SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
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.)
2711 Citrus Road, Rancho Cordova, CA 95742
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(Address of Principal Executive Offices) (Zip Code)
Amended 2002 Independent Directors Equity Incentive Plan
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(Full title of the plan)
Philip H. Coelho, CEO
ThermoGenesis Corp.
2711 Citrus Road
Rancho Cordova, CA 95742
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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)
CALCULATION OF REGISTRATION FEE
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Title of each class of Proposed maximum Proposed maximum
securities to be Amount to be offering price per aggregate offering Amount of
registered registered share price registration fee
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Common Stock 100,000 $5.56 $556,000 $65.45
underlying Amended 2002
Independent Directors
Equity Incentive Plan
reserved for future
issuance
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Total $65.45
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(1) Calculated in accordance with Rule 457(c) of the Securities Act of 1933, as
amended ("Securities Act"). Estimated for the sole purpose of calculating
the registration fee and based upon the average of the high and low price
per share of the common stock of the Company on February 9, 2005, as
reported on the Nasdaq SmallCap Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Securities and Exchange Commission rules and regulations allow us to
"incorporate by reference" the information that we file with the Securities and
Exchange Commission. This means that we can disclose additional important
information to you by referring to those documents. The information incorporated
by reference is an important part of this Prospectus, and information that we
file in the future with the Securities and Exchange Commission will
automatically update and supersede this information. We have filed the following
documents with the Securities and Exchange Commission and the information
contained in those documents is incorporated by reference into this registration
statement:
(1) Registrant's Annual Report on Form 10-K for the fiscal year ended June
30, 2004;
(2) Registrant's Quarterly Reports on Form 10-Q for the quarters ended
September 30, 2004 and December 31, 2004;
(3) Registrant's Proxy Statement for the Annual Meeting held on December 13,
2004;
(4) Registrant's Current Reports on Form 8-K filed on November 10, 2004,
November 30, 2004, December 15, 2004 and February 9, 2005; and
(5) The Description of Securities in Item 1 of the Registration Statement on
Form 8A for registration of the Registrant's common stock pursuant to
Section 12(g) of the Exchange Act.
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 legality of the shares of common stock offered hereby will be passed
upon for the Company by Bartel Eng & Schroder, Sacramento, California.
Item 6. Indemnification of Directors and Officers.
The Company is incorporated in Delaware. Under Section 145 of the General
Corporation Law of the State of Delaware, a Delaware corporation has the power
to indemnify its directors, officers, employees and agents from 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 the fact such
person were or are directors, officers, employees or agents of the Company,
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 or her 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 General Corporate Law of the State
of Delaware provides that such person shall be indemnified against expenses
(including attorney's fees) reasonably and actually incurred. The Certificate of
Incorporation and the By-laws of the Company provide for indemnification of
directors and officers to the fullest extent permitted by the General
Corporation Law of the State of Delaware.
The General Corporation Law of the State of Delaware provides that a
certificate of incorporation may contain a provision eliminating the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for unlawful payment of dividends or stock
redemption, or (iv) for any transaction from which the director derived an
improper personal benefit. The Company's Certificate of Incorporation contains
such a provision.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description of Exhibit
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4.1 Amended 2002 Independent Directors Equity Incentive Plan(1)
5.1 Opinion of Bartel Eng & Schroder dated February 11, 2005
23.1 Consent of Bartel Eng & Schroder (contained in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Registered Public
Accounting Firm
(1) Incorporated by reference to the Company's current report on Form
8-K filed on December 15, 2004 (File No. 33-82900).
Item 9. Undertakings.
(a) 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:
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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 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.
* * * *
(h) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange 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 registrant of expenses incurred
or paid by a director, officer, or controlling person of the registrant 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 registrant 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 of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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.
THERMOGENESIS CORP.,
a Delaware corporation
Dated: February 11, 2005 By: /s/ Philip H. Coelho
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Philip H. Coelho,
Chief Executive Officer and
Chairman of the Board
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Dated: February 11, 2005 By: /s/ Philip H. Coelho
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Philip H. Coelho,
Chief Executive Officer and
Chairman of the Board
(Principal Executive Officer)
Dated: February 3, 2005 By: /s/ George Barry
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George Barry,
Director
Dated: February 11, 2005 By: /s/ Hubert Huckel
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Dr. Hubert Huckel
Director
Dated: February 11, 2005 By: /s/ Patrick McEnany
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Patrick McEnany,
Director
Dated: February 11, 2005 By: /s/ Kevin Simpson
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Kevin Simpson,
President, Chief Operating
Officer and Director
Dated: February 11, 2005 By: /s/ Renee Ruecker
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Renee Ruecker,
Chief Financial Officer
(Principal Accounting Officer)