Exhibit 10.43
HEMACARE
CORPORATION
INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (the
Agreement), dated as of March 24, 2009 is made and
effective as of the date set forth in Section 14 of the
Agreement, by and between HemaCare Corporation, a California
corporation (the Corporation), and John Doumitt, a director and/or
officer of the Corporation (the Indemnitee).
RECITALS
A.
The Corporation and the Indemnitee
recognize that the present state of the law relating to director
and officer liability is too uncertain to provide the
Corporation’s directors and officers with adequate and
reliable advance knowledge or guidance with respect to the legal
risks and potential liabilities to which they may become personally
exposed as a result of performing their duties for the
Corporation;
B.
The Corporation and the Indemnitee
are aware of the substantial growth in the number of lawsuits filed
against corporate directors and officers in connection with their
activities in such capacities and by reason of their status as
such;
C.
The Corporation and the Indemnitee
recognize that the cost of defending against such lawsuits, whether
or not meritorious, is typically beyond the financial resources of
most directors and officers of the Corporation;
D.
The Corporation and the Indemnitee
recognize that the legal risks and potential liabilities, and the
threat thereof, associated with proceedings filed against the
directors and officers of the Corporation bear no reasonable
relationship to the amount of compensation received by the
Corporation’s directors and officers;
E.
The Corporation, after reasonable
investigation prior to the date hereof, has determined that the
liability insurance coverage available to the Corporation as of the
date hereof is inadequate, unreasonably expensive or both.
The Corporation believes, therefore, that the interest of the
Corporation’s stockholders would be best served by a
combination of (i) insurance, as provided in Section 8
below, and (ii) a contract with its directors and officers,
including the Indemnitee, to indemnify them to the fullest extent
permitted by law (as in effect on the date hereof, or, to the
extent any amendment may expand such permitted indemnification, as
hereafter in effect) against personal liability for actions taken
in the performance of their duties to the Corporation;
F.
The Corporation’s Articles of
Incorporation and Bylaws authorize the indemnification of the
directors and officers of the Corporation, subject to the
limitations set forth in Section 317 of the California
Corporations Code;
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G.
The Board of Directors of the
Corporation has concluded that, to retain and attract talented and
experienced individuals to serve as directors and officers of the
Corporation and to encourage such individuals to take the business
risks necessary for the success of the Corporation, it is necessary
for the Corporation to contractually indemnify its directors and
officers, and to assume for itself liability for expenses and
damages in connection with certain claims against such directors
and officers in connection with their service to the Corporation,
and has further concluded that the failure to provide such
contractual indemnification could result in great harm to the
Corporation and its stockholders;
H.
The Corporation desires and has
requested the Indemnitee to serve or continue to serve as a
director or officer of the Corporation, free from undue concern for
the risks and potential liabilities associated with such services
to the Corporation; and
I.
The Indemnitee is willing to serve,
or continue to serve, the Corporation, provided, and on the
expressed condition, that he is furnished with the indemnification
provided for herein.
AGREEMENT
NOW, THEREFORE, the Corporation and
Indemnitee agree as follows:
1.
Definitions.
a.
“Expenses” means, for
the purposes of this Agreement, all direct and indirect costs of
any type or nature whatsoever (including, without limitation, any
fees and disbursements of Indemnitee’s counsel, accountants
and other experts and other out-of-pocket costs) actually and
reasonably incurred by the Indemnitee in connection with the
investigation, preparation, defense or appeal of a Proceeding;
provided, however, that Expenses shall not include judgments,
fines, penalties or amounts paid in settlement of a
Proceeding.
b.
“Other enterprise”
includes, for the purposes of this Agreement, employee benefit
plans; references to “fines” includes any excise taxes
assessed on Indemnitee with respect to an employee benefit plan;
and references to “serving at the request of the
Corporation” includes any service as a director,
officer, employee or agent of the Corporation which imposes duties
on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
its beneficiaries; and if Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan,
Indemnitee shall be deemed to have acted in a manner “not
opposed to the best interests of the Corporation” as referred
to in this Agreement.
c.
“Proceeding” means, for
the purposes of this Agreement, any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (including an action brought by or
in the right of the Corporation) in which Indemnitee may be or may
have been involved as a party or otherwise, by reason of the fact
that Indemnitee is or was a director or officer of the Corporation,
by reason of any action taken by
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Indemnitee or of any inaction on
Indemnitee’s part while acting as such director or officer or
by reason of the fact that Indemnitee is or was serving at the
request of the 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 and/or
officer of the foreign or domestic corporation which was a
predecessor corporation to the Corporation or of another enterprise
at the request of such predecessor corporation, whether or not
Indemnitee is serving in such capacity at the time any liability or
expense is incurred for which indemnification or reimbursement can
be provided under this Agreement.
2.
Agreement to Serve
. In consideration of the
protection afforded by this Agreement, if Indemnitee is a director
of the Corporation, Indemnitee agrees to serve at least for the
balance of the current term as a director and not to resign
voluntarily during such period without the written consent of a
majority of the Board of Directors. If Indemnitee is an
officer of the corporation not serving under an employment
contract, Indemnitee agrees to serve in such capacity at least for
the balance of the current fiscal year of the Corporation and not
to resign voluntarily during such period without the written
consent of a majority of the Board of Directors. Following
the applicable period set forth above, Indemnitee agrees to serve
or continue to serve in such capacity as a director or officer of
the Corporation to the best of his or her abilities at the will of
the Corporation or under separate contract, if such contract
exists, for so long as Indemnitee is duly elected or appointed and
qualified or until such time as Indemnitee tenders his or her
resignation in writing. Nothing contained in this Agreement
is intended to create in Indemnitee any right to continued
employment.
3.
Indemnification.
a.
Third Party
Proceedings . The
Corporation shall indemnify Indemnitee against Expenses, judgments,
fines, penalties or amounts paid in settlement (if the settlement
is approved in advance by the Corporation) actually and reasonably
incurred by Indemnitee in connection with a Proceeding (other than
a Proceeding by or in the right of the Corporation) if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed
to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe Indemnitee’s conduct was
unlawful. The termination of any Proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith and in a
manner which Indemnitee reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any
criminal Proceeding, had no reasonable cause to believe that
Indemnitee’s conduct was unlawful.
b.
Proceedings by or in the Right of
the Corporation .
To the fullest extent permitted by law, the Corporation shall
indemnify Indemnitee against Expenses and amounts paid in
settlement, actually and reasonably incurred by Indemnitee in
connection with a Proceeding by or in the right of the Corporation
to procure a judgment in its favor if Indemnitee acted in good
faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Corporation.
Notwithstanding the foregoing, no indemnification shall be made in
respect of any claim, issue or matter as to which Indemnitee shall
have been adjudged liable to the Corporation
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unless and only to the extent that the state
court of California or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, Indemnitee is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery or such other court
deems proper.
c.
Scope . Notwithstanding any other provision of
this Agreement but subject to Section 13(b), the Corporation
shall indemnify the Indemnitee to the fullest extent permitted by
law, notwithstanding that such indemnification is not specifically
authorized by other provisions of this Agreement, the
Corporation’s Articles of Incorporation, the
Corporation’s Bylaws or by statute. The Corporation also
acknowledges that it is the intent of the parties that this
Agreement applies to the Corporation as well as any of its
subsidiaries.
4.
Determination of Right to
Indemnification .
Upon receipt of a written claim addressed to the Board of Directors
for i
