Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
THERMOGENESIS CORP.
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(Exact Name of registrant as specified in its charter)
Delaware 94-3018487
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3146 Gold Camp Drive, Rancho Cordova, California 95670
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(Address of Principal Executive Offices) (Zip Code)
THERMOGENESIS CORP. 1998 Employee Equity Incentive Plan
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(Full title of the plan)
Philip H. Coelho, CEO
THERMOGENESIS CORP.
3146 Gold Camp Drive
Rancho Cordova, California 95670
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(Name and address of agent for service)
(916) 858-5100
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(Telephone number, including area code, of agent for service)
<PAGE>2
<TABLE>
<S> <C> <C> <C> <C>
Calculation of Registration Fee
Proposed Proposed
Title of each class maximum offering maximum
of securities Amount price aggregate offering Amount of
to be registered to be registered per share price registration fee
- ------------------- ----------------- ---------------- ------------------- ------------------
Common Stock 1,000,000 $ 2.00 (1) $ 2,000,000 $528.00
underlying 1998
Employee Equity
Incentive Plan =======
$528.00
</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 March 16, 2000, as reported
on the National Association of Securities Dealers Automated Quotations
System.
<PAGE>3
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"):
Registration Statement on Form S-8, Registration No. 333-46911, filed February
27, 1998.
(1) Registrant's Quarterly Reports on Form 10-Q for the quarterly periods ended
September 30, 1999, December 31, 1999, and March 31, 2000;
(2) Registrant's Annual Report on Form 10-K and Form 10-K/A-1for the fiscal
year ended June 30, 1999;
(3) Registrant's Proxy Statement for the Annual Meeting held on December 10,
1999; and
(4) 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 amended 1998 Employee Equity Incentive Plan will be passed upon for the
Registration by David C. Adams of Bartel Eng Linn & Schroder. Mr. Adams
beneficially owned 24,474 shares of Common Stock and 90,000 options to acquire
shares of Common Stock as of March 1, 2000.
<PAGE>4
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 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 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.
Item 8. Exhibits.
Exhibit Number Description of Exhibit
5.1 Opinion of Bartel Eng Linn & Schroder dated May 16, 2000
23.1 Consent of Bartel Eng Linn & Schroder is contained in Exhibit 5.1.
23.2 Consent of Ernst & Young LLP, Independent Accountants
<PAGE>5
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.
<PAGE>6
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 Rancho Cordova, California, on May 17, 2000.
THERMOGENESIS CORP.,
a Delaware corporation
By: /s/ PHILIP H. COELHO
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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: May 17, 2000 By: /s/ PHILIP H. COELHO
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Philip H. Coelho,
Chief Executive Officer and Chairman of the
Board (Principal Executive Officer)
Dated: May 17, 2000 By: /s/ DAVID S. HOWELL
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David S. Howell, Director
Dated: May 17, 2000 By: /s/ PATRICK MCENANY
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Patrick McEnany, Director
Dated: May 17, 2000 By: /s/ HUBERT HUCKEL
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Hubert Huckel, Director
Dated: May 17, 2000 By: /s/ JAMES GODSEY
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James Godsey, President,
Chief Operating Officer and Director
Dated: May 17, 2000 By: /s/ RENEE RUECKER
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Renee Ruecker, Vice President of Finance
(Principal Accounting Officer and
Principal Financial Officer)
May 16, 2000
Board of Directors
Thermogenesis Corp.
3146 Gold Camp Drive
Rancho Cordova, CA 95670
Re: Common Stock of Thermogenesis Corp.
Dear Ladies and Gentlemen:
I have acted as General Counsel to Thermogenesis Corp., a Delaware
Corporation (the "Company"), in connection with the registration of an
additional 1,000,000 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 Amended 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
<PAGE>
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 non-assessable.
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,
BARTEL ENG LINN & SCHRODER
/s/ DAVID C. ADAMS
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David C. Adams
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the THERMOGENESIS CORP.1998 Employee Equity
Incentive Plan of our report dated August 13, 1999 with respect to the financial
statements and schedule of THERMOGENESIS CORP. included in its Annual Report
(Form 10-K and Form 10-K/A-1) for the year ended June 30, 1999, filed with the
Securities and Exchange Commission.
/S/ ERNST & YOUNG LLP
Sacramento, California
May 10, 2000
