As filed with the Securities and Exchange Commission on February 27, 1998
Registration No. 333-
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.)
3146 GOLD CAMP DRIVE, RANCHO CORDOVA, CALIFORNIA 95670
(Address of Principal Executive Offices) (Zip Code)
THERMOGENESIS CORP. 1998 EMPLOYEE EQUITY INCENTIVE PLAN
(Full title of the plan)
PHILIP H. COELHO, CEO
THERMOGENESIS CORP.
3146 GOLD CAMP DRIVE
RANCHO CORDOVA, CALIFORNIA 95670
(Name and address of agent for service)
(916) 858-5100
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF OFFERING PRICE PER AGGREGATE OFFERING
SECURITIES TO BE AMOUNT TO BE SHARE PRICE AMOUNT OF
REGISTERED REGISTERED REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock 798,000 $2.71875{(1)} $2,169,562.50 $640.02
underlying 1998
Employee Equity
Incentive Plan
$640.02
</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 February 23,
1998, 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-K for the fiscal year ended June 30,
1997, Amendment to Annual Report on Form 10-K/A-1, filed on October 15,
1997, and Amendment to Annual Report on Form 10-K/A-2, filed on December
5, 1997;
(2) Registrant's Quarterly Report on Form 10-Q for the quarterly period ended
December 31, 1997;
(3) Registrant's Proxy Statement for the Annual Meeting held on February 2,
1998;
(4) Registrant's Current Reports filed on Form 8-K for the event dated
December 2, 1997 and December 31, 1997; and
(5) 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.
The validity of the shares of Common Stock underlying the options offered under
the 1998 Employee Equity Incentive Plan will be passed upon for the Registrant
by David C. Adams, General Counsel and V.P. of Business Development. Mr. Adams
beneficially owned 120,000 options to acquire shares of Common Stock as of
February 23, 1998.
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<PAGE>
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.
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 oaction or
suit was brought determines that, in view of the circumstances of the case,
such person is fairly and reasonably 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.
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<PAGE>
ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
4.3* 1998 Employee Equity Incentive Plan
5.1 Opinion of General Counsel
23.1 Consent of General Counsel is contained in Exhibit 5.1.
23.2 Consent of Ernst & Young LLP, Independent Auditors.
FOOTNOTES TO INDEX
* Incorporated by reference to the Proxy Statement for the Annual Meeting of
Shareholders held on February 2, 1998.
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; (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; and (4) the
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
Annual Report pursuant to section 13(a) or section 15(d) of the Securities Act
of 1934 (and, where applicable, each filing of an employee benefit plan's
Annual Report pursuant to section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in the registration statement shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3
<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 February 25,
1998.
THERMOGENESIS CORP.,
a Delaware corporation
By
Philip H. Coelho,
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: February 25, 1998 By Philip H. Coelho,
Chief Executive Officer and Director
(Principal Executive Officer and Principal
Financial Officer)
Dated: February 25, 1998 By Patrick McEnany, Director
Dated: February 25, 1998 By Hubert Huckel, Director
Dated: February 25, 1998 By James Godsey, President,
Chief Operating Officer and Director
Dated: February 25, 1998 By Renee Ruecker
Director of Finance
(Principal Accounting Officer)
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of THERMOGENESIS
CORP. for the registration of 3,317,200 shares of its common stock and to the
incorporation by reference therein of our report dated August 27, 1997, with
respect to the financial statements and schedule of THERMOGENESIS CORP.
included in its Annual Report (Form 10-K) for the year ended June 30, 1997,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Sacramento, California
January 7, 1998
February 25, 1998 EXHIBIT 5.1.
Board of Directors
THERMOGENESIS CORP.
3146 Gold Camp Drive
Rancho Cordova, CA 95670
RE: Common Stock of THERMOGENESIS CORP.
Dear Gentlemen:
I have acted as General Counsel to THERMOGENESIS CORP., a Delaware
Corporation (the "Company"), in connection with the registration of 798,000
shares of the Company's common stock (the "Shares") under the Securities
Act of 1933, as amended (the "Securities Act"), which will be offered under
options pursuant to the Company's 1998 Employee Equity Incentive Plan (the
"Plan"), all 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, I examined originals or copies
of such documents as I deemed to be relevant. In conducting my
examination, I assumed without investigation, the genuineness of all
signatures, the correctness of all certificates, the authenticity of all
documents submitted to me as originals, the conformity to all 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 me by the Company. In
addition, in rendering this opinion, I 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.
My opinion is limited solely to matters set forth herein. I am admitted to
practice law in the State of California and I 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 the foregoing, after giving due regard to such issues of law as
I 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 considerations set forth
under the Plan and the Stock Agreements, I am of the opinion that the
Shares to be issued under the Plan and the Stock Agreements will be legally
issued, fully paid and nonassessable.
I hereby consent in writing to the use of my opinion as an exhibit to the
Registration Statement and any amendment thereto. By giving such consent,
I do not thereby admit that I 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,
THERMOGENESIS CORP.
David C. Adams
General Counsel
