Registration No. _________
As filed with the Securities and Exchange Commission on April 1, 2004
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 I.R.S. Employer Identification Number)
incorporation or organization)
2711 Citrus Road
Rancho Cordova, California 95742
(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.
2711 Citrus Road
Rancho Cordova, California 95742
(916) 858-5100
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies to:
David C. Adams, Esq.
Virginia W. Wei, Esq.
Bartel Eng & Schroder
1331 Garden Highway, Suite 300
Sacramento, CA 95833
(916) 442-0400
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. [ ]
CALCULATION OF REGISTRATION FEE
====================================== =============== ================= ================= ===============
Proposed Proposed
maximum maximum Amount of
Title of each class of securities to Amount to be offering price aggregate registration
be registered registered per share offering price fee(1)
====================================== =============== ================= ================= ===============
Common Stock 2,660,000 $4.135 $10,999,100.00 $1,393.59
-------------------------------------- --------------- ----------------- ----------------- ---------------
Total 2,660,000 $1,393.59
====================================== =============== ================= ================= ===============
(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 our common stock on March 26, 2004, as reported on the Nasdaq SmallCap
Market.
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 or until the registration statement shall become effective on
such date as the Securities and Exchange Commission (the "Commission"), acting
pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. Selling
stockholders may not sell these securities until the registration statement
filed with the Commission becomes effective. This prospectus is not an offer to
sell these securities and we are not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted or would be unlawful prior
to registration or qualification under the securities laws of any such state.
Subject to completion dated April 1, 2004 PROSPECTUS
2,660,000 shares
THERMOGENESIS CORP.
Common Stock
All of the shares of common stock of THERMOGENESIS CORP. offered are being
sold by the selling stockholders listed in this Prospectus. The common stock was
issued in a private placement completed in March 2004. We will not receive any
proceeds from the resale of any common stock by the selling stockholders.
Our common stock is traded and listed on the Nasdaq SmallCap Market, under
the symbol "KOOL." On March 26, 2004, the last reported sale price for the
common stock was $4.21.
Our principal executive offices are located at 2711 Citrus Road, Rancho
Cordova, California 95742. Our telephone number is (916) 858-5100.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" AT PAGE 2.
-------------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is April 1, 2004
Table of Contents
Part I Page
Prospectus Summary.........................................................1
Risk Factors...............................................................2
ThermoGenesis Corp.........................................................5
Summary of the Offering....................................................6
Use of Proceeds............................................................6
Plan of Distribution.......................................................6
Selling Stockholders.......................................................7
Indemnification of Directors and Officers.................................10
Transfer Agent............................................................10
Experts...................................................................10
Legal Matters.............................................................10
Where Can You Find More Information.......................................10
Glossary of Certain Technical Terms.......................................12
PROSPECTUS SUMMARY
Forward-Looking Statements
This Prospectus contains or incorporates "forward-looking statements,"
which include statements about our business strategy, our growth strategy, our
product development and marketing efforts and anticipated trends in our
business, which are not historical facts. We may also make additional
forward-looking statements from time to time in filings that we make with the
Commission. When we use words like "believe," "expect," "anticipate," "project,"
and similar expressions, this should alert you that the statement is
forward-looking. Forward-looking statements speak only as of the date made,
based largely on expectations. These expectations are generally subject to a
number of risks and uncertainties, some of which cannot be predicted or
quantified and which are beyond our control. Future events and actual results
may differ materially from the anticipated results expressed in, contemplated
by, or underlying our forward-looking statements. Statements in this Prospectus,
and in documents incorporated by reference into this Prospectus, including those
set forth in the caption "Risk Factors" describe factors, among others, that
could contribute to or cause differences. In light of these risks and
uncertainties, we cannot give any assurances that the forward-looking
information will in fact transpire or prove to be accurate in the future.
Our Business
We design, manufacture and distribute Food and Drug Administration ("FDA")
and ISO 9001 Compliant blood processing systems - CryoSeal(R) Fibrin Sealant
("FS") System and BioArchive(R) System and their companion products - that
enable the manufacture of cell therapy drugs from donor blood. These "enabling
technologies" are sold into two distinct markets: Blood Banks and Hospital/Wound
Care centers. Both the CryoSeal and BioArchive systems consist of an automated
blood processing device, and dedicated sterile single-use disposables that our
customers use to manufacture cell therapy and products sourced from single units
of blood. These products include hematopoietic stem cells from placental/cord
blood for bone marrow rescue transplants and blood derived proteins and wound
healing growth factors that provide surgeons with a means of arresting bleeding
and/or bonding excised tissue together thereby initiating cellular repair of the
excised tissues. These growth factors are also reported to accelerate the
healing of damaged bones and chronic dermal wounds.
Risk Factors
For a discussion of considerations relevant to an investment in our common
stock, see the section entitled "RISK FACTORS" beginning on page 2.
Use of Proceeds
We will not receive any proceeds from the resale of common shares by the
selling stockholders.
1
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 our common stock.
Prospective investors should also consider the following before making an
investment decision.
We have incurred net losses since our inception and expect losses to continue.
Except for net income of $11,246 for fiscal 1994, we have not been profitable
since our inception. For the fiscal year ended June 30, 2003, we had a net loss
of $5,603,000, and an accumulated deficit at June 30, 2003, of $54,713,000. For
the six months ended December 31, 2003, we had a net loss of $2,462,000 and an
accumulated deficit of $57,175,000. The report of independent auditors on our
June 30, 2003, financial statements includes an explanatory paragraph indicating
there is substantial doubt about our ability to continue as a going concern.
Although we are executing on our business plan to market launch new products,
continuing losses will impair our ability to fully meet our objectives for new
product sales.
We have limited testing data and must complete further testing successfully in
order to gain Food and Drug Administration approval required to market our
CryoSeal Fibrin Sealant System in the United States. We are conducting a pivotal
trial of our CryoSeal FS System in the United States. Although these studies
provide a basis to achieve regulatory permission to promote these systems for
some of the indications that management believes can be achieved, they do not
provide a basis to achieve all of the indications. Further clinical studies must
be performed. There can be no assurance that the clinical studies can be
successfully completed within our expected time frame and budget, or that our
products will prove effective in the required clinical trials. If we are unable
to conclude successfully the clinical trials of our products in development, our
business, financial condition and results of operations could be adversely
affected.
Our failure to develop new products will adversely affect our future growth.
Historically, substantially all of our sales have been from products related to
freezing, thawing and storing of blood plasma. Because we expect this segment of
the blood plasma market to have limited growth potential, new products for the
biotechnology market will have to be successfully developed and marketed for
future growth. Recently, the BioArchive product line has been a significant
contributor to our revenues. We are currently focused on increasing our
BioArchive product line revenues and marketing novel blood processing systems
such as the CryoSeal FS System for the automated production of autologous or
allogeneic blood components used as fibrin sealants. Although the CryoSeal
product uses technology related to our core competencies, it also represents a
departure from our former core blood plasma business. Further, though we have
had discussions with experts in areas of application for this product, it is
still in its development and/or initial market phase. No assurance can be given
that potential products can be successfully developed, and even if developed,
that a market will also develop for them.
Our business is heavily regulated, resulting in increased costs of operations
and delays in product sales. Most of our products require FDA approval to be
sold in the U.S. FDA user fees
2
for the review of applications will require clearance from comparable agencies
to sell our products in foreign countries. These clearances may limit the U.S.
or foreign markets in which our products may be sold or circumscribe
applications for U.S. or foreign markets in which our products may be sold. The
majority of our products related to freezing blood components are currently
exempt from the requirement to file a 510(k) pre-market application. These
products are currently marketed and sold worldwide. Further, our products must
be manufactured under principles of our quality system for continued CE Marking
that allows our products to be marketed and sold in Europe, which are similar to
the quality system regulations of both the FDA and California Department of
Health. Failure to comply with these quality system requirements and regulations
may subject us to delays in production if deficiencies are found by the FDA, the
State of California or European or other regulatory bodies during any audit of
our quality system. We cannot assure you that we will be found to be in
compliance; consequently, we could receive warning letters or even a temporarily
shut down of manufacturing while any non-conforming matters are rectified.
Influence by the government and insurance companies may adversely impact sales
of our products. Our business may be materially affected by continuing efforts
by government, third party payers such as Medicare, Medicaid and 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 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 efforts to contain healthcare costs may result
in reduced sales or price reductions for our products. To date, we are not aware
of any direct impact on our pricing or product sales due to such efforts by
governments to contain healthcare costs, and we do not anticipate any immediate
impact in the near future.
Our 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, trademark 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
could be required to modify the design of a product, obtain a license, or
litigate the issue, all of which could have an adverse business effect on us.
Failure to protect our trade secrets may assist our competitors. 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 our know-how, or independently
develop the same or similar technology. We prepare and file for patent
protection on aspects of our technology that we think will be integrated into
final products early in design phases, thereby limiting the potential risks.
3
Competition in our industry is intense and will likely involve companies with
greater resources than we have. We hope to develop a competitive advantage in
the medical applications of our products, but there are many competitors that
are substantially larger and who possess greater financial resources and
personnel than we have. Our current principal market is the users of ultra-rapid
blood plasma freezing and thawing equipment and cord blood banks. There are
companies that sell freezers to the blood plasma freezing industry that are
larger and possess greater financial and other resources than we do. The
CryoSeal System may face competition from major plasma fractionators that
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.
We have a limited marketing and sales force for new products that may delay our
goal of increased sales levels. We currently sell our existing medical devices
through a direct sales and marketing force and our foreign distribution network.
Although we have entered into exclusive distribution agreements for our two new
platform products, and we continue to seek strategic partners, there are no
assurances that the distributors will produce significant sales of the systems.
Our lack of production experience may delay producing our new products. We have
manufactured our blood plasma thawers and freezers that are less technologically
sophisticated products since our inception and the BioArchive System since 1998.
Although we have consolidated and redesigned our manufacturing facility to
accommodate the BioArchive System and the CryoSeal System, we do not have
significant experience in manufacturing the CryoSeal System or in the
manufacture of disposables. There can be no assurance that our current resources
and manufacturing facility could handle a significant increase in orders for
either the BioArchive System or the CryoSeal System. If we are unable to meet
demand for sales of the new systems, we would need to train additional personnel
or 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 us and our 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 our profitability.
Our new products are at initial market introduction, and we are not sure the
market will accept them. The market acceptance of our 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 our ability to adequately train technicians on
how to use the CryoSeal System. Even if our new product 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 our long term business, financial
condition and results of operation.
4
Failure to keep our key personnel may adversely affect our operations. Failure
to retain skilled personnel could hinder our operations. Our future success
partially depends upon the continued services of key technical and senior
management personnel. Our future success also depends on our continuing ability
to attract, retain and motivate highly qualified managerial and technical
personnel. The inability to retain or attract qualified personnel could have a
significant negative effect upon our efforts and thereby materially harm our
business and financial condition. We have entered into employment agreements
with each member of our senior management. Specifically, we are dependent upon
the experience and services of Philip H. Coelho, our Chairman and Chief
Executive Officer, and Kevin Simpson, our President and Chief Operating Officer.
We have obtained key man life insurance covering Mr. Coelho in the amount of
$2,000,000 to mitigate the risk.
Product liability and uninsured risks may adversely affect the continuing
operations. We may be liable if any of our products cause 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 that 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.
Dependence on suppliers for custom components may impact the production
schedule. We obtain certain custom components from a limited number of
suppliers. If a supplier raises the price of the component or discontinues
production, we may have to find another qualified supplier to provide the
component. In the event that it becomes necessary for us to find another
supplier, we would first be required to qualify the quality assurance systems
and product of those alternative suppliers. Any transfer between qualified
suppliers may impact the production schedule, thus delaying revenues, and could
cause the price of the key components to increase.
THERMOGENESIS CORP.
We design, manufacture and distribute micro-manufacturing systems
consisting of compact robotic devices or automated devices and companion sterile
single-use disposables that our customers use to produce products sourced from
single units of blood. These biological products include hematopoietic stem
cells for bone marrow rescue transplants and blood derived proteins to assist
surgeons in arresting bleeding or bonding tissues. We have completed two new
technology platforms (BioArchive System and the CryoSeal System), each of which
is designed to produce multiple biological products targeted at serious diseases
and surgical applications. We view these two technology platforms as
micro-manufacturing systems that utilize single use sterile disposable
containers to produce biological products composed of stem cells, proteins,
enzymes or growth factors with potential therapeutic applications for treatment
of serious human disease. Currently, we are manufacturing several categories of
thermodynamic devices that are being sold under FDA clearance to market in the
United States. We continue to sell Thermoline(TM) Plasma Freezers and Thawers.
Other potential markets for our proprietary technology include blood bank,
surgical, pharmaceutical and industrial applications.
5
Our strategy has been to develop superior blood processing devices for the
niche blood processing markets where new products could quickly establish
credibility for our proprietary technology. We believe that by concentrating our
products to serve the blood plasma industry, many customers could validate our
proprietary technology for rapid freezing of biological substances, in
particular, blood plasma. Early products, which received FDA 510(k) clearance to
market, are sold to blood banks and hospitals either directly or through our
distribution network. See our Annual Report on Form 10-K. - "Business."
Recent Financing
In March 2004, we completed a private placement of 2,660,000 shares of
common stock at a price per share of $4.00 per share, raising an aggregate of
$10,640,000 before placement agent fees of 6% of gross proceeds and expenses of
the offering. The net proceeds from the private placement will be used for
general working capital and implementation of operating plans. Under the terms
of the private placement, we are required to register for resale the shares of
common stock.
SUMMARY OF THE OFFERING
We are registering 2,660,000 shares of common stock for resale by the
selling stockholders.
USE OF PROCEEDS
We will receive no proceeds from the resale of the shares of common stock
by the selling stockholders.
PLAN OF DISTRIBUTION
We are registering the shares of common stock on behalf of the selling
stockholders. The shares of common stock may be sold in one or more transactions
at fixed prices, at prevailing market prices at the time of sale, at prices
related to the prevailing market prices, at varying prices determined at the
time of sale, or at negotiated prices. These sales may be effected at various
times in one or more of the following transactions, or in other kinds of
transactions:
o transactions on the Nasdaq SmallCap Market or any other securities
exchange or U.S. inter-dealer system of a registered national
securities association on which our common stock may be listed or
quoted at the time of sale;
o in the over-the-counter market;
o in private transactions and transactions otherwise than on these
exchanges or systems or in the over-the-counter market;
o in connection with short sales of the shares;
o by pledge to secure or in payment of debt and other obligations;
o through the writing of options, whether the options are listed on an
options exchange or otherwise;
6
o in connection with the writing of non-traded and exchange-traded call
options, in hedge transactions and in settlement of other transactions
in standardized or over-the-counter options; or
o through a combination of any of the above transactions.
The selling stockholders and their successors, including its transferees,
pledgees or donees or their successors, may sell the common stock directly to
purchasers or through underwriters, broker-dealers or agents, who may receive
compensation in the form of discounts, concessions or commissions from the
selling stockholder or the purchasers. These discounts, concessions or
commissions as to any particular underwriter, broker-dealer or agent may be in
excess of those customary in the types of transactions involved.
In addition, any securities covered by this prospectus which qualify for
sale pursuant to Rule 144 of the Securities Act may be sold under Rule 144
rather than pursuant to this prospectus.
We entered into a registration rights agreement for the benefit of the
selling stockholders to register our common stock under applicable federal and
state securities laws. The registration rights agreement provides for
cross-indemnification of the selling stockholders and us and our respective
directors, officers and controlling persons against specific liabilities in
connection with the offer and sale of the common stock, including liabilities
under the Securities Act. We will pay substantially all of the expenses incident
to the offering and sale of the common stock.
SELLING STOCKHOLDERS
The following table identifies the selling stockholders, as of March 26,
2004, and indicates certain information known to us with respect to (i) the
number of shares of common stock held by the selling stockholders, (ii) the
amount to be offered for the selling stockholders' account, and (iii) 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. The selling stockholders are not obligated to sell their
common stock offered by this Prospectus.
The number of shares listed under "Shares to be Sold" in the table assumes
that the selling stockholders will sell all their shares of common stock in a
secondary offering pursuant to this Prospectus.
Under the Securities Exchange Act of 1934, as amended (the "Exchange Act")
any person engaged in a distribution of our common stock offered by this
Prospectus may not also engage in market making activities with respect to our
common stock during the applicable periods prior to the commencement of such
distribution. In addition, each selling stockholder may be subject to applicable
provisions of the Exchange Act and the rules and regulations thereunder
including Regulation M. Moreover, the selling stockholders may resell their
shares pursuant to Rule 144.
7
Shares Owned Shares to be Shares Owned
prior to Sold after Offering
Offering(1)
------------- ------------ -----------------------
Name of Stockholder Number Number Number Percentage
------------------- ------ ------ ------ ----------
Federated Kaufmann Fund, a portfolio of Federated 723,220 723,220 0 -
Equity Funds (2)
Deephaven Small Cap Growth Fund LLC 600,000 600,000 0 -
SR Capital Partners, L.P. 76,550 47,600 28,950 *
SR Capital Offshore LTD 327,080 202,300 124,780 *
Quantitative Capital Management LTD 17,100 10,100 7,000 *
Caxton International Limited 314,120 114,989 199,131 *
Caxton Equity Growth (BVI) Ltd. 164,083 56,867 107,216 *
Caxton Equity Growth LLC 48,197 18,144 30,053 *
Pentagram Partners, L.P. 1,324,425 190,000 1,134,425 2.5%
Stephen Albright Springer 303,500 145,000 158,500 *
Charles Schwab & Co., Inc. cust. IRA Rollover
Winslow Green Growth Fund 496,000 96,000 400,000 *
Federated Small-cap Fund, a portfolio of Federated 84,376 84,376 0 -
Equity Funds (3)
Abernathy Aggressive Appreciation, LP 145,500 32,500 113,000 *
Abernathy Preferred Performance LP 15,000 10,000 5,000 *
Abernathy Capital Preservation Fund LP 10,000 10,000 0 -
Stearns Family Ltd Partnership 10,000 10,000 0 -
Benchmark Partners, L.P. 112,500 57,500 55,000 *
American Skandia Trust, Federated Aggressive Growth (4) 56,652 56,652 0 -
Agger Institutional Fund, LP 93,912 33,300 60,612 *
Agger Fund, LP 14,588 5,200 9,388 *
Cadmus Capital Partners (QP), LP 108,038 29,838 78,200 *
Cadmus Capital Fund Ltd. 242,014 66,414 175,600 *
Clarion Offshore Fund, Ltd. 223,350 15,000 208,350 (5) *
Clarion Partners, LP 229,750 15,000 214,750 (6) *
Clarion Capital Corporation 442,529 30,000 412,529 (7) *
* Represents less than one percent.
(1) Ownership includes options and warrants exercisable within 60 days of March
22, 2004.
(2) Federated Kaufmann Fund ("FKF") is a portfolio of Federated Equity Funds, a
registered investment company. FKF's advisor is Federated Investment
Management Company ("FIMC") which has delegated daily management of the
fund's assets to Federated Global Investment Management Corp. ("FGIMC"), as
subadvisor. While the officers and directors of FIMC have dispositive power
over FKF's portfolio securities, they customarily delegate this dispositive
power, and therefore the day to day dispositive decisions are made by the
portfolio managers of FKF, currently, Lawrence Auriana and Hans P. Utsch.
Messrs. Auriana and Utsch disclaim any beneficial ownership of the shares.
With respect to voting power, FKF has delegated the authority to vote
proxies to FIMC. FIMC has established a Proxy Voting Committee to cast
proxy votes on behalf FKF in accordance with proxy voting policies and
procedures approved by FKF.
8
(3) Federated Small-Cap Fund ("FSKMF") is a portfolio of Federated Equity
Funds, a registered investment company. FSKMF's advisor is Federated
Investment Management Company ("FIMC") which has delegated daily management
of the fund's assets to Federated Global Investment Management Corp.
("FGIMC"), as subadvisor. While the officers and directors of FIMC have
dispositive power over FKSMF's portfolio securities, they customarily
delegate this dispositive power, and therefore the day to day dispositive
decisions are made by the portfolio managers of FKSMF, currently, Lawrence
Auriana and Hans P. Utsch. Messrs. Auriana and Utsch disclaim any
beneficial ownership of the shares. With respect to voting power, FKSMF has
delegated the authority to vote proxies to FIMC. FIMC has established a
Proxy Voting Committee to cast proxy votes on behalf of FKSMF in accordance
with proxy voting policies and procedure approved by FKSMF.
(4) American Skandia Trust, Federated Aggressive Growth ("AST") a registered
investment company. AST's advisors are American Skandia Investment Services
Incorporated and Prudential Investments, LLC (the "Advisors") which have
delegated daily management of the fund's assets to Federated Investment
Counseling ("FIC"), as subadvisor. FIC has delegated daily management of
the fund's assets to Federated Global Investment Management Corp.
("FGIMC"), as sub-subadvisor. While the officers and directors of the
Advisors have dispositive power over AST's portfolio securities, they
customarily delegate this dispositive power, and therefore the day to day
dispositive decisions are made by the portfolio managers of AST,
currrently, Lawrence Auriana, Hans P. Utsch and Aash Shah. Messrs. Auriana,
Utsch, and Shah disclaim any beneficial ownership of the shares. With
respect to voting power, AST has delegated the authority to vote proxies to
FIC and FIC has delegated such authority to FGIMC. FIC and FGIMC have
established a combined Proxy Voting Committee to cast proxy votes on behalf
of AST.
(5) Includes 36,800 shares issuable upon the exercise of warrants.
(6) Includes 43,200 shares issuable upon the exercise of warrants.
(7) Includes 31,068 shares issuable upon the exercise of warrants and 110,000
shares issuable upon the conversion of 22,000 shares of Series A
Convertible Preferred Stock.
Relationship with Selling Stockholders
None of the selling stockholders has had any material relationship with us
within the past three years.
9
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Amended and Restated Certificate of Incorporation provides that we will
indemnify our directors and officers to the fullest extent permitted by the laws
of the state of Delaware. Further, our bylaws provide authority for us to
maintain a liability insurance policy that insures our directors or officers
against any liability incurred by them for service to us.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted for our directors, officers and controlling persons pursuant to
the foregoing provisions, or otherwise, we have been advised that in the opinion
of the Commission such 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 us of
expenses incurred or paid by a director, officer, or controlling person of our
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, unless in the opinion of our counsel, the matter
has been settled by controlling precedent, we will submit to a court of
appropriate jurisdiction the question of whether such indemnification is against
public policy as expressed in the Securities Act and will be governed by final
adjudication.
TRANSFER AGENT
The transfer agent for our common stock is Computershare Trust Company,
Inc., 350 Indiana Street, Suite 800, Golden, Colorado 80401.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our financial
statements and schedule included in our Annual Report on Form 10-K for the year
ended June 30, 2003, as set forth in its report (which contains an explanatory
paragraph describing conditions that raise substantial doubt about our ability
to continue as a going concern as described in Note 1 to the financial
statements), which is incorporated by reference in this Prospectus and elsewhere
in the registration statement. Our financial statements and schedule are
incorporated by reference in reliance on Ernst & Young LLP's report, given on
its authority 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 Bartel Eng &
Schroder.
WHERE CAN YOU FIND MORE INFORMATION
Government Filings. We file annual, quarterly and special reports and other
information with the Commission. You may read and copy any document that we file
at the Commission's Public Reference Room at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549. Please
10
call the Commission at 1-800-SEC-0330 for more information about the Public
Reference Room. Most of our filings are also available to you free of charge at
the Commission's website at http://www.sec.gov.
Stock Market. Our common stock is listed on the Nasdaq SmallCap Market and
similar information can be inspected and copied at the offices of the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
Registration Statement. We have filed a registration statement pursuant to
the Securities Act, with the Commission with respect to the common stock offered
under this Prospectus, and this Prospectus is a part of that registration
statement. However, it does not contain all of the information contained in the
registration statement and the exhibits filed with the registration statement.
You should refer to the registration statement and its exhibits for further
information about us and the common stock offered under this Prospectus.
Description of Common Stock. We have 50,000,000 shares of common stock,
$0.001 par value. In addition to the summary of our common stock that follows,
we encourage you to review our articles of incorporation and bylaws, which we
have filed with the SEC. Each share of common stock shall be entitled to one (1)
vote on all matters submitted for stockholder approval. Holders of common stock
have no preemptive rights. Subject to the applicable laws and the rights of the
holders of the preferred stock, holders of common stock are entitled to such
dividends as may be declared by our board of directors. The common stock is not
entitled to any sinking fund, redemption or conversion provisions. Upon our
dissolution, liquidation or winding up, the holders of our common stock are
entitled to share ratably in our net assets remaining after the payment of all
creditors and liquidation preferences of preferred stock. The outstanding shares
of common are duly authorized, validly issued, fully paid and nonassessable.
Information Incorporated by Reference. The Commission rules and regulations
allow us to "incorporate by reference" the information that we file with it.
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 Commission will automatically update and supersede this information. We
have filed the following documents with the Commission and the information
contained in those documents is incorporated by reference into this Prospectus:
(1) Annual Report on Form 10-K for the year ended June 30, 2003;
(2) Quarterly Reports on Form 10-Q for the quarters ended September 30,
2003 and December 31, 2003;
(3) Proxy Statement for the Annual Meeting of Stockholders held on
December 15, 2003; and
(4) Current Report on Form 8-K for events dated September 2, 2003,
September 24, 2003, February 13, 2004 and March 10, 2004.
11
Please note that all other documents and reports filed under Sections
13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934, as
amended, following the date of this Prospectus and prior to the termination of
this offering will be deemed to be incorporated by reference into this
Prospectus and will be made a part of it from the date of filing with the
Commission.
ThermoGenesis Corp. Filings made with the Commission and other information
about us can be found on our website at www.thermogenesis.com. We will provide
to each person, including any beneficial owner, who is delivered a prospectus, a
copy of any of the documents that are incorporated by reference free of charge.
Send requests to Renee M. Ruecker, Chief Financial Officer, ThermoGenesis Corp.,
2711 Citrus Road, Rancho Cordova, California 95742 or call (916) 858-5100.
GLOSSARY OF CERTAIN TECHNICAL TERMS
510(k): formal notification to the Food and Drug Administration ("FDA") by
manufacturers of Class I devices to obtain clearance to market the medical
device. The device must be substantially equivalent to devices manufactured
prior to 1976.
ALLOGENEIC: involving, derived from, or being from genetically different
individuals of the same species, as obtaining blood from a single donor's plasma
for use in a patient.
AUTOLOGOUS: autogenous; related to self; originating within an organism itself,
as obtaining blood from the patient for use in the same patient.
CRYOPRECIPITATE: any precipitate (substance that is separated out of a solution
of plasma) that results from cooling, as cryoglobulin or antihemophilic factor.
CRYOPRESERVATION: maintaining the life of excised tissue or organs by freezing
and storing at very low temperatures.
CRYOSEAL: 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.
FIBRINOGEN: a blood protein that is converted to fibrin in the clotting of
blood.
STEM CELLS: Undifferentiated, primitive cells in the bone marrow with the
ability both to multiply and to differentiate into specific blood cells.
12
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 us 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 $ 1,394
-----------------
Printing and engraving expenses $ 0
-----------------
Accounting fees and expenses *$ 15,000
-----------------
Legal fees and expenses *$ 55,000
-----------------
Transfer agent and registrar fees *$ 1,000
-----------------
Fees and expenses for qualification under state
securities laws $ 1,155
-----------------
Engineering fees $ 0
-----------------
Federal taxes $ 0
-----------------
State taxes $ 0
-----------------
Miscellaneous $
-----------------
TOTAL *$ 73,549
-----------------
* 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. Our Amended and Restated Certificate of
Incorporation contains provisions for the indemnification of our directors and
officers to the fullest extent permitted by law.
Under such law, we are 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 our company 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 us, 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 our best interests and, in the case of a criminal proceeding, has no
reasonable cause to believe the conduct of such person was unlawful. In
addition, we may indemnify, subject to certain exceptions, any person who was or
13
is a party or is threatened to be made a party to any threatened, pending or
completed action by or in the right of our company to procure a judgment in our
favor by reason of the fact that such person is or was an officer, director,
employee or other agent of our company, 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 faith and in a manner such person believed
to be in the best interest of our company and stockholders. We 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, we have directors' and officers' liability insurance, which
our bylaws provide authority to maintain to insure directors or officers against
any liability incurred while in capacity as such, or arising out of their status
as such.
Item 16. Exhibits and Financial Statement Schedules
3.1 (a) Amended and Restated Certificate of Incorporation (1)
(b) Revised Bylaws (2)
4.1 Certificate of Designation of Series A Convertible Redeemable Preferred
Stock (3)
4.2 Certificate of Designation of Series B Convertible Preferred Stock (4)
4.3 Warrant (form) (5)
4.4 Warrant (form) (6)
5.1 Opinion of Bartel Eng & Schroder
10.1(a) License Agreement between Stryker Corp. and ThermoGenesis Corp. (7)
(b) License Agreement with Pall/Medsep Corporation (8)
(c) Distribution Agreement with Dideco S.p.A. (9)
(d) Employment Agreement for Philip H. Coelho (10)
(e) Employment Agreement for Renee Ruecker (11)
(f) Employment Agreement for Dan Segal (12)
(g) Employment Agreement for Kevin Simpson (13)
(h) Securities Purchase Agreement dated March 10, 2004 (form) (14)
23.1 Consent of Bartel, Eng & Schroder (contained in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
Footnotes to Exhibit Index
(1) Incorporated by reference from Form 10-K for the year ended June 30, 1999.
(2) Incorporated by reference from Form 10-KSB for the year ended June 30, 1994.
(3) Incorporated by reference from Form 8-K dated January 14, 1999.
(4) Incorporated by reference from Form 8-K dated December 23, 1999.
(5) Incorporated by reference from Form 10-K for the year ended March 31, 2001.
(6) Incorporated by reference from Form 8-K dated April 5, 2002.
(7) Incorporated by reference from Form 8-K dated September 27, 1995.
(8) Incorporated by reference from Form 8-K dated March 27, 1997.
(9) Incorporated by reference from Form 8-K dated February 16, 1998.
(10)Incorporated by reference from Form 10-K for the year ended June 30, 2002.
14
(11) Incorporated by reference from Form 10-Q for the quarter ended March 31,
2003.
(12) Incorporated by reference from Form 10-K for the year ended June 30, 2000.
(13) Incorporated by reference from Form 10-Q for the quarter ended December 31,
2002.
(14) Incorporated by reference from Form 8-K dated March 10, 2004.
Item 17. 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:
(i) To include any prospectus required by Section (10)(a)(3) of the
Securities Act of 1933;
(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 the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) (ss.230.424(b) of
this chapter) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 the
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 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 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.
15
(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 of 1934 Act that is incorporated by reference in the
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.
* * * * *
(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 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.
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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 Form S-3 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 March 30, 2004.
THERMOGENESIS CORP.
/s/ Philip H. Coelho
------------------------------------
Philip H. Coelho,
Chairman and Chief Executive Officer
(Principal Executive Officer)
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: April 1, 2004
--------------------------------
Philip H. Coelho,
Chairman and Chief Executive Officer
(Principal Executive Officer)
/s/ Renee M. Ruecker Dated: April 1, 2004
--------------------------------
Renee M. Ruecker, Chief Financial Officer
(Principal Accounting Officer and
Principal Financial Officer)
/s/ Kevin Simpson Dated: April 1, 2004
--------------------------------
Kevin Simpson, President,
Chief Operating Officer and Director
/s/ Hubert E. Huckel Dated: April 1, 2004
--------------------------------
Hubert E. Huckel, Director
/s/ Patrick McEnany Dated: March 26, 2004
--------------------------------
Patrick McEnany, Director
/s/ George Barry Dated: March 29, 2004
--------------------------------
George Barry, Director
17