
<PAGE> 37
CERTIFICATE OF SECRETARY
I, the undersigned, do hereby certify:
(1) That I am the duly elected and acting secretary of HemaCare
Corporation, a California Corporation; and;
(2) That the foregoing bylaws, comprising 25 pages, constitute
the bylaws of such corporation as duly adopted by action of the Incorporator
of the corporation duly taken on July 22, 1986.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed
the seal of such corporation this 26th day of September, 1988.
/s/ Thomas M. Asher
-----------------------
Secretary
<PAGE> 38
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary information extracted from unaudited financial
statements contained in Form 10-Q for the quarter ending March 31, 1998 and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 1-MO
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> MAR-31-1998
<CASH> 889,000
<SECURITIES> 672,000
<RECEIVABLES> 1,908,000
<ALLOWANCES> 81,000
<INVENTORY> 296,000
<CURRENT-ASSETS> 3,804,000
<PP&E> 2,278,000
<DEPRECIATION> 1,724,000
<TOTAL-ASSETS> 4,429,000
<CURRENT-LIABILITIES> 1,788,000
<BONDS> 0
0
0
<COMMON> 13,557,000
<OTHER-SE> 11,097,000
<TOTAL-LIABILITY-AND-EQUITY> 4,429,000
<SALES> 2,917,000
<TOTAL-REVENUES> 2,917,000
<CGS> 2,400,000
<TOTAL-COSTS> 2,400,000
<OTHER-EXPENSES> 501,000
<LOSS-PROVISION> 81,000
<INTEREST-EXPENSE> 4,000
<INCOME-PRETAX> 16,000
<INCOME-TAX> 0
<INCOME-CONTINUING> 16,000
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 16,000
<EPS-PRIMARY> 0.00
<EPS-DILUTED> 0.00
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
The schedule contains restated summary information extracted from audited
financial statements contained in Form 10-K for the year ended December 31,
1995 and unaudited financial statements contained in Form 10-Q for the
quarters ended June 30, September 30, 1996.
</LEGEND>
<RESTATED>
<S> <C> <C> <C>
<PERIOD-TYPE> YEAR 6-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1995 DEC-31-1996 DEC-31-1996
<PERIOD-END> DEC-31-1995 JUN-30-1996 SEP-30-1996
<CASH> 996,608 996,000 1,369,000
<SECURITIES> 0 0 0
<RECEIVABLES> 1,721,412 1,424,000 1,778,000
<ALLOWANCES> 94,489 93,000 88,000
<INVENTORY> 468,589 149,000 142,000
<CURRENT-ASSETS> 3,223,994 2,984,000 3,712,000
<PP&E> 2,564,019 2,655,000 2,658,000
<DEPRECIATION> 1,513,443 1,693,000 1,788,000
<TOTAL-ASSETS> 4,455,656 4,129,000 4,766,000
<CURRENT-LIABILITIES> 1,841,917 2,283,000 2,004,000
<BONDS> 0 0 0
0 0 0
0 0 0
<COMMON> 12,179,302 12,313,000 13,468,000
<OTHER-SE> (10,952,612) (11,879,000) (11,450,000)
<TOTAL-LIABILITY-AND-EQUITY> 4,455,656 4,129,000 4,766,000
<SALES> 10,782,884 5,489,000 8,114,000
<TOTAL-REVENUES> 10,782,884 5,489,000 8,114,000
<CGS> 8,075,568 5,153,000 7,414,000
<TOTAL-COSTS> 8,075,568 5,153,000 7,414,000
<OTHER-EXPENSES> 2,225,453 1,235,000 1,759,000
<LOSS-PROVISION> 29,015 93,000 88,000
<INTEREST-EXPENSE> 47,463 41,000 39,000
<INCOME-PRETAX> 479,755 (926,000) (1,098,000)
<INCOME-TAX> 0 0 0
<INCOME-CONTINUING> 479,755 (926,000) (1,098,000)
<DISCONTINUED> (4,015,631)<F1> 0 600,000
<EXTRAORDINARY> 0 0 0
<CHANGES> 0 0 0
<NET-INCOME> (3,535,876) (926,000) (498,000)
<EPS-PRIMARY> (0.62) (0.16) .08
<EPS-DILUTED> (0.61) (0.15) .08
<FN>
<F1>Discontinued includes $901,706 from discontinued operations and $3,113,925 from
loss on disposal of discontinued operations. Additional information with
respect to discontinued operations is contained in Note 11 in Notes to
Consolidated Financial Statements
</FN>
</TABLE>
