As filed with the Securities and Exchange Commission on July 24, 1996
Registration No. 33-____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THERMOGENESIS CORP.
(Exact Name of registrant as specified in its charter)
DELAWARE 94-3018487
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
11431 SUNRISE GOLD CIRCLE, SUITE A, RANCHO CORDOVA, CALIFORNIA 95742
(Address of Principal Executive Offices) (Zip Code)
PROFESSIONAL SERVICES AND CONSULTING AGREEMENT; AND
THERMOGENESIS CORP. AMENDED 1994 STOCK OPTION PLAN
(Full title of the plan)
PHILIP H. COELHO, PRESIDENT AND CEO
THERMOGENESIS CORP.
11431 SUNRISE GOLD CIRCLE, SUITE A
RANCHO CORDOVA, CALIFORNIA 95742
(Name and address of agent for service)
(916) 858-5100
(Telephone number, including area code, of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AGGREGATE OFFERING
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER PRICE AMOUNT OF
REGISTERED REGISTERED SHARE REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock 1,002,000 $4.25{(1)} $4,258,500 $1,468.45
</TABLE>
(1) Calculated in accordance with Rule 457(c) of the Securities Act of 1933, as
amended ("Securities Act"). Estimated for the sole purpose of calculating the
registration fee and based upon the average of the high and low price per share
of the common stock of the Company on July 19, 1996, as reported on the
National Association of Securities Dealers Automated Quotations System.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
THERMOGENESIS CORP., a Delaware corporation ("Registrant"), by this reference
hereby incorporates into this registration statement the following documents
filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"):
(1) Registrant's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1995, and Amendment to Annual Report on Form 10-KSB/A1, filed
on October 26, 1995;
(2) Registrant's Quarterly Report on Form 10-QSB for the quarterly period
ended September 30, 1995;
(3) Registrant's Quarterly Report on Form 10-QSB for the quarterly period
ended December 31, 1995, and amendment to that report on Form 10-QSB/A
filed on June 3, 1996;
(4) Registrant's Quarterly Report on Form 10-QSB for the quarterly period
ended March 31, 1996, and amendment to that report on Form 10-QSB/A filed
on June 3, 1996;
(5) Registrant's Proxy Statement for the Annual Meeting held on May 29, 1996;
(6) Registrant's Current Report filed on Form 8-K for the event dated
September 27, 1995; and
(7) Registrant's Current Report filed on Form 8-K for the event dated
May 29, 1996;
(8) The Description of Securities in Item 1 of the Registration Statement on
Form 8A for registration of the Registrant's common stock pursuant to
Section 12(g) of the Exchange Act.
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination
of the offering of the Common Stock offered hereby shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of the registration statement
to the extent that a statement contained herein modifies or replaces such
statement. Any such statement shall not be deemed to constitute a part of this
registration statement except as so modified or replaced.
ITEM 4. DESCRIPTION OF SECURITIES.
The Registrant's common stock to be offered under this registration statement
is registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the Delaware General Corporation Law ("DGCL") permits a
Delaware corporation to include in its certificate of incorporation a provision
which would limit or eliminate personal liability of directors for breaches of
their fiduciary duty, except that the provision does not eliminate the
liability of a director for the following: (i) any breach of the director's
duty of loyalty to the corporation or its shareholders; (ii) acts or omissions
not in good faith or which involve intentional misconduct or knowing violation
of the law; (iii) the liability of directors for unlawful payment of dividends
or stock redemption; or (iv) any transaction in which the director derived a
personal benefit. This provision does not eliminate the liability of a
director for actions taken before the date when the provision becomes
effective.
Article NINTH of Registrant's Amended and Restated Certificate of Incorporation
eliminates the personal liability of Registrant's directors to the maximum
extent permitted by the DGCL.
Section 145 of the DGCL provides that a director, officer, employee, or agent
may be indemnified by Registrant from and against expenses (including
attorney's fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred in connection with a threatened, pending, or completed
action, suit or proceeding, whether civil, criminal, administrative, or
investigative, in which such person is involved by reason of such person's
position with the corporation, or that the person is serving as a director,
officer, agent or employee of another entity pursuant to a request by the
corporation, provided that such person acted in good faith and in a manner that
such person reasonably believed to be in the best interests of the corporation
and, in the case of a criminal proceeding, such person had no reasonable cause
to believe his conduct was unlawful. Such person may not be indemnified if the
person has been adjudged liable to the corporation in the performance of such
person's duties to the corporation, unless the Court of Chancery or the court
in which such action or suit was brought determines that, in view of the
circumstances of the case, such person is fairly and reasonable entitled to
indemnity. To the extent that such person has been successful on the merits or
otherwise in defense of any proceeding, the DGCL provides that such person
shall be indemnified against expenses (including attorney's fees) reasonably
and actually incurred.
Article TENTH of Registrant's Amended and Restated Certificate of Incorporation
allows for such indemnification to the maximum extent allowed by the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
4.1 *Amended and Restated Certificate of Incorporation.
4.2 **Amended and Restated Bylaws.
4.3 ***Amended 1994 Stock Option Plan.
5.1 Opinion of Weintraub, Genshlea & Sproul.
24.1 Consent of Weintraub, Genshlea & Sproul is contained in
Exhibit 5.1.
24.2 Consent of Ernst & Young LLP, Independent Auditors.
FOOTNOTES TO INDEX
* Incorporated by reference to Form 8-K for May 29, 1996.
** Incorporated by reference to Form 10-KSB for the year ended June 30, 1994.
*** Incorporated by reference to the Proxy Statement for the Annual Meeting
of Shareholders held on December 7, 1994
Item 9. Undertakings.
The undersigned Registrant hereby undertakes (1) to file, during any period in
which offers or sales are being made, a post-effective amendment to this
registration statement to include any additional or changed material
information with respect to the plan of distribution; (2) that, for the
purposes of determining any liability under the Securities Act, each such post-
effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering; and (3) to remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Rancho Cordova, State of California, on July 22,
1995.
THERMOGENESIS CORP.,
a Delaware corporation
By s/ PHILIP H. COELHO
Philip H. Coelho,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
Dated: July 22, 1996. By s/ PHILIP H. COELHO
Philip H. Coelho, President,
Chief Executive Officer and
Director
(Principal Executive Officer)
Dated: July 22, 1996. By s/ CHARLES DE B. GRIFFITHS
Charles de B. Griffiths, V.P.
Secretary, and Director
Dated: July 22, 1996. By s/ MERRILL K. PARKER
Merrill K. Parker, Controller
(Principal Accounting Officer
and Principal Financial Officer)
Dated: July 12, 1996. By s/ SID V. ENGLER
Sid V. Engler, Director
Dated: July 12, 1996. By s/ NOEL K. ATKINSON
Noel K. Atkinson, Director
Dated: July 22, 1996. By s/ WALTER J. LUDT
Walter J. Ludt, III, Director
July 22, 1996 EXHIBIT 5.1.
Board of Directors
THERMOGENESIS CORP.
11431 Sunrise Gold Cir., Suite A
Rancho Cordova, California 95742
RE:Common Stock of THERMOGENESIS CORP.
Dear Gentlemen:
We have acted as counsel to THERMOGENESIS CORP., a Delaware
corporation (the "Company"), in connection with the registration of
1,002,000 shares of the Company's common stock (the "Shares") under
the Securities Act of 1933, as amended (the "Securities Act"), which
will be offered as follows: (i) 1,000,000 shares shall be offered on a
contract basis pursuant to the Company's Amended 1994 Stock Option
Plan ("Plan"), and (ii) 2,000 shares will be issued pursuant to a
consulting agreement to which the Company is a party ("Consulting
Agreement"), all as further described in the Company's registration
statement on Form S-8 filed under the Securities Act (the
"Registration Statement").
For the purpose of rendering this opinion, we examined originals or
copies of such documents as we deemed to be relevant. In conducting
our examination, we assumed, without investigation, the genuineness of
all signatures, the correctness of all certificates, the authenticity
of all documents submitted to us as originals, the conformity to
original documents of all documents submitted as certified or
photostatic copies, and the authenticity of the originals of such
copies, and the accuracy and completeness of all records made
available to us by the Company. In addition, in rendering this
opinion, we assumed that the Shares will be offered in the manner and
on the terms identified or referred to in the Registration Statement,
including all amendments thereto.
Our opinion is limited solely to matters set forth herein. Attorneys
practicing in this law firm are admitted to practice in the State of
California and we express no opinion as to the law of any other
jurisdiction other than the laws of the State of Delaware and the laws
of the United States.
Based upon and subject to the foregoing, after giving due regard to
such issues of law as we deemed relevant, and assuming that (i) the
Registration Statement becomes and remains effective, and the
Prospectus which is a part of the Registration Statement (the
"Prospectus"), and the Prospectus delivery requirements with respect
thereto, fulfill all of the requirements of the Securities Act,
throughout all periods relevant to the opinion, (ii) all offers and
sales of the Shares will be made in compliance with the securities
laws of the states having jurisdiction thereof, and (iii) the Company
receives, to the extent applicable, the consideration set forth under
the Plan and the Consulting Agreement, we are of the opinion that the
Shares to be issued under the Plan and the Consulting Agreement will
be legally issued, fully paid and nonassessable.
We hereby consent in writing to the use of our opinion as an exhibit
to the Registration Statement and any amendment thereto. By giving
such consent, we do not thereby admit that we come within the category
of persons where consent is required under Section 7 of the Securities
Act or the rules and regulations of the Securities and Exchange
Commission.
Sincerely,
s/ Weintraub Genshlea & Sproul
Weintraub Genshlea & Sproul
Law Corporation
EXHIBIT 24.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Professional Services and Consulting Agreement
and the Amended 1994 Stock Option Plan of THERMOGENESIS CORP. of our report
dated August 23, 1995, with respect to the financial statements of
THERMOGENESIS CORP. included in its Annual Report for the year ended
June 30, 1995, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Sacramento, California
July 18, 1996
