As filed with the Securities and Exchange Registration No. 333-_____
Commission on February 8, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THERMOGENESIS CORP.
(Exact name of the Company as specified in its charter)
Delaware 94-3018487
(State or other jurisdiction or incorporation (I.R.S. Employer
or organization) Identification Number)
3146 Gold Camp Drive
Rancho Cordova, California 95670
(916) 858-5100
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
Philip H. Coelho
Chief Executive Officer
THERMOGENESIS CORP.
3146 Gold Camp Drive
Rancho Cordova, CA 95670
(916) 858-5100
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
David C. Adams, Esq. Daniel B. Eng, Esq.
General Counsel BARTEL ENG LINN & SCHRODER
THERMOGENESIS CORP. 300 Capitol Mall, Suite 1100
3146 Gold Camp Drive Sacramento, CA 95814
Rancho Cordova, California 95670 (916) 442-0400
(916) 858-5110
Approximate date of commencement of the proposed sale to the public: As soon as
practicable, and from time to time after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<PAGE>ii
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
Proposed Proposed
maximum maximum Amount of
Title of each class of Amount to be offering price aggregate registration
securities to be registered registered per share offering price fee
- -------------------------------- ------------- -------------- -------------- -------------
Common Stock Underlying Series A
Preferred Stock 5,387,700 (1) $2.625 (3) $14,142,712 $4,172.10
Common Stock Underlying Placement
Agent Warrant 200,000 (2) $2.625 (4) $525,000 $154.88
Common Stock Underlying Warrants 90,000 (2) $2.625 (4) $236,250 $69.69
Total 5,677,700 $14,903,962 $4,396.67
</TABLE>
(1) Represents the number of shares of common stock for resale upon the
conversion of the Series A preferred stock.
(2) Represents the number of shares of common stock for resale upon the
exercise of warrants.
(3) 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 THERMOGENESIS CORP. on
February 4, 1999, as reported on the Nasdaq SmallCap Market.
(4) Calculated in accordance with Rule 457(g) of the Securities Act.
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
<PAGE>1
Subject to Completion February 8, 1999 PROSPECTUS
5,677,700 Shares
THERMOGENESIS CORP.
Common Stock
All of the shares of common stock of THERMOGENESIS CORP. offered are
being sold by selling stockholders listed in this prospectus. Of the shares
being sold by the selling stockholders, up to 5,387,700 shares may be resold
upon the conversion of Series A Convertible Redeemable Preferred Stock, and up
to 290,000 shares may be resold upon the exercise of outstanding warrants. The
Series A preferred stock and warrants were issued in private placements
completed in November 1998 and January 1999. We will not receive any proceeds
from the sale of any common stock by the selling stockholders.
Our common stock is traded and listed on The Nasdaq Stock Market,
SmallCap Market, under the symbol "KOOL." On February 4, 1999, the last reported
sale price for the common stock was $2.6875. There is no market for either the
Series A preferred stock or the warrants. We are required to register the shares
for resale and will pay for expenses related to this prospectus estimated to be
$15,000.
-------------------------------
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" AT PAGE 5.
-------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE COMMON STOCK OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-------------------------------
The date of this Prospectus is February 8, 1999.
<PAGE>2
AVAILABLE INFORMATION
THERMOGENESIS CORP. files annual, quarterly and current reports, proxy
statements and other information with the Securities and Exchange Commission.
You may read and copy any reports, statements or other information on file at
the Commission's public reference room in Washington, D.C. You can request
copies of those documents, upon payment of a duplicating fee, by writing to the
Commission.
THERMOGENESIS CORP. has filed a registration statement on Form S-3 with
the Commission. This prospectus, which forms a part of that registration
statement, does not contain all information included in the registration
statement. Certain information is omitted and you should refer to the
registration statement and its exhibits. With respect to references made in this
prospectus to any contract or other document of THEMOGENESIS CORP., such
references are not necessarily complete and you should refer to the exhibits
attached to the registration statement for copies of the actual contract or
document. You may review a copy of the registration statement at the
Commission's public reference room, and at the Commission's regional offices
located in Chicago, Illinois and New York, New York. Please call the Commission
at 1-800-SEC-0330 for further information on the operation of the public
reference rooms. THEMOGENESIS CORP.'s filings and the registration statement can
also be reviewed by accessing the Commission's website at http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" the information
we file with them, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is considered part of this prospectus, and information that we file later with
the Commission will automatically update and supersede the information in this
prospectus. We incorporate by reference the documents listed below and any
future filings we make with the Commission under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 until the selling stockholders sell
all the shares offered by this prospectus.
(1) Annual Report on Form 10-K for the year ended June 30, 1998;
(2) Quarterly Report on Form 10-Q for the quarter ended September 30,
1998;
(3) Current Report on Form 8-K for the event dated January 14, 1999;
(4) Proxy Statement for the Annual Meeting of Stockholders held on
December 11, 1998; and
(5) The description of THEMOGENESIS CORP.'s common stock contained in
Form 8-A.
THERMOGENESIS CORP.'s Exchange Act file number is 0-16375. You may
request a copy of these filings at no cost, by writing or telephoning us at the
following address: THERMOGENESIS CORP., 3146 Gold Camp Drive, Rancho Cordova,
California 95670, Attention: Corporate Secretary; telephone (916) 858-5100.
<PAGE>3
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this
prospectus. This summary is not complete and does not contain all of the
information that you should consider before investing in the common stock. You
should carefully read the entire prospectus, including the documents and
information incorporated by reference into it. This Prospectus contains
forward-looking statements that are subject to risks and uncertainties, such as
THERMOGENESIS CORP.'s products being subject to regulatory approvals, market
acceptance of new technologies, and other risks detailed in the section entitled
Risk Factors and in THERMOGENESIS CORP.'s Annual Report as filed with the
Commission. A glossary of certain technical terms used is located at the back of
the Prospectus.
Our Business
THERMOGENESIS CORP. is a leading developer and manufacturer of
micro-manufacturing systems designed to harvest biopharmaceutical drugs from
blood. Biopharmaceutical drugs utilize the body's naturally occurring proteins,
enzymes, growth factors, hormones and progenitor cells for the treatment of
human disease. THERMOGENESIS CORP.'s technology platforms micro-manufacture
biopharmaceutical drugs from a single donation of blood in contrast to "pools"
of blood from thousands of donors or expensive recombinant technology.
Our Strategy
Our strategy to exploit our market opportunity includes the following:
o Utilize our expertise in the areas of thermodynamics and
cryopreservation.
o Develop products through platform designs to build new products
with only a small incremental research and development
investment.
o Become the leader in the design, development, manufacture and
sale of medical devices which produce biopharmaceutical drugs
from an autologous or directed single donor unit of blood to
reduce or eliminate contamination and risk of infection to the
recipient.
o Develop disposable products which are used with platform designed
products to provide a recurrent stream of revenue.
Our History
THERMOGENESIS CORP.'s core expertise lies in the technical fields of
thermodynamics, and cryopreservation; technologies that it initially applied to
the development of ultra rapid freezers and thawers, Food and Drug
Administration ("FDA") class I products currently being sold to blood banks and
hospitals in 32 countries throughout the world. Until the fourth quarter of
fiscal year 1998, THERMOGENESIS CORP.'s revenues had been principally derived
from these core products. Following four years of intensive research and
development THERMOGENESIS CORP. began shipping in the second quarter of fiscal
year 1998 its first new biopharmaceutical drug micro- manufacturing system, the
BioArchiveTM System, a computer controlled liquid nitrogen platform with
dedicated disposables for the manufacture, cryopreservation and archive of
<PAGE>4
hematopoietic stem and progenitor cells sourced from placental cord blood, which
is used to reconstitute the immune system of patients suffering from leukemia,
lymphoma, diverse inherited anemias, or hypoproliferative stem cell disorders.
THERMOGENESIS CORP. has entered into a period of rapid transformation as it
begins to manufacture and market micro-manufacturing systems which may generate
recurring revenues from the ongoing sale of high margin blood processing
disposables.
THERMOGENESIS CORP.'s strategy is to utilize its two new Biopharmaceutical
Technology Platforms - the BioArchive Platform and the CryoSealTM Platform - as
the basis for developing micro- manufacturing systems to produce
biopharmaceutical drugs from either autologous or single directed donor blood
which will compete in two major medical markets: Wound Care and Cellular
Therapy.
THERMOGENESIS CORP. is incorporated in Delaware. THERMOGENESIS CORP.'s principal
executive offices are located at 3146 Gold Camp Drive, Rancho Cordova,
California 95670 and its telephone number is (916) 858-5100.
Risk Factors
For a discussion of considerations relevant to an investment in the common
stock. See the section entitled "RISK FACTORS" beginning on page 5.
The Offering
Common Stock Outstanding Before the Offering.........................18,930,685
Common Stock Offered by Selling Stockholders(a).......................5,677,700
Common Stock Outstanding After the Offering(a).......................24,608,385
Use of Proceeds........................................THERMOGENESIS CORP. will
not receive any proceeds
from the offering
Nasdaq SmallCap Symbol......................................................KOOL
(a) Assumes that Series A preferred stock shareholders have converted such
shares into 5,387,700 shares of common stock in the aggregate and that
warrantholders have exercised their warrants to purchase 290,000 shares
of common stock in the aggregate.
<PAGE>5
RISK FACTORS
An investment in our common stock involves a number of very significant risks.
Because of these risks, only persons able to bear the risk of and withstand the
loss of their entire investment should invest in the common stock. Prospective
investors should also consider the following before making an investment
decision.
Recurring Losses. Except for net income of $11,246 for fiscal 1994 on net sales
of $2,678,192, THERMOGENESIS CORP. has not been profitable since its inception.
For the fiscal year ended June 30, 1998, THERMOGENESIS CORP. had a net loss of
$9,550,795 on net sales of $4,396,891, and an accumulated deficit at June 30,
1998, of $20,739,545. The report of independent auditors on the Company's June
30, 1998, financial statements includes an explanatory paragraph indicating
there is substantial doubt about the Company's ability to continue as a going
concern. For the three months ended September 30, 1998, THEMOGENESIS CORP. had a
net loss of $1,804,494.
Dependence Upon New Products for Future Growth. Historically, substantially all
of our sales have been from products related to the freezing, thawing and
storing of blood plasma. Because we expect the blood plasma market to have
limited growth, new products for the biotechnology market will have to be
developed for future growth. THEMOGENESIS CORP. is currently focusing on
developing thermodynamic blood processing systems such as: (1) a system for
processing cryoprecipitated AHF utilizing a thermodynamic device and disposable
processing containers ("CryoSeal(TM) System"); and (2) a system for collecting,
processing, controlled-rate freezing and inventory management of thermolabile
products in liquid nitrogen utilizing disposable containers ("N2 BioArchive(TM)
System"). See "Annual Report on Form 10-K -- The Company." Although these two
products use technology related to the freezing, thawing and storage of blood
plasma, these products represent a departure from THERMOGENESIS CORP.'s current
core blood plasma business. Further, although THERMOGENESIS CORP. has had
discussions with experts in areas of application for these products, these
products are still in their development and initial market phase. THERMOGENESIS
CORP. has not yet had significant sales for these products. No assurance can be
given that all of these potential products can be successfully developed, and if
developed, that a market will also develop for them.
Government Regulation of Products. Most of THERMOGENESIS CORP.'s products
require FDA clearance to sell in the U.S. Further, THERMOGENESIS CORP. will
require approval from comparable agencies to sell its products in foreign
countries. These approvals may limit the U.S. or foreign market in which
THERMOGENESIS CORP. products may be sold or circumscribe applications for U.S.
or foreign markets in which THERMOGENESIS CORP.'s products may be sold. Further,
if THERMOGENESIS CORP. cannot establish that its products are substantially
equivalent, or superior, in safety and efficacy to previously approved products
in the U. S., delays may result in final clearance from the FDA for marketing
its products. No assurance can be given that the FDA clearance to market
THERMOGENESIS CORP.'s products in the U. S. will be obtained, or that regulatory
approval will be received in all foreign countries. Although the standards
established by the FDA are generally more encompassing, THERMOGENESIS CORP.'s
products may also be required to meet certain additional criteria or receive
certain approvals from other foreign governments for marketing and sales.
<PAGE>6
Influence of Governmental and Insurance Companies on Sales of Products Made by
THERMOGENESIS CORP. THERMOGENESIS CORP.'s business may be materially affected by
continuing efforts by government and third party payors such as medicare,
medicaid, private health insurance plans to reduce the costs of healthcare. For
example, in certain foreign markets the pricing and profit margins of certain
healthcare products are subject to government controls. In the U.S.,
THEMOGENESIS CORP. expects that there will continue to be a number of federal
and state proposals to implement similar government control. In addition,
increasing emphasis on managed care in the U.S. will continue to place pressure
on the pricing of healthcare products. As a result, continuing effort to contain
healthcare costs may result in reduced sales or price reductions for
THERMOGENESIS CORP.'s products.
Inability to Protect Our Patents, Trademarks and Other Proprietary Rights Could
Adversely Impact Our Competitive Position. We believe that our patents,
trademarks and other proprietary rights are important to our success and our
competitive position. Accordingly, we devote substantial resources to the
establishment and protection of our patents, trademarks and proprietary rights.
We currently hold patents for products, and have patents pending for additional
products, that we market or intend to market. However, our actions to establish
and protect our patents, trademarks and other proprietary rights may be
inadequate to prevent imitation of our products by others or to prevent others
from claiming violations of their trademarks and proprietary rights by us. If
our products are challenged as infringing upon patents of other parties, we will
be required to modify the design of the product, obtain a license or litigate
the issue, all of which may have an adverse business effect on THERMOGENESIS
CORP.
Trade Secrets. We use various methods, including the use of confidentiality
agreements with employees, vendors and customers, to protect our trade secrets
and proprietary know-how for our products. However, such methods may not provide
complete protection and there can be no assurance that others will not obtain
THERMOGENESIS CORP.'s know-how, or independently develop the same or similar
technology.
Competition. THERMOGENESIS CORP. hopes to develop a competitive advantage in the
medical applications of its products, but there are many competitors that are
substantially larger and possess greater financial resources and personnel than
THERMOGENESIS CORP. THERMOGENESIS CORP.'s current principal market is the users
of ultra-rapid blood plasma freezing and thawing equipment. There are four
companies which sell freezers to the blood plasma freezing industry which are
larger and possess greater financial and other resources than THERMOGENESIS
CORP. The CryoSeal System may face competition from major plasma fractionaters
which currently sell fibrin glue sourced from pooled plasma outside the U. S.
With regard to the BioArchive System, numerous larger and better financed
medical device manufacturers may choose to enter this market as it develops.
Limited Marketing and Sales Force for New Products. THERMOGENESIS CORP.
currently sells its existing Class I medical devices through a direct sales and
marketing force. Although THERMOGENESIS CORP. has entered into distribution
agreements for the area of the two new platform products there are no assurances
that the distributors will produce significant sales of the systems.
Lack of Production Experience for New Products. THERMOGENESIS CORP. currently
manufactures its Class I medical devices - blood plasma thawers and freezers.
<PAGE>7
Although THERMOGENESIS CORP. has redesigned its manufacturing facility to
accommodate the BioArchive System and the CryoSeal System, THERMOGENESIS CORP.
does not have significant experience in manufacturing more complex Class II
medical devices such as the BioArchive System and the CryoSeal System or in the
manufacture of disposables. Furthermore, there can be no assurance that
THERMOGENESIS CORP.'s current resources and manufacturing facility could handle
a significant increase in orders for either the BioArchive System or the
CryoSeal System. If THERMOGENESIS CORP. is unable to meet demand for sales of
the new systems, it would need to contract with third-party manufacturers for
the backlog, and no assurances can be made that such third-party manufacturers
can be retained, or retained on terms favorable to THERMOGENESIS CORP. and its
pricing of the equipment. Inability to have products manufactured by third
parties at a competitive price will erode anticipated margins for such products,
and negatively impact profitability.
No Assurance of New Product Acceptance. The market acceptance of THERMOGENESIS
CORP.'s new products in development will depend upon the medical community and
third-party payers accepting the products as clinically useful, reliable,
accurate and cost effective compared to existing and future products or
procedures. Market acceptance will also depend on THERMOGENESIS CORP.'s ability
to adequately train technicians on how to use the CryoSeal System and the
BioArchive System. Even if THERMOGENESIS CORP.'s systems are clinically adopted,
the use may not be recommended by the medical profession or hospitals unless
acceptable reimbursement from health care and third-party payers is available.
Failure of either of these new systems to achieve significant market share could
have material adverse effects on THERMOGENESIS CORP.'s long term business,
financial condition and results of operation. See "Annual Report on Form 10-K --
Description of Business" and "Risk Factors -- Uncertain Availability of
Third-Party Reimbursement."
There is No Assurance That Our Senior Management Team Will Remain With Us.
THERMOGENESIS CORP. is dependent upon the experience and services of Philip H.
Coelho, Chairman and Chief Executive Officer, and James H. Godsey, President and
Chief Operating Officer. The loss of either person would adversely affect
THERMOGENESIS CORP.'s operations. THERMOGENESIS CORP. has obtained key man life
insurance covering Mr. Coelho in the amount of $1,000,000 as some protection
against this risk. See "Annual Report on Form 10-K -- Employees."
Product Liability and Uninsured Risks. We may be liable if any of our products
causes injury, illness or death. We also may be required to recall certain of
our products should they become damaged or if they are defective. We are not
aware of any material product liability claim against us. Further we maintain a
general liability policy which includes product liability coverage of $1,000,000
per occurrence and $2,000,000 per year in the aggregate. However, a product
liability claim against us could have a material adverse effect on our business
or financial condition.
Risk of Software Defects. Our CryoSeal System and BioArchive System rely on
computer software components that direct the harvesting process of the CryoSeal
System, and the controlled-rate freezing, storage and retrieval robotics of the
BioArchive System. The software program for these products, including updated
versions in the future, may contain undetected errors or failures. Despite
testing by the Company and customers, there can be no assurance that errors will
not be found in the software during continuous use. Unfound errors may result in
loss or delay in market acceptance, which could have an adverse material effect
on the Company's business, financial condition and results of operations.
<PAGE>8
Future Sales of Unregistered Shares Could Have A Negative Impact on Trading
Price of the Common Stock. Under an agreement with the selling stockholders, we
have agreed to register for resale by this prospectus shares of common stock to
be issued upon the conversion of the Series A preferred stock and upon the
exercise of the warrants. The number of shares of common stock available for
resale by this prospectus represents approximately 30% of our common stock
outstanding. Because the trading price for our common stock may be affected by
the number of shares available for resale, the market price of THERMOGENESIS
CORP. common stock could drop as a result of sales of a large number of shares
of THERMOGENESIS CORP. common stock in the market after this offering, or the
perception that such sales could occur.
Possible Need for Additional Financing. Based on proceeds of approximately $6.5
million received in THERMOGENESIS CORP.'s most recent private placement, we
believe we will have sufficient working capital for our 1999 fiscal year
operations. However, if actual sales do not meet expectations, or marketing and
production costs increase significantly, we may need additional financing to
complete and implement our business objectives. Further, delays in obtaining
required governmental approvals to, or additional testing requirements prior to,
marketing our new products will result in decreased revenues and increased costs
that may require THERMOGENESIS CORP. to seek additional financing. THERMOGENESIS
CORP. is attempting to obtain a bank line of credit secured by its accounts
receivable. However, we cannot guarantee that we will be able to obtain a
working line of credit. In the event that there is a cash shortage and
THERMOGENESIS CORP. is unable to obtain a bank loan, additional equity financing
will be required which will have the effect of diluting the ownership of
existing shareholders.
No Cash Dividends. To date, we have not paid any cash dividends, and we do not
expect to pay any cash on our common stock in the foreseeable future.
<PAGE>9
SUMMARY FINANCIAL INFORMATION
The following summary information is derived from the financial statements
included in THERMOGENESIS CORP.'s Annual Report on Form 10-K for the year ended
June 30, 1998, and Quarterly Report on Form 10-Q for the quarter ended September
30, 1998, incorporated by reference herein, and should be read in conjunction
with those financial statements and the related notes thereto:
<TABLE>
<S> <C> <C> <C> <C> <C>
For the Three Months
For the Year Ended June 30, Ended September 30,
--------------------------- ---------------------
1996 1997 1998 1997 1998
----------- ------------- ----------- ----------- -------------
Statement of Operations Data:
Revenues $ 4,124,634 $ 6,614,044 $ 4,396,891 $ 711,100 $ 1,098,683
Operating expenses $ 3,018,356 $ 7,207,274 $ 8,493,699 $ 2,109,332 $ 1,642,407
Net loss $ (568,534) $ (4,805,822) $ (9,550,795) $(2,461,928) $ (1,804,494)
Net loss per common share $ (0.05) $ (0.32) $(0.54) $ (0.16) $ (0.10)
Weighted average shares 11,491,000 14,805,000 7,629,876 15,872,388 18,925,669
outstanding
</TABLE>
<TABLE>
<S> <C> <C> <C> <C>
June 30, September 30,
-------- -------------
1997 1998 1997 1998
------------ ----------- ----------- ------------
Selected Balance Sheet Data:
Working Capital $ 6,407,237 $3,723,317 $3,947,112 $2,039,959
Total Assets $10,187,726 $7,799,242 $7,918,430 $5,943,760
Long Term Obligations $ 164,283 $ 57,519 $ 136,975 $ 52,544
Total Liabilities $ 2,163,084 $2,226,350 $2,286,841 $2,164,362
Stockholders' Equity $ 8,024,642 $5,572,892 $5,631,589 $3,779,398
</TABLE>
<PAGE>10
THE COMPANY
THERMOGENESIS CORP. designs and sells products and devices which utilize its
proprietary thermodynamic technology for the processing of biological substances
including the cryopreservation, thawing, harvesting and archiving of blood
components. Historically, THERMOGENESIS CORP.'s primary revenues have been from
sales of blood plasma freezers and thawers to hospitals, blood banks and blood
transfusion centers. Currently, THERMOGENESIS CORP. is manufacturing several
categories of thermodynamic devices which are being sold to the blood plasma
industry under FDA clearance to market in the United States. Other potential
markets for THERMOGENESIS CORP.'s proprietary technology include surgical,
pharmaceutical, and industrial applications. Since fiscal year 1988,
THERMOGENESIS CORP. focused its efforts on research and development and
refinement of a core line of products for blood banks. Since fiscal 1994,
THERMOGENESIS CORP. has developed new applications for its products and
technology, including a system for harvesting cryoprecipitated AHF from a
donor's blood plasma for use in the treatment of hemophilia, and by some
physicians as a hemostatic agent or tissue sealant in certain surgical and
medical procedures.
THERMOGENESIS CORP.'s strategy was to develop superior blood processing devices
for the niche blood processing markets where new products could quickly
establish credibility for THERMOGENESIS CORP.'s Proprietary Technology.
THERMOGENESIS CORP. believed that by concentrating its products to serve the
blood plasma industry, many customers, such as the Red Cross or other blood
transfusion societies of various countries, would validate THERMOGENESIS CORP.'s
Proprietary Technology for rapid freezing of biological substances, more
specifically blood plasma. Early products which were designed for blood banks
and hospitals, have received 510(k) permission to market, and THERMOGENESIS
CORP. sells either directly or through its distribution network in the 32
countries where its products are marketed. See "Annual Report on Form 10-K."
From 1988 to 1992 THERMOGENESIS CORP.'s products were designed to transfer heat
by causing heat transfer liquids to directly contact plastic sealed containers
within which resided various blood components. Early product designs used
liquids containing chloro-flouro-carbons ("CFC") which THERMOGENESIS CORP.
phased out in the fall of 1992. Thereafter, THERMOGENESIS CORP. developed an
alternative heat transfer method which automatically interposed a thin flexible
membrane between the heat transfer liquid and biological substances which
process allowed for use of non-CFC based heat transfer liquids.
Principal products initially developed by THERMOGENESIS CORP. and marketed to
hospitals, blood banks, and blood transfusion centers consisted of freezers and
thawers for blood plasma. THERMOGENESIS CORP. continued to design and develop
various freezer models and thawers for expanded applications, and these products
remain the core products of THERMOGENESIS CORP.'s current business. To expand
its market and product use, THERMOGENESIS CORP. changed the focus of its
research and development to the design of new products that would be applied to
different applications within the blood industry, including surgical,
pharmaceutical and medical procedures that utilize freezing and thawing
technology as part of standard procedures. See "Annual Report on Form 10-K."
<PAGE>11
Recent Financing and Other Recent Events
In November 1998, THERMOGENESIS CORP. experienced a short-term cash shortage and
borrowed $450,000 in the aggregate from lenders, including $200,000 in the
aggregate from three directors of THERMOGENESIS CORP. The loans bear interest of
10% per annum, are secured substantially by all of THERMOGENESIS CORP.'s assets
and mature on May 19, 1999. In addition, the lenders received warrants to
purchase 90,000 shares of common stock in the aggregate at $1.50 per share. In
connection with the Series A preferred stock private placement, $300,000 of the
debt was exchanged for 48,000 shares of Series A preferred stock. The remaining
$150,000 plus interest has been repaid.
On December 11, 1998, THERMOGENESIS CORP.'s shareholders approved an amendment
to its Certificate of Incorporation to effect a one-for-four reverse stock
split. The Board is currently determining the most appropriate time to implement
the reverse stock split.
On January 14, 1999, THERMOGENESIS CORP. completed a private placement of
1,077,540 shares of Series A Preferred Stock, raising an aggregate of
$6,734,625, before commissions and direct expenses. Commissions of 7% of the
gross proceeds and warrants to purchase 200,000 shares of common stock at $1.70
per share were issued to the placement agent. An initial closing for the
preferred stock was held on December 31, 1998, with gross proceeds of $5,100,000
having been received. The net proceeds from the private placement will be used
for clinical trials of the CryoSeal Autologous Fibrin Glue System and CryoFactor
Autologous Platelet Derived Growth Factor System through an independent clinical
research organization, repayment of short-term debt and working capital.
The value assigned to the beneficial conversion feature, as determined using the
quoted market price of the Company's common stock on the date the Series A
preferred stock was sold, amounted to $2,297,040 on December 30, 1998, and
$1,307,700 on January 14, 1999, which represents a discount to the value of the
Series A preferred stock.
SUMMARY OF THE OFFERING
THERMOGENESIS CORP. is registering 5,677,700 shares of common stock for resale
by the selling stockholders of which 5,387,700 may be issued upon the conversion
of Series A preferred stock and 290,000 shares may be issued upon the exercise
of warrants, including warrants to purchase 200,000 shares as placement agent
warrants.
USE OF PROCEEDS
THERMOGENESIS CORP. will receive no proceeds from the resale of the shares of
common stock upon the conversion of the Series A preferred stock and resale of
the shares of common stock upon the exercise of the warrants.
<PAGE>12
SELLING STOCKHOLDERS
The following table identifies the Selling Stockholders, as of February 5, 1999,
and indicates certain information known to THERMOGENESIS CORP. with respect to
(i) any material relationship between the selling stockholders and THERMOGENESIS
CORP. during the past three years, (ii) the number of shares of common stock
held by the selling stockholders, (iii) the amount to be offered for the selling
stockholders' account, and (iv) the number of shares and percentage of
outstanding shares of common stock to be owned by the selling stockholders after
the sale of the common stock offered by the selling stockholders. To the extent
required under the federal securities laws, this prospectus may be also used for
resale of common stock upon the conversion of the Series A preferred stock and
the exercise of the warrants. The selling stockholders are not obligated to sell
their common stock offered by this prospectus.
The table assumes that the selling stockholders have converted their Series A
preferred stock or exercised their warrants and will sell the common stock in a
secondary offering pursuant to this prospectus.
Under the Exchange Act, any person engaged in a distribution of the shares of
common stock of THERMOGENESIS CORP. offered by this prospectus may not
simultaneously engage in market making activities with respect to the common
stock of THERMOGENESIS CORP. during the applicable periods prior to the
commencement of such distribution. In addition, and without limiting the
foregoing, each selling stockholder may be subject to applicable provisions of
the Exchange Act and the rules and regulations thereunder including, without
limitation Regulation M. Further, the selling shareholders may resell their
shares pursuant to Rule 144.
The Series A preferred stock and warrants are not registered or listed for
trading on the Nasdaq Stock Market or on any exchange. With regard to the shares
of common stock offered by the selling stockholders for resale, such shares may
be sold on the Nasdaq Stock Market or in private transactions at prices to be
determined at the time of sale. Such shares may be offered through
broker-dealers, acting on the selling stockholders' behalf, who may offer the
shares at then current market prices. Any sales may be by block trade. The
selling stockholders and any brokers, dealers or others who participate with the
selling stockholders in the distribution of such shares of common stock may be
deemed to be "underwriters" within the meaning of the Securities Act, and any
commissions or fees received by such persons and any profit on the resale of
such shares purchased by such persons may be deemed to be underwriting
commissions or discounts under the Securities Act. Sales may be made by all
selling stockholders pursuant to the registration statement of which this
prospectus is a part.
<TABLE>
<S> <C> <C> <C> <C> <C>
Shares Beneficially Owned Shares to be Shares Beneficially
Prior to Offering Sold Owned After Offering
------------------ ---- ---------------------
Name of Shareholder Number Percentage Number Number Percentage
- ------------------- ----------- ---------- ------------- ------ ----------
The Kaufmann Fund, Inc. 3,760,000(2) 2,880,000(1)
Clarion Capital Corporation 240,000(1) 240,000(1)
Bradley Resources Company 210,000(3) 160,000(1)
</TABLE>
<PAGE>13
<TABLE>
<S> <C> <C> <C> <C>
Shares Beneficially Owned Shares to be Shares Beneficially
Prior to Offering Sold Owned After Offering
------------------------- ------------ ---------------------
Number Percentages Number Number Percentages
----------- ----------- --------- ------- -------------
Pequot Scout Fund, L.P. 400,000(1) 400,000(1)
Atlas II, L.P. 336,000(1) 336,000(1)
RJ Capital, L.P. 64,000(1) 64,000(1)
Philip H. Coelho TTEE Coelho Living Trust
Chief Executive Officer
3146 Gold Camp Drive 650,500(4) 60,000(5)
Rancho Cordova, CA 95670
New England Venture Partners 250,000(6) 250,000(6)
Carol Jacinto 8,000(1) 8,000(1)
Veron International Limited 1,150,000(7) 400,000(1)
Victor S. Lee 160,000(1) 160,000(1)
Hung Kwong International Ltd. 80,000(1) 80,000(1)
Choy Man Kin 40,000(1) 40,000(1)
BioTechnology Development Fund, LP 466,465(1) 66,465(1)
BioTechnology Development Fund III, LP 33,235(1) 33,235(1)
Hofung Holdings Limited 80,000(1) 80,000(1)
Judy Yee-Yong Ling 40,000(1) 40,000(1)
Xinjiang Commercial Managed Fund 40,000(1) 40,000(1)
Mark Sater TTEE Vigevano Retirement
Benefit Scheme 1992 20,000(1) 20,000(1)
Charles W. Chambers & Roberta Chambers
JT TEN 100,000(1) 100,000(1)
Hubert Huckel
Director
3146 Gold Camp Drive 50,000(8) 10,000(9)
Rancho Cordova, CA 95670
Patrick McEnany
Director
3146 Gold Camp Drive 115,829(10) 10,000(9)
Rancho Cordova, CA 95670
Oscar Gruss & Son 200,000(11) 200,000(11)
</TABLE>
<PAGE>14
Footnotes to Table
* Less than one percent.
(1) Represents the number of shares of common stock upon conversion of the
Series A preferred stock based on a conversion ratio of five shares of
common stock for each share of Series A preferred stock.
(2) Includes warrants to purchase 80,000 shares of common stock and
2,880,000 shares of common stock to be issued assuming the conversion of
576,000 shares of Series A preferred stock.
(3) Includes warrants to purchase 10,000 shares of common stock and 160,000
shares of common stock to be issued assuming the conversion of 32,000
shares of Series A preferred stock.
(4) Includes options to purchase 425,000 shares of common stock owned by Mr.
Coelho, warrants to purchase 20,000 shares of common stock, and 40,000
shares of common stock to be issued assuming the conversion of 8,000
shares of Series A preferred stock.
(5) Includes warrants to purchase 20,000 shares of common stock and 40,000
shares of common stock to be issued assuming the conversion of 8,000
shares of Series A preferred stock.
(6) Includes warrants to purchase 50,000 shares of common stock and 200,000
shares of common stock to be issued assuming the conversion of 40,000
shares of Series A preferred stock.
(7) Includes warrants to purchase 250,000 shares of common stock and 400,000
shares of common stock to be issued upon the conversion of 80,000 shares
of Series A preferred stock.
(8) Includes warrants to purchase 10,000 shares of common stock and options
to purchase 40,000 shares of common stock.
(9) Represents shares of common stock subject to resale upon the exercise
of warrants.
(10) Includes warrants to purchase 10,000 shares of common stock, and options
to purchase 40,000 shares of common stock. Also includes 25,829 shares
owned by Equisource Capital of which Mr. McEnany is the sole shareholder
and 2,500 owned by Mr. McEnany's spouse. Mr. McEnany disclaims
beneficial ownership of the shares owned by his spouse.
(11) Represents shares of common stock subject to resale upon the exercise of
a warrant issued to the Placement Agent.
DESCRIPTION OF SECURITIES
Our authorized capital stock consists of two classes which consists of
50,000,000 shares, $.001 par value, of common stock and 2,000,000 shares, $.001
par value, of preferred stock. As of February 5, 1999, 18,930,685 shares of
common stock were outstanding and 1,029,540 shares of Series A preferred stock
were outstanding. There are no other series of preferred stock outstanding.
<PAGE>15
Common Stock
Common stock shareholders have full voting rights, one vote for each share held
of record. Subject to preferential rights of Series A Preferred Stock
shareholders and any other preferred stock shareholder, common stock
shareholders are entitled to receive dividends as may be declared by the Board
out of funds legally available therefor, and share pro rata in any distributions
to stockholders upon liquidation. Common stock shareholders have no conversion,
preemptive or other subscription rights. All of the outstanding shares of common
stock are, and the shares offered hereby will be, validly issued, fully paid and
nonassessable.
<PAGE>16
Preferred Stock
As discussed below, we have one series of preferred stock designated. The Board
is authorized to establish, other series or designation of preferred stock with
rights, preferences, privileges, and restrictions on such stock as the Board may
determine.
Series A Convertible Redeemable Preferred Stock
We have designated 1,200,000 shares as Series A convertible redeemable preferred
stock. Each share of Series A preferred stock has the following characteristics:
Conversion. Each Series A preferred stock is convertible into five shares of
common stock at the option of holder or at THERMOGENESIS CORP.'s option provided
that the common stock is trading at an average price equal to or greater than
$5.00 per share for 30 consecutive trading days. Each Series A preferred stock
is subject to customary anti-dilution protection.
Voting Rights. Provided that more than 35% of the number of Series A preferred
stock shares sold in the private placement remain outstanding, the Series A
preferred stock shareholder will be entitled to vote for one director, as
separate class, and approval by holders of at least a majority of the Series A
preferred stock, voting together as a separate class, is required for certain
events including (i) any issuance of a new series of shares having rights,
preferences, or privileges with respect to liquidation preference, redemption or
dividend rights senior or equivalent to the Series A preferred stock, (ii) any
payment or declaration of any dividends rights or any other distribution or
redemption of any capital stock of THERMOGENESIS CORP., (iii) sale or
disposition of substantially all of THERMOGENESIS CORP.'s property or business
or any consolidation or merger with any entity in which THERMOGENESIS CORP. is
not the survivor, (iv) an amendment to THERMOGENESIS CORP.'s articles of
incorporation or bylaws, and (v) any investments of another business exceeding
$1 million in the aggregate. Unless required by law, the Series A preferred
stock shareholders will be entitled to vote on all other matters with the common
stock shareholders, together as a class, on an as converted basis.
Dividends. Each Series A preferred stock is entitled to receive non-cumulative
dividends at the same rate and same time as any dividends declared on
THERMOGENESIS CORP. common stock determined on an as converted basis.
Liquidation Rights. Upon liquidation, dissolution, or winding up of
THERMOGENESIS CORP., the holder of each Series A Preferred Stock shall be
entitled to received a liquidation preference equal to $6.25 per share which
shall increase at the rate of 8% per share, per year, compounded annually on
each anniversary date of the issuance of the Series A preferred stock before
there are any distributions to common stock shareholders. After payment to
Series A preferred stock of the liquidation preference as adjusted, the Series A
preferred stock shareholder shall not be entitled to any further distribution.
If upon any liquidation, dissolution or winding up, the assets to be distributed
among the Series A preferred stock shareholder shall be insufficient for full
payment of the liquidation preference, then the amount to be distributed shall
be distributed ratably to the Series A preferred stock shareholders and any
other preferred stock of equal rank.
<PAGE>17
Redemption. After five years, Series A preferred stock shareholders will have
the right to require THERMOGENESIS CORP. to repurchase from such holder each
Series A preferred stock for the liquidation preference as adjusted.
Preemptive Rights. Each Series A preferred stock shareholder shall have
preemptive rights to purchase any new issue by THERMOGENESIS CORP. in order to
maintain such ownership interest in THERMOGENESIS CORP.
Options
As of January 15, 1999, THERMOGENESIS CORP. had outstanding options to purchase
a total of 1,613,450 shares of common stock at exercise prices ranging from
$1.64 to $4.50 per share, of which options to purchase 1,240,193 were
exercisable. Some of these options are subject to vesting, and in general, have
a three or five year exercise period. See "Annual Report on Form 10-K -- Notes
to Financial Statements."
Warrants
As of January 15, 1999, warrants to purchase a total of 2,524,201 shares of
common stock were outstanding with exercise prices ranging from $2.40 to $3.885
per share, all of which were exercisable. Included in the number of warrants are
warrants to purchase 290,000 shares of common stock which are subject to resale
by this prospectus. See "Annual Report on Form 10-K -- Notes to Financial
Statements."
Registration Obligation
THERMOGENESIS CORP. has agreed to register for resale the shares of common stock
upon the conversion of the Series A preferred stock and the exercise of the
warrants. In the event the registration statement registering for resale the
shares of common stock is not declared effective within 120 days from January
14, 1999, which is the closing date of the private placement of the Series A
preferred stock, the aggregate number of shares of common stock issuable upon
the conversion of the Series A preferred stock shall be increased by 5% for each
additional 30 days the registration statement is not declared effective.
CERTIFICATE OF INCORPORATION AND BYLAWS
Our Amended and Restated Certificate of Incorporation provide that we will
indemnify directors and officers of THERMOGENESIS CORP. to the fullest extent
permitted by Delaware Law. Further, our bylaws provide authority for
THERMOGENESIS CORP. to maintain a liability insurance policy which insures
directors or officers against any liability incurred by them in serving
THERMOGENESIS CORP.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of THERMOGENESIS
CORP. pursuant to the foregoing provisions, or otherwise, THERMOGENESIS CORP.
has been advised that in the opinion of the Commission such
<PAGE>18
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by THERMOGENESIS CORP. of
expenses incurred or paid by a director, officer or controlling person of
THERMOGENESIS CORP. in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with
the securities being registered, THERMOGENESIS CORP. will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
final adjudication.
TRANSFER AGENT
The transfer agent for our common stock is American Securities Transfer & Trust,
Inc., 938 Quail Street, Suite 101, Lakewood, Colorado 80215-5513.
EXPERTS
The financial statements of THERMOGENESIS CORP. appearing in THERMOGENESIS
CORP.'s Annual Report (Form 10-K) for the year ended June 30, 1998, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon (which contain an explanatory paragraph describing conditions that raise
substantial doubt about the Company's ability to continue as a going concern as
described in Note 1 to the financial statements) included therein and
incorporated herein by reference. Such financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
LEGAL MATTERS
The validity of the shares of common stock offered by the selling stockholders
through this prospectus will be passed upon for us by David C. Adams, General
Counsel and Vice President of Business Development. Mr. Adams beneficially owned
options to acquire 120,000 shares of common stock as of February 5, 1999.
<PAGE>19
GLOSSARY OF CERTAIN TECHNICAL TERMS
510(k): formal notification to the Food and Drug Administration ("FDA") by
manufacturers of Class I or Class II devices to obtain clearance to market the
medical device. The device must be substantially equivalent to devices
manufactured prior to 1976.
AUTOLOGOUS: autogenous; related to self; originating within an organism itself,
as an autograft or autotransfusion.
CLASS II MEDICAL SYSTEM: those devices for which general controls alone are
insufficient to assure safety and effectiveness and for which mandatory
performance standards must be developed by the FDA.
COAGULATION: (1) the process of clot formation; (2) in surgery, the disruption
of tissue by physical means to form an amorphous residuum, as in
electrocoagulation and photocoagulation.
CORE LINE PRODUCTS: (1) device for the ultra-rapid cryopreservation of human
blood plasma; (2) portable device for the ultra-rapid cryopreservation of human
blood plasma; (3) device for the rapid thawing of frozen plasma for hospital
patient care; (4) device for the hermetic sealing of blood tissue containers;
(5) "smart" blood collection monitor; (6) Vial BioArchiveTM System for the
Japanese Red Cross.
CRYOPRECIPITATE: any precipitate that results from cooling, as cryoglobulin or
antihemophilic factor.
CRYOPRECIPITATED AHF: A preparation of antihemophilic factor, which is obtained
from a single unit of plasma collected and processed in a closed system.
CRYOPRESERVATION: the maintaining of the viability of excised tissue or organs
by storing at very low temperatures.
CRYOSEALTM: system for harvesting fibrinogen-rich cryoprecipitate from a donor's
blood plasma, a blood component that is currently licensed by the FDA for the
treatment of clotting protein deficient patients.
DEWAR: container which keeps its contents at a constant and generally low
temperature by means of two external walls between which a vacuum is maintained.
FACTOR VIII: antihemophilic factor (AHF): a relatively storage-labile factor
participating only in the intrinsic pathway of blood coagulation. Deficiency of
this factor, when transmitted as a sex-linked recessive trait, causes classical
hemophilia (hemophilia A). More than one molecular form of this factor has been
discovered. Called also antihemophilic globulin (AHG) and antihemophilic factor
A.
FACTOR XIII: fibrin stabilizing factor (FSF): a factor that polymerizes fibrin
monomers so that they become stable and insoluble in urea, thus enabling fibrin
to form a firm blood clot. Deficiency of this
<PAGE>20
factor produces a clinical hemorrhagic diathesis. Called also fibrinase and
Laki-Lorand factor (LLF). The inactive form is also known as protransglutaminase
and the active form as transglutaminase.
FIBRONECTIN: an adhesive glycoprotein: one form circulates in plasma, acting as
an opsonin; another is a cell-surface protein which mediates cellular adhesive
interactions. Fibronectins are important in connective tissue, where they
cross-link to collagen, and they are also involved in aggregation of platelets.
HEMATOLOGY: that branch of medical science which treats of the morphology of the
blood and blood forming tissues.
HEMOSTATIC: (1) checking the flow of blood; (2) an agent that arrests the flow
of blood.
MACULAR: pertaining to or characterized by the presence of macules; pertaining
to the macula retinae.
N2 BIOARCHIVE: system for controlled rate freezing, storage and retrieval and
inventory management of biological samples which require LN2 storage
temperatures, such as placental, stem and progenitor cells.
PIPELINE PRODUCTS: (1) CryoSealTM System, thermodynamic processor; (2) LN2
BioArchiveTM System, computerized LN2 dewar with robotic arm; (3) CryoFactorTM
System, thermodynamic processor; (4) MicroSealantTM System, bench top
thermodynamic processor; (5) CryoPlateletTM System, thermodynamic processor.
PLATELET DERIVED GROWTH FACTOR (PDGF): a substance contained in the alpha
granules of platelets and capable of inducing proliferation of vascular
endothelial cells, vascular smooth muscle cells, fibroblasts and glia cells; its
action contributes to the repair of damaged vascular walls.
PROGENITOR: a parent or ancestor.
THERMOLABILE: easily altered or decomposed by heat.
VON WILLEBRAND'S FACTOR: the attribute of Factor VIII necessary for the adhesion
of platelets to vascular elements. Deficiency of this factor results in the
prolonged bleeding time seen in von Willebrand's disease.
<PAGE>ii-1
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses payable by THERMOGENESIS
CORP. in connection with the issuance and distribution of the securities being
registered hereunder. No expenses shall be borne by the Selling Stockholders.
All of the amounts shown are estimates, except for the SEC Registration fee.
SEC registration fee $ 4,396.67
Printing and engraving expenses *$
Accounting fees and expenses *$
Legal fees and expenses *$ -0-
Transfer agent and registrar fees *$
Fees and expenses for qualification under
state securities laws $ -0-
Miscellaneous *$ -0-
---------
TOTAL $
=========
* estimated
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits indemnification of
directors, officers and employees of corporations under certain conditions and
subject to certain limitations. Article Eighth of THERMOGENESIS CORP.'s Amended
and Restated Certificate of Incorporation contain provisions for the
indemnification of its directors and officers to the fullest extent permitted by
law.
Under such law, THERMOGENESIS CORP. is empowered to 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 THERMOGENESIS CORP. to procure a judgment in its
favor) by reason of the fact that such person is or was an officer, director,
employee or other agent of THERMOGENESIS CORP. or its subsidiaries, against
expenses, judgments, 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 THERMOGENESIS CORP. and, in the case of a criminal proceeding, has
no reasonable cause to believe the conduct of such person was unlawful. In
addition, THERMOGENESIS CORP. may indemnify, subject to certain exceptions, 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 THERMOGENESIS
CORP. to procure a judgment in its favor by reason of the fact that such person
is or was an officer, director, employee or other agent of THERMOGENESIS CORP.
or its subsidiaries, 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
<PAGE>ii-2
faith and in a manner such person believed to be in the best interest of
THERMOGENESIS CORP. and its shareholders. THERMOGENESIS CORP. may advance
expenses incurred in defending any proceeding prior to final disposition upon
receipt of an undertaking by the agent to repay that amount it shall be
determined that the agent is not entitled to indemnification as authorized.
In addition, THERMOGENESIS CORP. has director's and officer's liability
insurance, which THERMOGENESIS CORP.'s bylaws provide authority to maintain to
insure directors or officers against any liability incurred capacity as such, or
arising out of their status as such.
Item 16. Exhibits and Financial Statement Schedules
<TABLE>
<S> <C> <C> <C>
Exhibit Description
3.1 (a) Amended and Restated Certificate of Incorporation (4)
(b) Revised Bylaws (4)
4.1 Certificate of Designation Series A Convertible Redeemable
Preferred Stock (12)
5.1 Opinion of David C. Adams, General Counsel to the registrant
10.1 (a) Letter of Agreement with Liquid Carbonic, Inc. (1)
(b) Letter of Agreement with Fujitetsumo USA (1)
(c) Letter of Agreement with Fujitetsumo Japan (1)
(d) License Agreement between Stryker Corp. and
THERMOGENESIS CORP., Corp. (5)
(e) Lease of Office and Mfg. Space (4)
(f) Executive Development and Distribution Agreement
between THERMOGENESIS CORP. and Daido Hoxan Inc. (3)
(g) Administrative Office Lease (6)
(h) Employment Agreement for Philip H. Coelho (8)
(i) Employment Agreement for Charles de B. Griffiths (8)
(j) Employment Agreement for Walter J. Ludt (8)
(k) Employment Agreement for David C. Adams (11)
(l) Employment Agreement for James H. Godsey (11)
(m) Employment Agreement for Sam Acosta (11)
(n) Licensing/Manufacturing Agreement with On-Time Mfg. (8)
(o) License Agreement and distribution with Asahi Medical (9)
(p) License Agreement with Pall/Medsep Corporation (10)
(q) Distribution Agreement with Dideco S.P.A. (13)
</TABLE>
23.1 Consent of General Counsel is contained in exhibit 5.1.
23.2 Consent of Ernst & Young LLP, independent auditors
27.1 Financial Data Schedule (Not Applicable)
<PAGE>ii-3
Footnotes to Index
(1) Incorporated by reference to Registration Statement No. 33-37242 of
THERMOGENESIS CORP., Corp. filed on February 7, 1991.
(2) Incorporated by reference to Form 8-K for July 19, 1993.
(3) Incorporated by reference to Form 8-K for June 9, 1995.
(4) Incorporated by reference to Form 10-KSB for the year ended June 30, 1994.
(5) Incorporated by reference to Form 8-K for September 27, 1995.
(6) Incorporated by reference to Form 10-QSB for the quarter ended December 31,
1995.
(7) Incorporated by reference to Form 8-K for November 27, 1996.
(8) Incorporated by reference to Form 10-KSB for the year ended June 30, 1996.
(9) Incorporated by reference to Form 8-K for May 29, 1996.
(10) Incorporated by reference to Form 8-K for March 27, 1997.
(11) Incorporated by reference to Form 10-K for the year ended June 30, 1997.
(12) Incorporated by reference to Form 8-K for January 14, 1998.
(13) Incorporated by reference to Form 8-K for February 16, 1998.
Item 17. Undertakings
(a) The undersigned Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section (10)(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii), above, do not
apply if the information required to be included in a post-effective
amendment by these paragraphs is contained in
<PAGE>ii-4
periodic reports filed with or furnished by the Registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference
in this Registration Statement.
(2) That, for the purpose 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 thereof.
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
THERMOGENESIS CORP. pursuant to the foregoing provisions, or otherwise,
THERMOGENESIS CORP. has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the Company will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
<PAGE>ii-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Rancho Cordova, County of Sacramento, State of California, on
February 8, 1999.
THERMOGENESIS CORP.
/s/ PHILIP H. COELHO
--------------------------------------
Philip H. Coelho, Chairman & C.E.O.
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints James H. Godsey or David C. Adams as his true and
lawful attorney-in-fact and agent, with full power of substitution and
re-substitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or any of them, or of his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
/s/PHILIP H. COELHO Dated: February 8,1999
- ------------------------------
Philip H. Coelho, C.E.O.
and Chairman of the Board
(Principal Executive Officer)
/s/ RENEE M. RUECKER Dated: February 8,1999
- ----------------------------------------
Renee M. Ruecker, Vice President Finance
(Principal Accounting Officer and
Principal Financial Officer)
/s/ JAMES H. GODSEY Dated: February 8,1999
- --------------------------------------------
James H. Godsey, President, C.O.O. Director
Dated:
Hubert E. Huckel, Director
/s/ PATRICK MCENANY Dated: February 8,1999
- ---------------------------
Patrick McEnany, Director
EXHIBIT 5.1.
February 8, 1999
Board of Directors
THERMOGENESIS CORP.
3146 Gold Camp Drive
Rancho Cordova, California 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 5,677,700 shares of the
Company's common stock (the "Shares") under the Securities Act of 1933, as
amended (the "Securities Act"), of which 290,000 of the Shares will be offered
to holders of the Company's warrants, and all of which will be sold by selling
stockholders of the Company as further described in the Company's registration
statement on Form S-3 filed under the Securities Act (the "Registration
Statement").
For the purpose of rendering this opinion, I examined originals or copies of
such documents as 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 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 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 and subject to 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 consideration set forth in
<PAGE>
the Prospectus, I am of the opinion that the Shares issued are, and the Shares
to be issued 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,
David C. Adams
General Counsel
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 5,677,700 shares of its common stock and to the
incorporation by reference therein of our report dated August 17, 1998, 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, 1998, filed with
the Securities and Exchange Commission.
Sacramento, California
February 5, 1999
