UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. __)
Filed by the Registrant |X|
Filed by a party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[x] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-11(c) or Section
240.14a-12
THERMOGENESIS CORP.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
|X| No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11
1) Title of each class of securities to which transaction
applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth the
amount on which the filing fee is calculated and state how it
was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
THERMOGENESIS CORP.
2711 Citrus Road
Rancho Cordova, CA 95742
Telephone (916) 858-5100
To the Stockholders of ThermoGenesis Corp.:
You are cordially invited to attend a Special Meeting of Stockholders of
ThermoGenesis Corp. (the "Company") to be held at 9:00 a.m. (EST), on December
5, 2005, at University Club, Room 2, 9th Floor, One West 54th Street, New York,
NY 10019.
At the meeting, you will be asked to approve an amendment to and
restatement of the Certificate of Incorporation to increase the number of
authorized shares of common stock from 60,000,000 to 80,000,000.
The accompanying Notice of the Special Meeting of Stockholders and Proxy
Statement contain information about the matters to be considered and acted upon,
and you should read the material carefully.
We hope you will be able to attend the meeting. However, whether or not you
plan to attend the meeting in person, to help assure us of a quorum, please
complete, date and sign the enclosed proxy card and mail it in the postage-paid
envelope provided as promptly as possible. Your proxy may be revoked at any time
prior to the time it is voted.
/s/Philip H. Coelho
--------------------------
Philip H. Coelho, Chairman of the Board and
Chief Executive Officer
October 31, 2005
Rancho Cordova, California
THERMOGENESIS CORP.
2711 Citrus Road
Rancho Cordova, CA 95742
Telephone (916) 858-5100
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD DECEMBER 5, 2005
NOTICE IS HEREBY GIVEN that the Special Meeting of Stockholders of
ThermoGenesis Corp. (the "Company"), a Delaware corporation, will be held at
University Club, Room 2, 9th Floor, One West 54th Street, New York, NY 10019 on
December 5, 2005, at 9:00 a.m. (EST) for the following purpose:
1. To approve an amendment to our Certificate of Incorporation to
increase the number of authorized shares of common stock by
20,000,000 shares.
The Board of Directors of the Company has fixed the close of business on
October 18, 2005, as the record date for determining those stockholders who will
be entitled to vote at the meeting or any postponement or adjournment thereof.
Stockholders are invited to attend the meeting in person.
Please sign and date the accompanying proxy card and return it promptly in
the enclosed postage-paid envelope whether or not you plan to attend the meeting
in person. If you attend the meeting, you may vote in person if you wish, even
if you previously have returned your proxy card. The proxy may be revoked at any
time prior to the time it is voted.
By Order of the Board of Directors
/s/David C. Adams
-----------------------
David C. Adams
Corporate Secretary
October 31, 2005
Rancho Cordova, California
YOUR VOTE IS IMPORTANT
YOU ARE URGED TO COMPLETE, DATE, SIGN AND PROMPTLY RETURN YOUR PROXY IN THE
ENCLOSED ENVELOPE WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING. IT IS IMPORTANT
THAT YOUR SHARES BE REPRESENTED REGARDLESS OF THE NUMBER YOU OWN. ANY PROXY
GIVEN BY YOU MAY BE REVOKED BY WRITTEN NOTIFICATION TO THE COMPANY'S CORPORATE
SECRETARY, BY FILING A DULY EXECUTED PROXY BEARING A LATER DATE, OR BY ATTENDING
THE SPECIAL MEETING IN PERSON AND VOTING BY BALLOT.
THERMOGENESIS CORP.
2711 Citrus Road
Rancho Cordova, CA 95742
Telephone (916) 858-5100
PROXY STATEMENT
INFORMATION CONCERNING THE SOLICITATION
We are furnishing this proxy statement to you in connection with a Special
Meeting of Stockholders of ThermoGenesis Corp. (the "Company") to be held on
December 5, 2005, at 9:00 a.m. (EST) at University Club, Room 2, 9th Floor, One
West 54th Street, New York, NY 10019, and at any postponement or adjournment
thereof (the "Meeting").
Only stockholders of record on October 18, 2005, are entitled to notice of
and to vote at the Meeting. As used in this Proxy Statement, the terms "we,"
"us" and "our" also refer to the Company.
The proxy solicited hereby, if properly signed and returned to us and not
revoked prior to its use, will be voted at the Meeting in accordance with the
instructions contained therein. If no contrary instructions are given, each
proxy received will be voted "FOR" the amendment to the certificate of
incorporation to increase the authorized shares of common stock. Any stockholder
giving a proxy has the power to revoke it at any time before it is exercised by:
(i) filing with the Company written notice of its revocation addressed to:
Corporate Secretary, ThermoGenesis Corp., 2711 Citrus Road, Rancho Cordova,
California 95742, (ii) submitting a duly executed proxy bearing a later date, or
(iii) appearing at the Meeting and giving the Corporate Secretary notice of his
or her intention to vote in person.
This proxy is solicited on behalf of the Board of Directors of the Company.
The Company will bear the entire cost of preparing, assembling, printing and
mailing proxy materials furnished by the Board of Directors to stockholders.
Copies of proxy materials will be furnished to brokerage houses, fiduciaries and
custodians to be forwarded to beneficial owners of the Company's stock entitled
to vote. In addition to the solicitation of proxies by use of the mail, some of
our officers, directors and employees may, without additional compensation,
solicit proxies by telephone or personal interview, and the Company has retained
Ryan and Associates as our proxy solicitor for a fee.
This Proxy Statement and form of proxy were first mailed on November 3,
2005 to stockholders of record as of October 18, 2005.
RECORD DATE AND VOTING RIGHTS
Pursuant to a prior vote the Company is currently authorized to issue up to
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 October 28, 2005, 45,931,692 shares of
Common Stock were issued and outstanding and no shares of Preferred Stock were
outstanding. Each share of Common Stock shall be entitled to one (1) vote on all
matters submitted for stockholder approval. The record date for determination of
stockholders entitled to notice of and to vote at the Meeting is October 18,
2005.
A majority of the outstanding shares of Common Stock of the Company,
entitled to vote must be represented in person or by proxy at the Meeting to
constitute a quorum for the transaction of business.
Under Delaware law, abstentions and broker non-votes are counted as present
for determining quorum. For the election of directors, the nominees for director
who receive the most votes will become our directors. There are no cumulative
voting rights. A majority of quorum is required to approve all other proposals.
Abstentions are treated as a vote against the proposal and broker non-votes will
not be counted either for or against any proposal to determine if a proposal is
approved.
1
PROPOSAL
AMENDMENT TO THE CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF
AUTHORIZED SHARES OF COMMON STOCK
General Information
The Board of Directors approved and recommends that the stockholders
approve an amendment to the Company's Amended and Restated Certificate of
Incorporation to increase the number of authorized shares of common stock from
60,000,000 to 80,000,000 shares. The number of authorized shares of the
Company's preferred stock will not be affected by the proposed increase. The
amendment will not result in any changes to the issued and outstanding shares of
common stock of the Company and will only affect the number of shares that may
be issued by the Company in the future.
Reasons for the Proposal
The primary purpose of this amendment to our Certificate of Incorporation
is to make available for future issuance by us additional shares of common stock
and to have a sufficient number of authorized and unissued shares of common
stock to maintain flexibility in our corporate strategy and planning. Such
corporate purposes might include acquiring other businesses in exchange for
shares of the Company's common stock; facilitating broader ownership of the
Company's stock by effecting stock splits or issuing a stock dividend;
flexibility for possible future financings; and attracting and retaining
valuable employees and directors through the issuance of additional stock
options or awards. The Board of Directors believes that these additional shares
will provide the Company with needed flexibility to issue shares in the future
without potential expense and delay incident to obtaining stockholder approval
for a particular issuance in the future. The Company currently has no plans,
understandings or agreement for the issuance or use of additional shares of
common stock to be authorized under this Proposal.
As of October 28, 2005, there were 45,931,692 shares of common stock
outstanding, 2,385,932 shares reserved for previously granted options, and
600,749 shares reserved for previous issued warrants. Additionally, a total of
582,578 shares have been set aside for future issuance under the Company's
equity incentive plans. Therefore, the Company currently has 10,499,049
authorized, unissued and unreserved shares of common stock available for future
issuance. If this proposal is not adopted, the Company may not have sufficient
additional shares of common stock available for future employee retention,
financings, acquisition or other corporate purposes.
In the past, the Company has utilized authorized but unissued shares for
acquiring additional working capital and for incentives for employees, directors
and consultants. At the present time there are no specific plans, arrangements
or understandings in existence or in process for any public or private financing
or issuance of shares in an acquisition. The Company's current shares
outstanding and shares reserved for issuance as of October 28, 2005, constitute
in the aggregate 83% of its current authorized shares. Therefore, the Board of
Directors has determined that it is desirable for the Company to increase the
number of shares of authorized common stock in order to meet needs that may
arise from time to time in the future.
Amendment
If this proposal is adopted by the stockholders, Article 4 of the Sixth
Amended and Restated Certificate of Incorporation will be amended to read as
follows:
"The Corporation is authorized to issue two classes of stock,
designated Common Stock, $0.001 par value ("Common Stock") and Preferred
Stock, $0.001 par value ("Preferred Stock"). The total number of shares
which the Corporation is authorized to issue is Eighty Two Million
(82,000,000). The total number of shares of Common Stock is Eighty Million
(80,000,000) and the total number of shares of Preferred Stock is Two
Million (2,000,000).
Shares of Preferred Stock may be issued from time to time in one or
more series. The Board of Directors shall determine the designation of each
series and the authorized number of shares of each series. The Board of
Directors is authorized to determine and alter the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly unissued
2
series of shares of Preferred Stock and to increase or decrease (but not
below the number of shares of such series then outstanding) the number of
shares of any such series subsequent to the issue of shares of that series.
If the number of shares of any series of Preferred Stock shall be so
decreased, the shares constituting such decrease shall resume the status
which they had prior to the adoption of the resolution originally fixing
the number of shares of such series."
A copy of the Sixth Amended and Restated Certificate of Incorporation
is attached as Exhibit A.
Delaware Franchise Tax
If the Proposal is adopted, the Company's authorized capital will increase
and the Company will be subject to an increase in the Delaware Franchise Tax.
However, the Company believes the increase in the number of authorized shares
will not materially increase the Delaware Franchise Tax of the Company.
Potential Anti-Takeover Aspects
Shares of authorized and unissued common stock could be issued in one or
more transactions that could make it more difficult, and therefore less likely,
for a takeover of the Company. Although the Board of Directors does not have the
present intention to use the additional authorized shares as an anti-takeover
device, the issuance of additional common stock could have the effect of
diluting the stock ownership of persons seeking control of the Company and the
possibility of such dilution could have a deterrent effect on persons seeking to
acquire control. For example, shares of common stock can be privately placed
with purchasers who support a board of directors in opposing a tender offer or
other hostile takeover bid, or can be issued to dilute the stock ownership and
voting power of a third party seeking a merger or other extraordinary corporate
transaction. Accordingly, the power to issue additional shares of common stock
could enable the Board of Directors to make it more difficult to replace
incumbent directors and to accomplish business combinations opposed by the
incumbent Board of Directors.
Principal Effects on Outstanding Common Stock
The proposal to increase the authorized capital stock will affect the
rights of existing holders of common stock to the extent that future issuances
of common stock will reduce each existing stockholder's proportionate ownership
and may dilute earnings per share of the shares outstanding at the time of any
such issuance. If approved, the amendment to the Certificate of Incorporation
will be effective upon filing with the Secretary of State for Delaware.
RECOMMENDATION OF THE BOARD
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE AMENDMENT TO THE
CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF
COMMON STOCK UNDER THIS PROPOSAL ON THE PROXY CARD.
OTHER BUSINESS
We do not know of any business to be presented for action at the meeting
other than those items listed in the notice of the meeting and referred to
herein. If any other matters properly come before the meeting or any adjournment
thereof, it is intended that the proxies will be voted in respect thereof in
accordance with their best judgment pursuant to discretionary authority granted
in the proxy.
ALL STOCKHOLDERS ARE URGED TO EXECUTE THE ACCOMPANYING PROXY AND TO RETURN
IT PROMPTLY IN THE ACCOMPANYING ENVELOPE. STOCKHOLDERS MAY REVOKE ANY PROXY IF
SO DESIRED AT ANY TIME BEFORE IT IS VOTED.
By Order of the Board of Directors
/s/David C. Adams
------------------------
David C. Adams,
Corporate Secretary
October 31, 2005
Rancho Cordova, California
3
PROXY
THERMOGENESIS CORP.
2711 Citrus Road
Rancho Cordova, CA 95742
Telephone (916) 858-5100
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS.
The undersigned hereby appoints Philip H. Coelho and Kevin Simpson as proxies,
each with full power to appoint substitutes, and hereby authorizes them or
either of them to represent and to vote as designated below, all the shares of
common stock of ThermoGenesis Corp. held of record by the undersigned as of
October 18, 2005, at the Special Meeting of Stockholders to be held at
University Club, Room 2, 9th Floor, One West 54th Street, New York, NY 10019, at
9:00 a.m., (EST), on December 5, 2005, and any adjournments or postponements
thereof, and hereby ratifies all that said attorneys and proxies may do by
virtue hereof.
PLEASE MARK VOTE IN BRACKET IN THE FOLLOWING MANNER USING DARK INK ONLY. |X|
1. Approve an amendment to the Certificate of Incorporation to increase
the number of authorized shares of common stock from 60,000,000 to
80,000,000.
[ ] FOR [ ] AGAINST [ ] ABSTAIN
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN
BY THE UNDERSIGNED STOCKHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE
VOTED "FOR" PROPOSAL ONE.
THIS PROXY ALSO DELEGATES DISCRETIONARY AUTHORITY TO VOTE WITH RESPECT TO OTHER
BUSINESS WHICH PROPERLY MAY COME BEFORE THE MEETING, OR ANY ADJOURNMENTS OR
POSTPONEMENTS THEREOF. IN THEIR DISCRETION, THE PROXIES ARE AUTHORIZED TO VOTE
UPON SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE MEETING.
PLEASE READ, SIGN, DATE AND RETURN THIS PROXY PROMPTLY USING THE ENCLOSED
ENVELOPE.
THE UNDERSIGNED HEREBY ACKNOWLEDGES RECEIPT OF THE NOTICE OF SPECIAL MEETING AND
PROXY STATEMENT FURNISHED IN CONNECTION THEREWITH.
Dated: --, 2005
Signature ----------------------
Signature ----------------------
Common Stock
Please sign exactly as name appears. When shares are held by joint tenants or
more than one person, all owners should sign. When signing as attorney, as
executor, administrator, trustee, or guardian, please give full title as such.
If a corporation, please sign in full corporate name by President or other
authorized officer. If a partnership, please sign in partnership name by
authorized person.
EXHIBIT A
SIXTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF THERMOGENESIS CORP.
ThermoGenesis Corp., a corporation organized and existing under the laws of
the State of Delaware, (the "Corporation") hereby certifies as follows:
1. The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on July 3, 1986,
under the corporate name Refrigeration Systems International.
2. A Certificate of Merger was filed with the Secretary of State of the
State of Delaware on September 26, 1986, whereupon the Corporation's name
changed to Insta Cool Inc. of North America.
3. A Restated Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware on March 24, 1994.
4. An Amended and Restated Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
January 12, 1995, changing the Corporation's name to THERMOGENESIS CORP.
5. An Amended and Restated Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
June 5, 1996.
6. An Amended and Restated Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
August 2, 1999.
7. A Fifth Amended and Restated Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
October 28, 2005.
8. This Sixth Amended and Restated Certificate of Incorporation was
duly adopted by the Board of Directors and stockholders of the Corporation in
accordance with Sections 242 and 245 of the Delaware General Corporation Law and
restates and integrates and further amends the provisions of the previous filed
Amended and Restated Certificate of Incorporation of this Corporation.
9. The current Amended and Restated Certificate of Incorporation is
hereby amended and restated in its entirety to read as follows:
FIRST: The name of the corporation is: THERMOGENESIS CORP.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is 2711
Centerville Road, Suite 400, Wilmington, County of Newcastle, Delaware 19808;
and the name of the registered agent of the Corporation in the State of Delaware
at such address is The Company Corporation.
THIRD: The nature of the business or purposes to be conducted or
promoted of this Corporation shall be to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
FOURTH: The Corporation is authorized to issue two classes of stock,
designated Common Stock, $0.001 par value ("Common Stock") and Preferred Stock,
$0.001 par value. The total number of shares of Common Stock that the
Corporation shall have authority to issue is Eighty Million (80,000,000) and the
total number of Shares of Preferred Stock that the Corporation shall have
authority to issue is Two Million (2,000,000).
The Corporation has no issued or outstanding shares of its previously
authorized Series A Convertible Preferred Stock. Accordingly, all rights,
preferences, privileges and restrictions granted to or imposed upon such series
of shares have been omitted from this Sixth Amended and Restated Certificate of
Incorporation.
Shares of Preferred Stock may be issued from time to time in one or
more series. The Board of Directors shall determine the designation of each
series and the authorized number of shares of each series. The Board of
Directors is authorized to determine and alter the rights, preferences,
privileges and restrictions granted to or imposed upon any wholly unissued
series of shares of Preferred Stock and to increase or decrease (but not below
the number of shares of such series then outstanding) the number of shares of
any such series subsequent to the issue of shares of that series. If the number
of shares of any series of Preferred Stock shall be so decreased, the shares
constituting such decrease shall resume the status which they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
FIFTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court or equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under Section 279 of Title 8 of the Delaware Code order a
meeting of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number representing
three fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
SIXTH: The business and affairs of the Corporation shall be managed by
or under the direction of its Board of Directors. The number of directors which
shall constitute the entire Board of Directors shall be fixed by, or in the
manner provided in, the bylaws of this Corporation. The election of directors of
the Corporation need not be by written ballot, unless the bylaws so provide.
SEVENTH: The Board of Directors is authorized to adopt, amend or repeal
the bylaws of the Corporation. The stockholders shall also have the power to
adopt, amend or repeal the bylaws of the Corporation. Notwithstanding, any
provision for the classification of directors for staggered terms pursuant to
Section 141(d) of the Delaware General Corporation Law shall be set forth in the
bylaws adopted by the stockholders unless provisions for such classification
shall be set forth in the Corporation's certificate of incorporation.
EIGHTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except to the extent such exemption from liability or
limitation thereof is not permitted under the Delaware General Corporation Law
as the same exists or may hereafter be amended.
Any repeal or modification of the foregoing paragraph shall not
adversely affect any right or protection of a director of the Corporation
existing hereunder with respect to any act or omission occurring prior to such
repeal or modification.
NINTH: To the fullest extent permitted by Section 145 of the General
Corporation Law of Delaware as the same exists or may hereafter be amended, the
Corporation shall indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and the
indemnification provided for hereby shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to any
action such person may have performed in current official capacity or in another
capacity while holding such office, and shall continue as to any person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of heirs, executors and administrators of such person. No repeal or
modification of this Section by the stockholders of the Corporation shall
adversely affect any right of protection existing by virtue of this Section at
the time of such repeal or modification.
IN WITNESS WHEREOF, the Corporation has caused this Sixth Amended and
Restated Certificate of Incorporation to be signed by its duly authorized
officer this -- day of -------, 2005.
THERMOGENESIS CORP.
---------------------------------
Philip H. Coelho, Chairman & CEO