false
0000811212
0000811212
2022-02-03
2022-02-03
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 3, 2022
THERMOGENESIS HOLDINGS, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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333-82900
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94-3018487
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(State or Other Jurisdiction
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(Commission
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(IRS Employer
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of Incorporation)
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File Number)
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Identification No.)
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2711 Citrus Road, Rancho Cordova, California
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95742
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant’s telephone number, including area code: (916) 858-5100
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Common Stock, $0.001 par value
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THMO
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The Nasdaq Stock Market LLC
(The Nasdaq Capital Market)
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
As previously reported, on December 13, 2019, ThermoGenesis Holdings, Inc. (the “Company”) entered into an At the Market Offering Agreement (the “Offering Agreement”) with H.C. Wainwright & Co., LLC, as sales agent (the “Sales Agent”), pursuant to which the Company could offer and sell, from time to time, through the Sales Agent up to $4,400,000 of shares of the Company’s common stock, $0.001 par value (“Common Stock”). Also as previously reported, on May 19, 2020, the Company and the Sales Agent entered into Amendment No. 1 to the Offering Agreement (“Amendment No. 1”) to increase the maximum aggregate offering price of shares of Common Stock that may be offered and sold from time to time under the Offering Agreement, as amended by Amendment No. 1, to $15,280,313. Through the date hereof, the Company has offered and sold shares of Common Stock having an aggregate offering price at the time of sale of approximately $15,280,261 under the Offering Agreement (as amended by Amendment No. 1).
On February 3, 2022, the Company and the Sales Agent entered into Amendment No. 2 to the Offering Agreement (“Amendment No. 2” and the Offering Agreement, as amended by Amendment No. 1 and Amendment No. 2, the “Amended Offering Agreement”) to further increase the maximum aggregate offering price of shares of Common Stock that may be offered and sold from time to time under the Amended Offering Agreement from $15,280,313 to $19,555,261, which enables the Company to sell an additional $4,275,000 of shares after taking into account prior sales under the Offering Agreement (the “Additional Shares”). Amendment No. 2 also amended the Offering Agreement to change the expiration date of the Amended Offering Agreement from August 9, 2022 to the date on which all of the Additional Shares are sold by the Company or until the Amended Offering Agreement is otherwise mutually terminated, subject to the early termination provisions set forth in the agreement. The terms and conditions of the Offering Agreement otherwise remain unchanged.
Sales of the Additional Shares under the Amended Offering Agreement, if any, may be made in transactions that are deemed to be “at-the-market” offerings as defined in Rule 415 under the Securities Act of 1933, as amended, including without limitation sales made directly on or through the Nasdaq Capital Market or any other existing trading market for the Common Stock. The Sales Agent will use commercially reasonable efforts consistent with its normal trading and sales practices to sell the Additional Shares from time to time, based upon instructions from the Company (including any price, time or amount limits the Company may impose). The Company is not obligated to make any sales under the Amended Offering Agreement.
The foregoing description of the material terms of Amendment No. 2 is qualified in its entirety by reference to the full text of each of the Offering Agreement, a copy of which is included as Exhibit 1.1 hereto and is incorporated herein by reference, Amendment No. 1, which is included as Exhibit 1.2 hereto and is incorporated herein by reference, and Amendment No. 2, which is attached as Exhibit 1.3 hereto and is incorporated herein by reference.
The Additional Shares were registered pursuant to the Company’s shelf registration statement on Form S-3 (File No. 333-235509) (the “Registration Statement”), and offerings of the Additional Shares will be made only by means of a prospectus supplement. This Current Report on Form 8-K shall not constitute an offer to sell or solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities law of such state or jurisdiction.
Foley & Lardner LLP, counsel to the Company, has issued a legal opinion relating to the Additional Shares. A copy of such legal opinion, including the consent included therein, is attached as Exhibit 5.1 hereto.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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Exhibit
No.
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Description
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1.1
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1.2
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1.3
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5.1
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23.1
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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THERMOGENESIS HOLDINGS, INC.
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Dated: February 3, 2022
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/s/ Jeffery Cauble
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Jeffery Cauble
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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Exhibit 1.3
AMENDMENT NO. 2 TO AT THE MARKET OFFERING AGREEMENT
This AMENDMENT NO. 2 (the “Amendment”) to the AT THE MARKET OFFERING AGREEMENT originally dated as of December 13, 2019 (the “Original Agreement”), by and between Thermogenesis Holdings, Inc. f/k/a Cesca Therapeutics Inc. (“Thermogenesis”) and H.C. Wainwright & Co., LLC (the “Manager”) and together with the Original Agreement (the “Agreement”) is dated as of February 3, 2022. Capitalized terms not defined herein shall have the meanings assigned to them in the Agreement.
WITNESSETH:
WHEREAS, on December 13, 2019, Thermogenesis and the Manager entered into the Agreement;
WHEREAS, on May 19, 2020, Thermogenesis and the Manager entered into Amendment No. 1 to the Agreement;
WHEREAS, the parties now desire to amend the Agreement;
NOW, THEREFORE, in consideration of and for the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Agreement is hereby amended as follows:
1. The number “$15,280,313” in the first sentence of Section 2 of the Agreement is replaced with “$19,555,261.”
2. Section 8(c) shall be deleted in its entirety and replaced with the following:
“This Agreement shall remain in full force and effect until the date on which all of the Shares covered by this Agreement have been sold or otherwise by mutual agreement of the parties, provided that any such termination by mutual agreement shall in all cases be deemed to provide that Sections 5, 7, 8, 9, 10, 12 and 14 shall remain in full force and effect.”
3. (A) This Amendment shall be construed and interpret‐ed in accordance with the laws of the State of New York without giving effect to the conflict of laws rules thereof or the actual domiciles of the parties.
(B) Except as amended hereby, the terms and provisions of the Agreement shall remain in full force and effect, and the Agreement is in all respects ratified and confirmed. On and after the date of this Amendment, each reference in the Agreement to the "Agree‐ment", "hereinaf‐ter", "herein", "herein‐after", "hereunder", "hereof", or words of like import shall mean and be a reference to the Agreement as amended by this Amendment.
(C) This Amendment may be executed in one or more counter‐parts, each of which shall be deemed an original and all of which taken together shall constitute a single Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first stated above.
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THERMOGENESIS HOLDINGS, INC.
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By:
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/s/ Jeff Cauble
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Name: Jeff Cauble
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Title: CFO
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H.C. WAINWRIGHT & CO, LLC
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By:
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/s/ Mark W. Viklund
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Name: Mark W. Viklund
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Title: Chief Executive Officer
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Exhibit 5.1
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ATTORNEYS AT LAW
100 North Tampa Street, Suite 2700
Tampa, FL 33602-5810
P.O. Box 3391
TAMPA, FL 33601-3391
813.229.2300 TEL
813.221.4210 FAX
WWW.FOLEY.COM
CLIENT/MATTER NUMBER
115846-0109
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February 3, 2022
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ThermoGenesis Holdings, Inc.
2711 Citrus Road
Rancho Cordova, California 95742
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Ladies and Gentlemen:
We have acted as counsel for ThermoGenesis Holdings, Inc., a Delaware corporation (the “Company”), in connection with the Company’s issuance and sale, through H.C. Wainwright & Co., LLC as sales agent (the “Sales Agent”), of up to $19,555,261 of shares of the Company’s common stock, par value $0.001 per share (the “Placement Shares”), from time to time and at various prices in an “at-the-market” offering pursuant to (i) that certain At The Market Offering Agreement, dated December 13, 2019, as amended by that certain Amendment No. 1 to At The Market Offering Agreement, dated May 19, 2020, and by that certain Amendment No. 2 to At The Market Offering Agreement, dated February 3, 2022 (as amended, the “Sales Agreement”), by and among the Company and the Sales Agent, and (ii) the Company’s Registration Statement on Form S-3, Registration No. 333-235509, filed by the Company with the Securities and Exchange Commission (the “Commission”) on December 13, 2019 and declared effective on January 3, 2020 (the “Registration Statement”), the base prospectus filed as part of the Registration Statement (the “Base Prospectus”), and the prospectus supplement filed with the Commission on May 19, 2020 (the “First Prospectus Supplement”), and the prospectus supplement filed with the Commission on February 3, 2022 (the “Second Prospectus Supplement”, and together with the Base Prospectus and the First Prospectus Supplement, the “Prospectus”).
As counsel to the Company in connection with the proposed potential issuance and sale of the above-referenced Placement Shares, we have examined: (i) the Sales Agreement, (ii) the Registration Statement and the Prospectus, (iii) the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as amended to date, and (iv) the proceedings and actions taken by the Board of Directors of the Company to authorize and approve the transactions contemplated by the Sales Agreement and the execution and delivery of the Sales Agreement. We have also considered such matters of law and of fact, including the examination of originals or copies, certified or otherwise identified to our satisfaction, of such records and documents of the Company, certificates of officers, directors and representatives of the Company, certificates of public officials, and such other documents as we have deemed appropriate as a basis for the opinions set forth below. In our examination of the above-referenced documents, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates, and instruments submitted to us as originals and the conformity with the originals of all documents submitted to us as copies.
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AUSTIN
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DETROIT
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MEXICO CITY
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SACRAMENTO
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TAMPA
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BOSTON
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HOUSTON
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MIAMI
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SAN DIEGO
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WASHINGTON, D.C.
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CHICAGO
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JACKSONVILLE
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MILWAUKEE
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SAN FRANCISCO
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BRUSSELS
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DALLAS
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LOS ANGELES
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NEW YORK
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SILICON VALLEY
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TOKYO
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DENVER
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MADISON
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ORLANDO
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TALLAHASSEE
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February 3, 2022
Page 2
Our opinions expressed herein are limited to the General Corporation Law of the State of Delaware, and we express no opinion as to the laws of any other jurisdiction.
Based upon, subject to and limited by the foregoing, we are of the opinion that, upon the issuance of the Placement Shares pursuant to the terms of the Sales Agreement and the receipt by the Company of the consideration for the Placement Shares pursuant to the terms of the Sales Agreement, the Placement Shares will be validly issued, fully paid, and nonassessable.
We consent to the inclusion of this opinion as Exhibit 5.1 to the Company’s Current Report on Form 8-K, dated as of the date hereof, and incorporation by reference of the same into the Registration Statement and Prospectus, including the references to our firm therein. In giving our consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act of 1933, as amended (the “Securities Act”) or within the category of persons whose consent is required by Section 7 of the Securities Act.
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Very truly yours,
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/s/ Foley & Lardner LLP
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Foley & Lardner LLP
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