S-1/A 1 b36157a2s-1a.txt AMENDMENT NO. 2 TO FORM S-1 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 10, 2000 REGISTRATION NO. 333-44384 -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ AMENDMENT NO. 2 TO FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ ADVANCED THERMAL SCIENCES CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ------------------------ DELAWARE 3559 58-2367120 (STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)

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) ------------------------ 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) ------------------------ COPIES TO: 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

------------------------ 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. [ ] ------------------------ CALCULATION OF REGISTRATION FEE

(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. -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- 2 EXPLANATORY NOTE This Amendment No. 2 (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. 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.

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 ATS 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. II-1 4 ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) EXHIBITS.

--------------- * To be supplied by amendment. ** Previously filed. + The Registrant intends to apply for confidential treatment of portions of this Exhibit. Accordingly, portions thereof have been omitted and will be filed separately. II-2 5 (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 6 SCHEDULE II -- VALUATION AND QUALIFYING ACCOUNTS (IN THOUSANDS)

II-4 7 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. II-5 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 October 10, 2000. ADVANCED THERMAL SCIENCES CORPORATION By: /s/ AMIN J. KHOURY ------------------------------------- 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:

II-6 9 EXHIBIT INDEX

ADVANCED THERMAL SCIENCES CORP S-1/A