-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, J8gxncN2hvu7x6KaXARMb2D+hkPvaufId7hLKCtnL75jIs32JG+N33eKo7d/OoKF zRVe1SR2O0UXgBLPSklLEg== 0000811212-97-000016.txt : 19970610 0000811212-97-000016.hdr.sgml : 19970610 ACCESSION NUMBER: 0000811212-97-000016 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970606 EFFECTIVENESS DATE: 19970606 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: THERMOGENESIS CORP CENTRAL INDEX KEY: 0000811212 STANDARD INDUSTRIAL CLASSIFICATION: LABORATORY APPARATUS & FURNITURE [3821] IRS NUMBER: 943018487 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-28653 FILM NUMBER: 97620248 BUSINESS ADDRESS: STREET 1: 3146 GOLD CAMP DRIVE CITY: RANCHO CORDOVA STATE: CA ZIP: 95670 BUSINESS PHONE: 9168585100 FORMER COMPANY: FORMER CONFORMED NAME: INSTA COOL INC OF NORTH AMERICA DATE OF NAME CHANGE: 19920703 S-8 1 As filed with the Securities and Exchange Commission on June 6, 1997 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) EMPLOYEE OPTION AGREEMENTS; THERMOGENESIS CORP. AMENDED 1994 STOCK OPTION PLAN (Full title of the plan) PHILIP H. COELHO, PRESIDENT AND 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) CALCULATION OF REGISTRATION FEE
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 Common Stock 450,000 $3.21875{(1)} $1,448,437.50 $438.92 underlying 1994 Stock Option Plan Common Stock 225,000 $2.3125{(2)} $ 520,312.00 $157.67 underlying stock options Common Stock 526,666 $2.32{(3)} $1,221,865.10 $370.26 underlying stock options $966.85
(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 June 5, 1997, as reported on the National Association of Securities Dealers Automated Quotations System. (2) Closing Price of the Shares as reported on the National Association of Securities Dealers Automated Quotations System on the date of Grant, April 2, 1997. (3) Closing Price of the Shares as reported on the National Association of Securities Dealers Automated Quotations System on the dates of Grant, December 31, 1993 and February 28, 1994, and adjusted for the 1 for 2 stock consolidation effective June 14, 1996. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. THERMOGENESIS CORP., a Delaware corporation ("Registrant"), by this reference hereby incorporates into this registration statement the following documents filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"): (1) Registrant's Annual Report on Form 10-KSB for the fiscal year ended June 30, 1996, Amendment to Annual Report on Form 10-KSB/A-1, filed on October 28, 1996, and Amendment to Annual Report on Form 10-KSB/A-2, filed on May 8, 1997; (2) Registrant's Quarterly Report on Form 10-Q for the quarterly period ended September 30, 1996; (3) Registrant's Quarterly Report on Form 10-Q for the quarterly period ended December 31, 1996, and amendment to that report on Form 10-Q/A filed on May 8, 1997; (4) Registrant's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 1997; (5) Registrant's Proxy Statement for the Annual Meeting held on May 29, 1997; (6) Registrant's Current Reports filed on Form 8-K for the event dated November 27, 1996 and March 27, 1997; and (7) 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 1994 Stock Option 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 June 6, 1997. 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 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 4.3* Amended 1994 Stock Option 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 May 29, 1997. 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 Exchange 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. 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 June 6, 1997. THERMOGENESIS CORP., a Delaware corporation By PHILIP H. COELHO President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated. Dated: June 6, 1997. By PHILIP H. COELHO President, Chief Executive Officer and Director (Principal Executive Officer) Dated: June 6, 1997. By CHARLES DE B. GRIFFITHS V.P., Secretary, and Director Dated: June 6, 1997. By PATRICK MCENANY Director Dated: June 6, 1997. By HUBERT HUCKEL Director Dated: June 6, 1997. By WALTER J. LUDT Chief Financial Officer and Director (Principal Accounting Officer and Principal Financial Officer) EX-5 2 June 6, 1997 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 1,201,666 shares of the Company's common stock (the "Shares") under the Securities Act of 1933, as amended (the "Securities Act"), which will be offered as follows: (i) 450,000 shares shall be offered under options pursuant to the Company's Amended 1994 Stock Option Plan (the "Plan"), and (ii) 751,666 shares will be issued to employees pursuant to Stock Option Agreements to which the Company is a party (the "Stock Agreements"), 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, David C. Adams General Counsel EX-23 3 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. Amended 1994 Stock Option Plan of our report dated September 17, 1996, with respect to the financial statements of THERMOGENESIS CORP. included in its Annual Report (Form 10- KSB/A-2) for the year ended June 30, 1996, filed with the Securities and Exchange Commission. Sacramento, California ERNST & YOUNG, LLP. June 2, 1997 -----END PRIVACY-ENHANCED MESSAGE-----