As filed with the Securities and Exchange Commission on November 21, 2005
Registration No._________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
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.)
2711 Citrus Road
Rancho Cordova, CA 95742
(916) 858-5100
(Address and telephone number of principal executive offices)
Philip H. Coelho
Chief Executive Officer
2711 Citrus Road
Rancho Cordova, CA 95742
(916) 858-5100
(Name, address and telephone number of agent for service)
Copies to:
David C. Adams, Esq.
Mark Lee, Esq.
Bullivant/Houser/Bailey P.C.
1331 Garden Highway, Suite 300
Sacramento, California 95833
Telephone: (916) 442-0400
Approximate date of commencement of the proposed sale to the public: 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
maximum Proposed maximum
Title of each class of securities to Amount to be offering price aggregate Amount of
be registered registered(1)(3) per share(2) offering price(2) registration fee
========================================= ================= ================ =================== ===================
========================================= ================= ================ =================== ===================
Common Stock, $0.001 par value $75,000,000 - $75,000,000 $8,827.50
========================================= ================= ================ =================== ===================
(1) There are being registered an indeterminate number of shares of common stock
of the Registrant as shall have an aggregate offering price not to exceed
$75,000,000. The proposed maximum offering price per share shall be determined
from time to time by the Registrant in connection with the issuance of any
securities under the registration statement. Also includes additional shares of
common stock that may be issued as a result of stock splits, stock dividends or
similar transactions.
(2) Calculated in accordance with Rule 457(o) of the Securities Act of 1933, as
amended ("Securities Act").
(3) Includes such indeterminate number of shares of common stock as may from
time to time be issued at indeterminate prices, subject to the aggregate
threshold dollar amount registered.
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. The
Company may not sell these securities until the registration statement filed
with the Commission becomes effective, and only then pursuant to a prospectus
supplement. 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 NOVEMBER 21, 2005.
PROSPECTUS
$75,000,000
THERMOGENESIS CORP.
Common Stock
--------------------------
By this prospectus, we may offer a number of shares of our common stock up
to an aggregate of $75,000,000 in one or more transactions. We will provide
specific terms for any sale of common stock in supplements to this prospectus.
You should read this prospectus and any prospectus supplement, as well as the
documents incorporated or deemed to be incorporated by reference in this
prospectus, carefully before you invest. This prospectus may not be used to
offer and sell the shares of common stock unless accompanied by a prospectus
supplement.
Our common stock is traded and listed on the NASDAQ SmallCap Market, under
the symbol "KOOL." On November 18, 2005, the last reported sale price for the
common stock was $5.01 per share.
-------------------------------
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.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS
ACCOMPANIED BY THE APPLICABLE PROSPECTUS SUPPLEMENT.
The date of this Prospectus is _______________, 2005
Table of Contents
Page
Prospectus Summary.............................................................1
Our Business...................................................................3
Risk Factors...................................................................3
Use of Proceeds................................................................3
Business Description...........................................................4
Description of Common Stock....................................................9
Plan of Distribution..........................................................10
Indemnification of Directors and Officers.....................................10
Experts.......................................................................11
Legal Matters.................................................................11
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.
Summary
This summary highlights selected information from this prospectus and does
not contain all of the information that is important to you. To understand the
terms of any offering you should read carefully this prospectus and the
prospectus supplement, as well as our periodic reports filed with the Securities
and Exchange Commission that contain more detailed disclosure about our business
and financial performance.
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About this Prospectus
This prospectus is part of a registration statement on Form S-3 that we filed
with the Securities and Exchange Commission ("SEC") utilizing a "shelf"
registration process. Under this shelf registration process, we may sell shares
of our common stock up to an aggregate of $75,000,000 in one or more offerings.
This prospectus provides you with a general description of the shares of common
stock we may offer. Each time we sell shares of common stock we will provide a
prospectus supplement that will contain specific information about the terms of
that offer and sale. The prospectus supplement may add, update or change
information contained in this prospectus. This prospectus, together with
applicable prospectus supplements, includes all material information relating to
this offering. Please carefully read both this prospectus and any prospectus
supplement together with any additional information described below under "Where
You Can Find More Information." THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A
SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
Where You Can 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 Securities and Exchange Commission's Public Reference Room at 100 F.
Street, N.E., Room 1580, Washington, D.C. 20549. Please call the Commission at
1-202-551-8090 for more information about the Public Reference Room. Most of our
filings are also available to you free of charge at the Securities and Exchange
Commission's website at http://www.sec.gov.
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:
o Our Annual Report on Form 10-K for the fiscal year ended June 30, 2005,
filed on September 12, 2005;
o Our Quarterly Report on Form 10-Q for the quarter ended September 30, 2005,
filed on November 9, 2005;
o Our Current Reports on Form 8-K filed on November 10, 2005;
o Our Current Report on Form 8-K filed on October 18, 2005;
o Our Proxy Statement on Schedule 14A filed on September 12, 2005;
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o Our Proxy Statement on Schedule 14A filed on October 31, 2005.
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.
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 Matthew Plavan, Assistant Corporate Secretary, ThermoGenesis Corp., 2711
Citrus Road, Rancho Cordova, CA 95742 or call (916) 858-5100.
Our Business
We are a leader in developing and manufacturing automated blood processing
systems and disposables that enable the manufacture, preservation and delivery
of personalized cell and tissue therapy products, or CTT products, for clinical
use. Personalized CTT products are created from the blood or tissue of a single
donor and administered to that donor or a matched patient. Our systems and
disposables are intended for use by hospitals and blood banks in two distinct
markets. In cell therapy, our products automate the isolation, capture and
preservation of stem cells residing in the blood of the placenta and umbilical
cord, or cord blood, after a baby is born. These cells are used to treat
patients for leukemia, lymphoma and over 60 other life threatening genetic
diseases. Cord blood stem cells typically result in reduced immune complications
post transplant compared to adult bone marrow stem cells. In tissue therapy, our
products are used for the rapid manufacture of autologous sealants or thrombin
for surgical wound care. Autologous sealants have no risk of contamination by
blood-borne pathogens from other donors. We believe that our significant
experience and technical expertise in developing proprietary technologies for
enabling personalized CTT products, coupled with our relationships with leading
transplant physicians, stem cell researchers and surgeons, has enabled us to
develop safer, more effective systems for these applications.
Our principal executive offices are located at 2711 Citrus Road, Rancho
Cordova, California 95742. Our telephone number is (916) 858-5100.
RISK FACTORS
Investment in our common stock involves risk. You should carefully consider
the risks we describe in our reports filed with the Securities and Exchange
Commission (SEC) from time to time which are incorporated by reference herein,
and those that may be set forth in any prospectus supplement, before deciding to
invest.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we
expect to use the net proceeds from the sale of our common stock for working
capital, to fund our future growth plans, and for other general corporate
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purposes and capital expenditures related to our growth. We may also use a
portion of the net proceeds to acquire or invest in businesses, products or
technologies that complement our existing business. From time to time, we engage
in preliminary discussions and negotiations with various businesses in order to
explore the possibility of strategic partnering or investment.
DESCRIPTION OF OUR BUSINESS
BUSINESS OVERVIEW
We are a leader in developing and manufacturing automated blood processing
systems and disposables that enable the manufacture, preservation and delivery
of personalized cell and tissue therapy products, or CTT products, for clinical
use. Personalized CTT products are created from the blood or tissue of a single
donor and administered to that donor or a matched patient. Our systems and
disposables are intended for use by hospitals and blood banks in two distinct
markets. In cell therapy, our products automate the isolation, capture and
preservation of stem cells residing in the blood of the placenta and umbilical
cord, or cord blood, after a baby is born. These cells are used to treat
patients for leukemia, lymphoma and over 60 other life threatening genetic
diseases. Cord blood stem cells typically result in reduced immune complications
post transplant compared to adult bone marrow stem cells. In tissue therapy, our
products are used for the rapid manufacture of autologous sealants or thrombin
for surgical wound care. Autologous sealants have no risk of contamination by
blood-borne pathogens from other donors. We believe that our significant
experience and technical expertise in developing proprietary technologies for
enabling personalized CTT products, coupled with our relationships with leading
transplant physicians, stem cell researchers and surgeons, has enabled us to
develop safer, more effective systems for these applications.
In recent years, our revenue primarily has been generated from the sale of
our BioArchive System and related disposables. However, we currently are
developing and commercializing new automated systems that enable the manufacture
of personalized CTT products. Our products and products in development are
described below.
o The BioArchive System is an automated cryogenic system used in cell
therapy to cryopreserve and archive cord blood stem cells for future
transplant. We have sold 117 BioArchive Systems to date to major cord
blood banks and stem cell research institutes in 26 countries. We have
recently signed a global distribution agreement with GE Healthcare
granting them exclusive rights to distribute the BioArchive System and
related disposables.
o The AutoXpress, or AXP, System is our newly developed automated system
and disposable intended for use in cell therapy to isolate and capture
stem cells from cord blood. Our agreement with GE Healthcare also
grants them exclusive rights to distribute the AXP System and
disposables, and we expect sales to begin in the first quarter of
2006.
o The CryoSeal Fibrin Sealant, or FS, System is an automated system used
in wound care to prepare an autologous hemostatic surgical sealant
from
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a patient's own blood in approximately one hour. We have completed our
pivotal 150 patient U.S. clinical trial and are preparing our PMA
submission. In addition, we have received the CE Mark, and in Japan
our distribution partner, Asahi Medical, filed their PMA equivalent in
March 2005.
o The Thrombin Processing Disposable, or TPD, is used in wound care to
isolate activated thrombin from the patient's blood plasma in less than
30 minutes. Thrombin is used as a topical hemostatic agent for minor
bleeding sites, to treat pseudo aneurysms and to release growth factors
from platelets. We have signed non-exclusive distribution agreements
with Biomet, Medtronic and Asahi Medical for sales of our TPD.
BACKGROUND
Industry
CTT is a broad and rapidly growing field of medicine that requires the
collection, purification, manipulation, storage and administration of stem
cells, proteins and growth factors tailored to individual patients. Personalized
CTT products are created from the blood or tissue of a single donor,
administered to that donor or a matched patient, and used either for the
treatment of leukemia, lymphoma and over 60 other life threatening diseases, or
for surgical wound care. Critical factors in providing effective personalized
CTT products are that they be precisely identified and tracked from their source
to the receiving patient and that every manufacturing step, such as harvesting,
processing, freezing, transporting, matching and delivering, preserves the
viability and sterility of the product.
Cell Therapy
The human body is comprised of cells of specific tissues, such as skin,
liver or blood, and stem cells that are not fully differentiated into specific
tissues. Until the middle of the 1990s, researchers were familiar with two major
types of stem cells, embryonic stem cells and adult stem cells. However,
researchers now know that pluripotent stem cells are found in cord blood, bone
marrow and other tissues of the body. Pluripotent stem cells are capable of
differentiation into multiple tissues such as bone, blood, nerve and muscle. All
the cells residing in blood, which are red cells, white cells and platelets,
arise from a particular pluripotent stem cell called the hematopoietic stem
cell. Before the discovery that there were hematopoietic stem cells in cord
blood, the placenta and umbilical cord were routinely discarded as biological
waste. However, these hematopoietic stem cells are harvested at no risk or pain
to the donor and can be preserved in a cord blood bank for clinical use with a
matched patient on short notice. Their use also results in a lower incidence of
post-transplant immune complications than transplants with adult bone marrow
stem cells.
Hematopoietic stem cell therapy is used to:
o replace diseased bone marrow with healthy, functioning bone marrow for
patients with blood diseases such as aplastic anemia;
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o replace bone marrow damaged by high-dose chemotherapy or radiation
therapy used to treat patients with a variety of cancers such as
leukemia and lymphoma; and
o provide genetically healthy and functioning bone marrow to treat
patients with genetic diseases such as sickle cell anemia.
With approximately four million births per year in the United States alone,
cord blood represents a large, natural resource for use in the treatment of
malignant and genetic diseases. Following the first successful cord blood
transplant performed in 1988, awareness of the potential therapeutic value of
cord blood stem cells has increased and collection and storage has grown
rapidly.
We believe the number of units stored will continue to grow, due in part to
the following factors:
o increased awareness about the availability and benefits of preserving
cord blood;
o improved technology to harvest the stem cells in a sterile environment
and maintain their viability for many years;
o growing endorsement by the medical community;
o new applications for cell therapy; and
o new governmental legislation.
For example, in May 2005, the House of Representatives passed the National
Cord Blood Stem Cell Act, which aims to store 150,000 units of cord blood in a
national registry. This Act is still awaiting passage by the Senate, and there
is no certainty that it ultimately will pass and be signed into law. Separately,
the Health Resources and Services Administration intends to distribute funds to
qualified cord blood banks to manufacture higher quality cord blood units and
develop an improved system for distributing the units to matched patients. We
believe that countries outside the United States are likely to follow this lead.
Wound Care
Wound care products are used in a variety of surgical procedures and
applications to control bleeding, close incisions, assist in tissue fixation,
create a physical barrier to prevent fluid or air passage and promote healing.
With the population and number of surgeries increasing and as physicians learn
about new applications and safer products, this market has potential for
significant growth. Wound-healing products are evaluated by their safety,
effectiveness, preparation time, ease of use and cost. In addition, the
components of wound care products are very important, as different materials
have different associated risks and benefits.
Current wound care products fall into the following general categories:
topical hemostats, tissue sealants and platelet gels. Topical hemostats are used
when bleeding is difficult to control with conventional methods, such as
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suturing, stapling or placement of pads or gauze at the bleeding site. The most
common type of topical hemostatic agents are thrombin-based, which are used in
procedures where blood clotting must be accelerated, in order to keep the
surgery site dry. In addition, thrombin can be used by itself to control minor
bleeding sites but is insufficient for more persistent bleeding sites.
The only thrombin that is available in the United States as a stand-alone
product is Thrombin JMI(R), a thrombin derived from bovine, or cow, blood. This
product is only sold in limited geographies outside of the United States. The
market for thrombin is growing rapidly, with Thrombin JMI net sales totaling
approximately $175 million in the full year ended December 31, 2004, and already
$170 million during the nine months ended September 30, 2005.
Tissue sealants, which are more powerful hemostatic agents than thrombin
alone, are made of either biologic or synthetic material and are used in a
variety of surgical specialties and applications. They are used to close
incisions, seal and secure skin flaps, reduce adhesions and promote hemostasis.
Fibrin sealants make up the majority of this sub-segment. Conventional fibrin
sealants are derived from large pools of up to 10,000 units of purchased human
plasma and often contain animal proteins such as bovine aprotinin. While current
processes attempt to remove all viral and bacterial pathogens from conventional
sealants, there have been several recent peer-reviewed journal reports of the
transmission of Parvovirus B-19 to surgical patients treated with these
sealants. In addition, animal proteins are a potential source of agents of
transmissible bovine spongiform encephalopathy, which are resistant to any
methods of pathogen inactivation available to fractionators at this time.
Autologous platelet gels are made by isolating the platelets from a small
amount of the patient's own blood and combining those platelets with thrombin.
Thrombin causes the release of growth factors from the platelets, which then
trigger wound-healing and tissue repair. Platelet gels increase the quantity and
concentration of growth factors at the wound site.
OUR SOLUTION
We believe that the use of personalized CTT products will increase due to
the growing evidence and understanding of their clinical benefits in treating
disease. Our proprietary systems and disposables enable the manufacture,
preservation and delivery of these personalized CTT products and have
substantial advantages over other products and practices available today. Our
products address a broad range of CTT applications in two primary areas: cell
therapy and tissue therapy, including wound care.
Cell Therapy
Our BioArchive and AXP Systems and disposables are designed to ensure that
the stem cells in the CTT products are successfully isolated, captured and
preserved such that the cells are fully viable at time of transplant, which may
be months or years after production. The BioArchive System, which can store up
to 3,623 units of cord blood stem cells, is the only fully automated system that
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integrates controlled rate freezing, quarantine and long term cryogenic storage.
The robotic storage and retrieval of these stem cell units improves cell
viability, provides precise inventory management and minimizes the possibility
of human error. To date we have sold 117 BioArchive Systems to major cord blood
stem cell banks and stem cell research centers in 26 countries. Cord blood stem
cell units have been used to treat leukemia, lymphoma and over 60 other life
threatening genetic diseases.
More recently, we have developed the AXP System, which automates the
isolation and capture of hematopoietic stem cells from cord blood into a fixed
20 ml volume. It includes a compact battery powered device and a proprietary
sterile disposable bag set. The AXP replaces the current clinical process, which
involves more than a dozen manual steps. The AXP System will provide cord blood
banks with a reproducible and GMP-compliant solution to more successfully
isolate and capture stem cells with lower labor costs and reduced contamination.
We expect sales of the AXP System and disposables to begin in the first quarter
of 2006 through our distribution partner, GE Healthcare.
Wound Care
In the tissue therapy market, we have developed the CryoSeal FS System and
the TPD. The CryoSeal FS System manufactures fibrin sealant in a closed and
sterile disposable from a single unit of the patient's own plasma in about an
hour. In contrast, conventional fibrin sealants are sourced from large pools of
up to 10,000 or more units of purchased plasma and often include bovine
proteins, and thus remain vulnerable to contamination by infectious pathogens
residing anywhere in these sources. Our CryoSeal FS System prepares the two
interactive liquid components of a fibrin sealant: (1) the wound healing
proteins of fibrinogen, fibronectin, Factor VIII, von Willebrands Factor and
Factor XIII and (2) the activating enzyme, thrombin. When combined at the
bleeding wound site, the two components form an adhesive gel that stops bleeding
and bonds tissue. Once prepared, the CryoSeal fibrin sealant may be stored
frozen for up to a year or used immediately as a hemostatic agent for patients
undergoing surgery.
Our pivotal trial, completed in July 2005, was a 150 patient blinded,
randomized multi-center clinical trial comparing the performance of CryoSeal FS
to Johnson & Johnson's Instat(R) collagen sponge. The study demonstrated that
patients treated with CryoSeal FS showed statistically significant reduced time
to hemostasis versus the Instat(R) control group, with p=<0.001. We are
currently preparing our PMA for the CryoSeal FS System for submission in the
first quarter of 2006.
We have received the CE Mark, allowing sales of the CryoSeal FS System in
Europe, although sales into individual countries under cost reimbursement
structures often requires the existence of supporting clinical usage within that
country. We have, through our distribution partners in Europe, undertaken
several clinical studies and, upon completion, will initiate more aggressive
marketing. In Japan, our distributor, Asahi Medical, has completed enrollment in
their pivotal clinical trial and filed their PMA equivalent in March 2005. In
addition, several field trials are underway in other geographies to provide a
cost justification for reimbursement for use of the product.
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The TPD is incorporated in the CryoSeal FS system but can be sold as a
stand alone product. It is a disposable device that isolates and captures
activated autologous thrombin from approximately 11 ml of patient blood plasma.
Thrombin is used as a topical hemostatic agent for minor bleeding sites, to
treat pseudo aneurysms and to release growth factors from platelets. We have a
received the CE Mark for TPD and began selling the product in Europe through our
distributor in August 2005. The TPD standalone product would require a separate
PMA before sale in the United States.
OUR STRATEGY
We believe our products significantly enhance the safety and viability of
CTT products and will ultimately expand the use and success of CTT products in
clinical treatment. Our strategy is to expand our leadership position in the
area of medical devices and disposables for the manufacture and preservation of
personalized CTT products. The key elements of our strategy include:
o Begin commercializing the AXP system through our strategic partner, GE
Healthcare Complete the PMA and receive approval for our CryoSeal FS System
in the United States and Japan
o Expand commercialization of the TPD through Biomet, Medtronic, Asahi
Medical and potentially other distribution partners
o Expand our reach through both sales and consulting services for clinical
trials
o Accelerate our research and development efforts
o Leverage our installed base to generate additional recurring revenue
CORPORATE INFORMATION
We are incorporated in Delaware. Our principal executive offices are
located at 2711 Citrus Road, Rancho Cordova, California 95742. Our telephone
number is (916) 858-5100. Our website is www.thermogenesis.com. Information
contained on our website is not considered to be a part of this prospectus.
DESCRIPTION OF COMMON STOCK
We are authorized by our Certificate of Incorporation, as amended and
restated, to issue 60,000,000 shares of common stock, $0.001 par value and
2,000,000 shares of preferred stock, $0.001 par value. As of November 18, 2005,
there were 45,981,192 shares of common stock and no shares of preferred stock
outstanding. Holders of shares of common stock have full voting rights, one vote
for each share held of record. Stockholders are entitled to receive dividends as
may be declared by the Board out of funds legally available therefore and share
pro rata in any distributions to stockholders upon liquidation. Stockholders
have no conversion, preemptive or subscription rights. All outstanding shares of
common stock are fully paid and nonassessable, and all the shares of common
stock issued by us upon the exercise of outstanding warrants will, when issued,
be fully paid and nonassessable.
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PLAN OF DISTRIBUTION
We may sell all or a portion of the common stock:
o Through one or more underwriters or dealers for public offering and sale;
o Directly to investors;
o Through agents;
o Through a block trade in which the broker or dealer engaged to handle the
block trade will attempt to sell the common stock as agent, but may
position and resell a portion of the block as principal to facilitate the
transaction.
We may distribute the common stock from time to time in one or more
transactions at a fixed price or prices, which may be changed from time to time:
o at market prices prevailing at the time of sale, or
o at negotiated prices.
We will describe the method of distribution of the common stock in the
prospectus supplement. Underwriters, dealers or agents may receive compensation
in the form of discounts, concessions or commissions from us or the purchasers,
as their agents, in connection with the sale of the common stock. These
underwriters, dealers or agents may be considered to be underwriters under the
Securities Act of 1933, as amended, and, therefore, any discounts, commissions,
or profits on resale received by such underwriters may be treated as
underwriting discounts and commissions. In the prospectus supplement, we will
identify any such underwriter, dealer or agent, and describe the compensation
received by them from us. Any public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
Underwriters, dealers and agents may be entitled to indemnification by us
against certain civil liabilities, including liabilities under federal
securities laws. Underwriters, dealers and agents also may be entitled to
contribution with respect to payments made by other underwriters, dealers and
agents under agreements between us and such underwriters, dealers and agents.
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, as amended, 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.
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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.
EXPERT
The financial statements of ThermoGenesis Corp appearing in ThermoGenesis
Corp.'s Annual Report (Form 10-K) for the year ended June 30, 2005 (including
the schedule appearing therein) and ThermoGenesis Corp. management's assessment
of the effectiveness of internal control over financial reporting as of June 30,
2005 included therein, have been audited by Ernst & Young LLP, independent
registered public accounting firm, as set forth in their reports thereon,
included therein, and incorporated herein by reference. Such financial
statements and management's assessment are incorporated herein by reference in
reliance upon such reports given on the authority of such firm as experts in
accounting and auditing.
LEGAL MATTERS
The validity of the shares of common stock offered will be passed by the
law firm of Bullivant/Houser/Bailey P.C., Sacramento, California.
11
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 and the NASD
fee.
SEC registration fee $8,827.50
Printing and engraving expenses $0
Accounting fees and expenses $20,000.00
Legal fees and expenses $25,000.00
Transfer agent and registrar fees $0
Fees and expenses for qualification under state securities laws $0
Engineering fees $0
Federal taxes $0
State taxes $0
Miscellaneous $0
Total $53,827.50
----------
Item 15. 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
12
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.
We have indemnification agreements with our officers and directors to
indemnify and provide advanced legal expenses as permitted by applicable law,
our Certificate of Incorporation and Bylaws. Under the agreements, we will not
indemnify or provide advance payments (i) for a violation of Section 16 of the
Securities Exchange Act, (ii) in connection with an officer's or director's
takeover attempt, or (iii) any other action where indemnification is not
permitted by law. The agreement terminates when the officer or director leaves
or is removed from his position.
Item 16. Exhibits
Exhibit No. Description
----------- -----------
5.1 Opinion of Bullivant/Houser/Bailey P.C.
23.1 Consent of Ernst & Young, LLP
23.2 Consent of Bullivant/Houser/Bailey P.C. (contained in Exhibit 5.1)
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 the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
13
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) 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.
(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.
(4) That, for the purpose of determining liability under the Securities Act
of 1933 to any purchaser:
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the date the
filed prospectus was deemed part of and included in the registration
statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7)(2), (b)(5), or (b)(7) of this chapter) as part of a
registration statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii), or (x) (i), (vii), or (x) of
this chapter) for the purpose of providing the information required by
section 10(a) of the Securities Act of 1933 shall be deemed to be part of
and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating to
the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no
statement made in registration
14
statement or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to
such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the registrant under
the Securities Act of 1933 to any purchaser in the initial distribution of
the securities:
The undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to such
purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to
offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule
424 (ss.230.424 of this chapter);
(ii) Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant;
and
(iv) Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
* * * * *
(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.
* * * * *
(c) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
15
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
* * * * *
(d) 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.
(e) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purposes of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus 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.
16
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 this Form S-3 and duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Rancho Cordova, California, on November 18, 2005.
THERMOGENESIS CORP.
a Delaware Corporation
/s/ Philip H. Coelho
---------------------------
Philip H. Coelho,
Chief Executive Officer
(Principal Executive Officer)
Known All Persons By These Present, that each person whose signature
appears below appoints Thomas A. Lacey as his true and lawful attorney-in-fact
and agent, with full power of substitution, for him and in his name, place and
stead, to sign any amendment (including post-effective amendments) to this
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
may do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent or any of them, or of his substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated:
/s/ Philip H. Coelho Dated: November 18, 2005
---------------------------------------------
Philip H. Coelho,
Chairman and Chief Executive Officer
(Principal Executive Officer)
/s/ Matthew Plavan Dated: November 18, 2005
---------------------------------------------
Matthew Plavan, Chief Financial Officer
(Principal Accounting Officer and
Principal Financial Officer)
/s/ Kevin Simpson Dated: November 18, 2005
--------------------------------------------
Kevin Simpson, President,
Chief Operating Officer and Director
17
/s/ Hubert E. Huckel Dated: November 18, 2005
--------------------------------------------
Hubert E. Huckel, Director
/s/ Patrick McEnany Dated: November 18, 2005
--------------------------------------------
Patrick McEnany, Director
/s/ George Barry Dated: November 18, 2005
--------------------------------------------
George Barry, Director
18
EXHIBIT INDEX
Exhibit No. Description
---------- -----------
5.1 Opinion of Bullivant/Houser/Bailey
23.1 Consent of Ernst & Young, LLP
23.2 Consent of Bullivant/Houser/Bailey (contained in Exhibit 5.1)