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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 7, 2000
REGISTRATION NO. 333-44384
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ADVANCED THERMAL SCIENCES CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<TABLE>
<S> <C> <C>
DELAWARE 3559 58-2367120
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
3355 EAST LA PALMA AVENUE
ANAHEIM, CA 92806
(714) 688-4200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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AMIN J. KHOURY, CHAIRMAN AND CHIEF EXECUTIVE OFFICER
ADVANCED THERMAL SCIENCES CORPORATION
3355 EAST LA PALMA AVENUE
ANAHEIM, CA 92806
(714) 688-4200
(NAME, ADDRESS INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
<TABLE>
<S> <C>
ROHAN S. WEERASINGHE VICTOR A. HEBERT
SHEARMAN & STERLING HELLER EHRMAN WHITE & MCAULIFFE LLP
599 LEXINGTON AVENUE 333 BUSH STREET
NEW YORK, NY 10022-6069 SAN FRANCISCO, CA 94104
(212) 848-4000 (415) 772-6000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this registration
statement.
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, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 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 this form is a post-effective amendment filed pursuant to Rule 462(d)
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. [ ]
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED AGGREGATE OFFERING PRICE(1) REGISTRATION FEE(2)
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<S> <C> <C>
Class A common stock, $0.01 par value..... $50,600,000 $13,359
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(1) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(o) under the Securities Act.
(2) Previously paid.
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 OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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EXPLANATORY NOTE
This Amendment No. 4 (this "Amendment") is being filed solely for the
purpose of filing an exhibit to the Registration Statement on Form S-1
(Registration No. 333-44384) (the "Registration Statement") filed with the
Securities and Exchange Commission by Advanced Thermal Sciences Corporation.
This Amendment does not contain a copy of the prospectus included in the
Registration Statement, which is unchanged.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by us in connection with the
sale of common stock being registered. All amounts are estimates except the SEC
registration fee and the NASD filing fee and the Nasdaq National Market listing
fee.
<TABLE>
<CAPTION>
AMOUNT TO BE
PAID BY
ADVANCED
THERMAL
SCIENCES
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<S> <C>
SEC registration fee........................................ $ 13,359
NASD filing fee............................................. 5,560
Nasdaq National Market listing fee.......................... 60,000
Printing and engraving expenses............................. 300,000
Legal fees and expenses..................................... 600,000
Accounting fees and expenses................................ 300,000
Blue Sky qualification fees and expenses.................... 3,500
Transfer Agent and Registrar fees........................... 20,000
Miscellaneous fees and expenses............................. 197,581
----------
Totals............................................ $1,500,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933. Article VIII of our Amended
and Restated Certificate of Incorporation (Exhibit 3.1 hereto) and Article 8.1
of our Amended and Restated Bylaws (Exhibit 3.2 hereto) provide for
indemnification of our directors, officers, employees and other agents to the
maximum extent permitted by Delaware law. The Underwriting Agreement (Exhibit
1.1 hereto) also provides for cross-indemnification among Advanced Thermal
Sciences and B/E Aerospace, on the one hand, and the underwriters, on the other
hand, with respect to matters arising under the Securities Act.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
In connection with our incorporation in December 1997, we issued 1,000
shares of our common stock to B/E Aerospace, our parent company, in
consideration for cash consideration of $1,000. The share amount issued to B/E
Aerospace does not reflect the ten thousand-for-one split of our common stock
effected in July 2000. The issuance of these securities was deemed to be exempt
from registration under the Securities Act of 1933 in reliance upon Section 4(2)
of the Act as a transaction by an issuer not involving any public offering. On
July 14, 2000 we issued options to purchase 1,200,000 shares of our common stock
at an exercise price of $6.75 per share to eight of our employees and options to
purchase 100,000 shares of our common stock at an exercise price of $6.75 per
share to four of our non-employee directors. The issuance of these securities
was deemed to be exempt from registration under the Securities Act in reliance
upon Rule 701 promulgated under Section 3(b) of the Securities Act for
transactions pursuant to compensation benefit plans and contracts relating to
compensation. The recipients of securities in each of these transactions
represented their intentions to acquire the securities for investment only and
not with a view to or for sale in connection with any distribution thereof and
appropriate legends were affixed to the share certificates issued in these
transactions. All recipients had adequate access, through their relationships
with us, to information about us.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) EXHIBITS.
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<CAPTION>
NUMBER DESCRIPTION
------ -----------
<S> <C>
1.1* Form of Underwriting Agreement.
3.1** Amended and Restated Certificate of Incorporation of the
Registrant.
3.2** Amended and Restated Bylaws of the Registrant.
4.1** Specimen Stock Certificate.
5.1* Opinion of Shearman & Sterling.
10.1** Form of Cross-License Agreement between BE Aerospace, Inc.
and the Registrant.
10.2** Form of Asset Purchase Agreement between BE Aerospace, Inc.
and the Registrant.
10.3** Transition Services Agreement dated as of July 31, 2000
between BE Aerospace, Inc. and the Registrant.
10.4** Tax Allocation Agreement dated as of July 31, 2000 between
BE Aerospace, Inc. and the Registrant.
10.5** Advanced Thermal Sciences Corporation Stock Option Plan.
10.6** Advanced Thermal Sciences Corporation Employee Stock
Purchase Plan.
10.7** Advanced Thermal Sciences Corporation Directors' Stock
Option Plan.
10.8* Advanced Thermal Sciences Corporation Non-Employee
Directors' Stock and Deferred Compensation Plan.
10.9** Sublease Agreement dated August 1, 2000 between B/E
Aerospace and Registrant.
10.10+ Strategic Teaming Agreement between Helix Technology
Corporation and the Registrant.
10.11** Registration Rights Agreement dated as of July 31, 2000
between BE Aerospace, Inc. and the Registrant.
10.12** Employment Agreement with Amin J. Khoury.
10.13** Employment Agreement with R. Bruce Thayer.
10.14** Employment Agreement with Kenneth W. Cowans.
10.15** Employment Agreement with Gregory J. Mills.
10.16** Employment Agreement with Lloyd D. Golobay.
10.17** Employment Agreement with Cameron H. Adamson.
23.1** Consent of Deloitte & Touche LLP.
23.2** Consent of Shearman & Sterling (see Exhibit 5.1).
24.1** Power of Attorney (see page II-4).
27.1** Financial Data Schedule.
</TABLE>
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* To be supplied by amendment.
** Previously filed.
+ The Registrant has applied for confidential treatment of portions of this
Exhibit. Accordingly, portions thereof have been omitted and were filed
separately.
II-2
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(B) FINANCIAL STATEMENT SCHEDULE.
INDEPENDENT AUDITORS' REPORT ON SCHEDULE
To the Board of Directors and Shareholder of
Advanced Thermal Sciences Corporation
We have audited the accompanying balance sheets of Advanced Thermal
Sciences Corporation (formerly Advanced Thermal Technologies, Inc.) (a wholly
owned subsidiary of BE Aerospace, Inc.) (the "Company") as of February 26, 2000
and February 27, 1999, and the related statements of operations, shareholder's
deficit and cash flows for each of the three fiscal years in the period ended
February 26, 2000 and have issued our report thereon dated August 14, 2000
(except Note 9 which is as of September 20, 2000) included elsewhere in this
Registration Statement. Our audits also included the financial statement
schedule listed in Item 16 of this Registration Statement. This financial
statement schedule is the responsibility of the Company's management. Our
responsibility is to express an opinion based on our audits. In our opinion,
such financial statement schedule, when considered in relation to the basic
financial statements taken as a whole, presents fairly in all material respects
the information set forth therein.
DELOITTE & TOUCHE LLP
Costa Mesa, California
August 14, 2000
II-3
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SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS
(IN THOUSANDS)
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BALANCE BALANCE
AT BEGINNING AT END
OF PERIOD EXPENSES OTHER DEDUCTIONS OF PERIOD
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<S> <C> <C> <C> <C> <C>
Allowance for doubtful accounts:
Six months ended August 26, 2000 (unaudited).... $ 20 $ -- $-- $-- $ 20
Year ended February 26, 2000.................... -- 20 -- -- 20
Reserve for obsolete inventories:
Six months ended August 26, 2000 (unaudited).... $150 $209 $-- $-- $359
Year ended February 26, 2000.................... -- 150 -- -- 150
Reserve for warranty:
Six months ended August 26, 2000 (unaudited).... $688 $381 $-- $98 $971
Year ended February 26, 2000.................... 66 650 -- 28 688
Year ended February 27, 1999.................... -- 66 -- -- 66
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ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreements certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
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 Securities
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 Securities
Act and will be governed by the final adjudication of such issue.
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 purpose 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.
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<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Anaheim, State of
California on December 7, 2000.
ADVANCED THERMAL SCIENCES CORPORATION
By: /s/ AMIN J. KHOURY
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Amin J. Khoury
Chairman and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
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SIGNATURE TITLE DATE
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<C> <S> <C>
* Chief Executive Officer and Chairman of December 7, 2000
------------------------------------ the Board (Principal Executive
Amin J. Khoury Officer)
* President, Chief Operating Officer and December 7, 2000
------------------------------------ Director
R. Bruce Thayer
* Vice President, Chief Financial Officer December 7, 2000
------------------------------------ and Treasurer (Principal Financial
Cameron H. Adamson and Accounting Officer)
* Director December 7, 2000
------------------------------------
Roger D. Emerick
* Director December 7, 2000
------------------------------------
Robert J. Lepofsky
* Director December 7, 2000
------------------------------------
Amin C. Khoury
* Director December 7, 2000
------------------------------------
Robert J. Therrien
*By: /s/ AMIN J. KHOURY
------------------------------------
Amin J. Khoury
Attorney-in-fact
</TABLE>
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<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
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<S> <C>
1.1* Form of Underwriting Agreement.
3.1** Amended and Restated Certificate of Incorporation of the
Registrant.
3.2** Amended and Restated Bylaws of the Registrant.
4.1** Specimen Stock Certificate.
5.1* Opinion of Shearman & Sterling.
10.1** Form of Cross-License Agreement between BE Aerospace, Inc.
and the Registrant.
10.2** Form of Asset Purchase Agreement between BE Aerospace, Inc.
and the Registrant.
10.3** Transition Services Agreement dated as of July 31, 2000
between BE Aerospace, Inc. and the Registrant.
10.4** Tax Allocation Agreement dated as of July 31, 2000 between
BE Aerospace, Inc. and the Registrant.
10.5** Advanced Thermal Sciences Corporation Stock Option Plan.
10.6** Advanced Thermal Sciences Corporation Employee Stock
Purchase Plan.
10.7** Advanced Thermal Sciences Corporation Directors' Stock
Option Plan.
10.8* Advanced Thermal Sciences Corporation Non-Employee
Directors' Stock and Deferred Compensation Plan.
10.9** Sublease Agreement dated August 1, 2000 between B/E
Aerospace and Registrant.
10.10+ Strategic Teaming Agreement between Helix Technology
Corporation and the Registrant.
10.11** Registration Rights Agreement dated as of July 31, 2000
between BE Aerospace, Inc. and the Registrant.
10.12** Employment Agreement with Amin J. Khoury.
10.13** Employment Agreement with R. Bruce Thayer.
10.14** Employment Agreement with Kenneth W. Cowans.
10.15** Employment Agreement with Gregory J. Mills.
10.16** Employment Agreement with Lloyd D. Golobay.
10.17** Employment Agreement with Cameron H. Adamson.
23.1** Consent of Deloitte & Touche LLP.
23.2** Consent of Shearman & Sterling (see Exhibit 5.1).
24.1** Power of Attorney (see page II-4).
27.1** Financial Data Schedule.
</TABLE>
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* To be supplied by amendment.
** Previously filed.
+ The Registrant has applied for confidential treatment of portions of this
Exhibit. Accordingly, portions thereof have been omitted and were filed
separately.
II-7
