As filed with the Securities and Exchange Commission on December 22, 1999
Reg. No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
HAWKER PACIFIC AEROSPACE
(Exact name of registrant as specified in its charter)
California
(State or other jurisdiction of incorporation or organization)
95-3528840
(I.R.S. Employer Identification No.)
Hawker Pacific Aerospace
11249 Sherman Way
Sun Valley, CA 91352
(818) 765-6201
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
Phil Panzera
Executive Vice President
Hawker Pacific Aerospace
11249 Sherman Way
Sun Valley, CA 91352
(818) 765-6201
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Yvonne Wong Chester, Esq.
Troy & Gould Professional Corporation
1801 Century Park East, Suite 1600
Los Angeles, California 90067
(310) 553-4441
Approximate date of commencement of proposed sale to public:
As soon as practicable after this Registration Statement becomes effective.
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
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Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Registration
Securities to be Registered Registered Per Share Offering Price Fee
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Common Stock, no par value............ 1,433,881 shares (1) $6.72 (2) $9,635,680 $2,544
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Common Stock, no par value............ 125,000 shares (3) 7.37 (4) 921,250 243
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Common Stock, no par value............ 50,000 shares (3) 2.85 (4) 142,500 38
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Common Stock, no par value............ 222,716 shares (3) 8.00 (4) 1,781,728 471
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Total Registration Fee............................................................................................ $3,296
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(1) Represents shares of Common Stock issuable upon conversion of the 8%
Series C Convertible Preferred Stock described herein, including stock
dividends on the Series C. In accordance with Rule 416, there is also
being registered hereunder such indeterminate number of additional
shares of Common Stock as may become issuable upon conversion of the
convertible preferred stock to prevent dilution resulting from stock
splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee.
Based, pursuant to Rule 457, on the average of the high and low sale
prices of Registrant's Common Stock as reported on the Nasdaq National
Market on December 20, 1999.
(3) Represents shares issuable upon exercise of warrants. In accordance with
Rule 416, there is also being registered hereunder such indeterminate
number of additional shares of Common Stock as may become issuable upon
exercise of the warrants to prevent dilution resulting from stock
splits, stock dividends or similar transactions.
(4) Based, pursuant to Rule 457, on the exercise price of the warrants
referred to in note (3) above.
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.
SUBJECT TO COMPLETION, DATED DECEMBER 22, 1999
PROSPECTUS
1,831,597 SHARES
HAWKER PACIFIC AEROSPACE
COMMON STOCK
Hawker Pacific Aerospace is a leading provider of aviation maintenance
services. The Company repairs and overhauls aircraft and helicopter landing
gear, hydromechanical components, wheels, and braking systems for a diverse
international customer base, including major commercial airlines, air cargo
operators, domestic government agencies, aircraft leasing companies, parts
distributors and OEMs.
The securityholders named herein or their assigns are offering for
resale from time to time up to 1,831,597 shares of our common stock which
they have the right to acquire. See "Selling Securityholders." All of the
shares are being offered by the selling securityholders. Of the shares
offered, 397,716 are issuable upon the exercise of outstanding warrants to
purchase common stock and 1,433,881 are issuable upon conversion of our
outstanding convertible preferred stock held by certain of the selling
securityholders and the payment of stock dividends on the preferred stock.
The number of shares offered by these selling securityholders is subject to
increase in certain events by reason of so-called antidilution provisions of
the warrants and convertible preferred stock held by them.
We will receive the exercise price of the warrants described in this
prospectus to the extent they are exercised, but we will not otherwise
receive any proceeds in connection with the sale of the shares by the selling
securityholders. See "Use of Proceeds."
The common stock is traded on the Nasdaq National Market under the symbol
"HPAC." On December 20, 1999, the last sale price for the common stock as
reported on the Nasdaq National Market was $6.75.
The selling securityholders may offer the shares of common stock from
time-to-time to or through brokers, dealers or other agents, or directly to
other purchasers, in one or more market transactions or private transactions
at prevailing market or at negotiated prices. Brokers, dealers or other
agents engaged by the selling securityholders may arrange for other brokers,
dealers or agents to participate in sales of the shares and may receive
commissions, discounts or concessions from the selling securityholders in
amounts to be negotiated. These brokers, dealers or agents may be deemed to
be "underwriters" within the meaning of the federal securities laws, and any
commissions, discounts or concessions they receive may be deemed to be
underwriting discounts or commissions. See "Plan of Distribution."
We will bear the costs and expenses of registering the shares offered by
the selling securityholders. The selling securityholders will bear any
commissions and discounts attributable to sales of the shares.
AN INVESTMENT IN THE COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. BEFORE
PURCHASING ANY SHARES, YOU SHOULD CONSIDER CAREFULLY THE RISKS DESCRIBED
UNDER "RISK FACTORS" BEGINNING ON PAGE 3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THE COMMON STOCK OR DETERMINED THAT
THIS PROSPECTUS IS COMPLETE OR ACCURATE. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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The date of this prospectus is January __, 2000
The information in this prospectus is not complete and may be changed. These
Securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell, nor does it seek an offer to buy, these securities in any
state where the offer or sale is not permitted.
THE COMPANY
GENERAL
Hawker Pacific Aerospace is a leading provider of aviation maintenance
services. We repair and overhaul aircraft and helicopter landing gear,
hydromechanical components, wheels, and braking systems for a diverse
international customer base, including major commercial airlines, air cargo
operators, domestic government agencies, aircraft leasing companies, parts
distributors and OEMs. Our principal executive offices are located at 11249
Sherman Way, Sun Valley, California 91352 and our telephone number is (818)
765-6201.
We have retained the aerospace investment banking team of First Union
Securities, including its mergers and acquisitions group (formerly Bowles
Hollowell Conner), to advise the Company's Board of Direcors on alternatives
for maximizing shareholder value. Based in part on the number of unsolicited
inquiries we had previously received, we believe that the time is right to
explore alternatives for fully realizing the Company's potential.
AVAILABLE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). We file reports and
other information with the Securities and Exchange Commission in accordance
with the Exchange Act. You can inspect and copy these reports, proxy
statements and other information at the public reference facilities
maintained by the SEC at Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, as well as at the following regional offices: Seven World Trade
Center, New York, New York 10048, and Northwestern Atrium Center, 500 W.
Madison Street, Chicago, Illinois 60661. You can obtain copies of such
material from the Public Reference Section of the SEC at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. You can also
obtain such materials electronically at the SEC's site on the World Wide Web
at http:/www.sec.gov.
Additional information regarding us and the shares of common stock
offered by the selling securityholders is contained in the registration
statement of which this prospectus forms a part, and the exhibits thereto,
filed with the SEC under the Securities Act of 1933, as amended (the
"Securities Act"). For further information pertaining to us and the offered
shares, reference is made to the registration statement and the exhibits
thereto, which may be inspected without charge at, and copies thereof may be
obtained at prescribed rates from, the office of the SEC at Judiciary Plaza,
450 Fifth Street, Washington, D.C. 20549 or obtained electronically at the
SEC's World Wide Web site referred to above. Statements contained herein
concerning the provisions of any document are not necessarily complete and in
each instance reference is made to the copy of the document filed as an
exhibit or schedule to the registration statement. Each such statement is
qualified by reference to the copies of the applicable documents filed with
the SEC.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company (Commission File No. 0-29490)
with the Commission under the Exchange Act are incorporated in this Prospectus
by reference: (a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1998; (b) the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999; (c) the Company's Quarterly Report on Form 10-Q,
as amended, for the quarter ended June 30, 1999; the Company's Quarterly Report
on Form 10-Q for the quarter ended September 30,1999; (d) all other reports
filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of
fiscal 1997; (e) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (Reg. No. 0-29490) under the
Exchange Act; and (f) the description of the Company's preferred share purchase
rights and Series B Junior Participating Preferred Stock contained in the
Company's Registration Statement on Form 8-A, filed March 23, 1999, as amended
April 7, 1999, under the Exchange Act; and including any amendment or report
subsequently filed by the Company for the purpose of updating the descriptions
under (e) and (f).
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 and
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of this offering shall be deemed to be incorporated by reference
into this Prospectus and to be a part of this Prospectus from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein (or in any other subsequently filed document which also is, or
is deemed to
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be, incorporated by reference herein) modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Prospectus.
On request, the Company will provide, without charge, to each person,
including any beneficial owner, to whom this Prospectus is delivered a copy
of any or all of the documents incorporated by reference (other than exhibits
to such documents that are not specifically incorporated by reference in such
documents). Requests for such copies should be directed to Hawker Pacific
Aerospace, 11240 Sherman Way, Sun Valley, California 91352, Attention: Phil
Panzera, telephone number (818) 765-6201.
FORWARD LOOKING STATEMENTS
This prospectus contains so-called forward-looking statements within the
meaning of the federal securities laws. These include statements about our
expectations, beliefs, intentions or strategies for the future, which we
indicate by words or phrases such as "anticipate," "expect," "intend,"
"plan," "will," "we believe," "management believes" and similar language. All
forward-looking statements are based on our current expectations and are
subject to certain risks, uncertainties and assumptions. Our actual results
may differ materially from results anticipated in these forward-looking
statements. We base our forward-looking statements on information currently
available to us, and we assume no obligation to update them.
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION SET FORTH IN THIS PROSPECTUS,
INVESTORS SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS WHEN
EVALUATING AN INVESTMENT IN THE SHARES OFFERED HEREBY.
AVIATION INDUSTRY RISKS
The Company derives all of its sales and operating income from the
services and parts that it provides to its customers in the aviation
industry. Therefore, the Company's business is directly affected by economic
factors and other trends that affect its customers in the aviation industry,
including a possible decrease in aviation activity, a decrease in outsourcing
by aircraft operators or the failure of projected market growth to
materialize or continue. When such economic and other factors adversely
affect the aviation industry, they tend to reduce the overall demand for the
Company's products and services, thereby decreasing the Company's sales and
operating income.
FLUCTUATIONS IN RESULTS OF OPERATIONS
The Company's operating results are affected by a number of factors,
including the timing of orders for the repair and overhaul of landing gear
and fulfillment of such contracts, the timing of expenditures to manufacture
parts and purchase inventory in anticipation of future services and sales,
parts shortages that delay work in progress, general economic conditions and
other factors. Although the Company has secured several long-term agreements
to service multiple aircraft, the Company receives sales under these
agreements only when it actually performs a repair or overhaul. Because the
average time between landing gear overhauls is seven years, the work orders
that the Company receives and the number of repairs or overhauls that the
Company performs in particular periods may vary significantly causing the
Company's quarterly sales and results of operations to fluctuate
substantially. The Company is unable to predict the timing of the actual
receipt of such orders and, as a result, significant variations between
forecasts and actual orders will often occur. In addition, the Company's need
to make significant expenditures to support new aircraft in advance of
generating revenues from repairing or overhauling such aircraft may cause the
Company's quarterly operating results to fluctuate. Furthermore, the
rescheduling of the shipment of any large order, or portion thereof, or any
production difficulties or delays by the Company, could have a material
adverse effect on the Company's quarterly operating results.
RISKS RELATING TO ACQUISITION STRATEGY; ESTABLISHMENT OF UNITED KINGDOM
OPERATIONS
The Company may attempt to grow by acquiring service and parts providers
whose operations or inventories complement or expand the Company's existing
repair and overhaul businesses, or whose strategic locations enable the
Company to expand into new geographic markets. The Company's ability to grow
by acquisition depends upon, and may be limited by, the availability of
suitable acquisition candidates and the Company's capital resources.
Acquisitions involve risks that could adversely affect the Company's
operating results, including the assimilation of the operations and personnel
of acquired companies, the amortization of acquired intangible
3
assets and the loss of key employees of acquired companies. Although the
Company investigates the operations and assets that it acquires, there may be
liabilities that the Company fails or is unable to discover, and for which
the Company as a successor owner or operator may be liable. In addition,
costs and charges, including legal and accounting fees and reserves and
write-downs relating to an acquisition, may be incurred by the Company or may
be reported in connection with any such acquisition. The Company evaluates
acquisition opportunities from time to time, but the Company has not entered
into any commitments or binding agreements to date, except with respect to
the BA Acquisition. There can be no assurance that the Company will be able
to consummate acquisitions on satisfactory terms, or at all, or that it will
be successful in integrating any such acquisitions into its operations. The
Company had no history or experience operating in the United Kingdom prior to
the BA acquisition.
RISKS ASSOCIATED WITH EXPANSION OF INTERNATIONAL OPERATIONS
The Company's growth strategy is based in large part on the Company's
ability to expand its international operations, which will require
significant management attention and financial resources. The Company
currently has a subsidiary in the United Kingdom and a division in the
Netherlands. There can be no assurance that the Company's efforts to expand
operations internationally will be successful. In addition, international
operations are subject to a number of risks, including longer accounts
receivable collection periods and greater difficulty in accounts receivable
collections, unexpected changes in regulatory requirements, foreign currency
fluctuations, import and export restrictions and tariffs, difficulties and
costs of staffing and managing foreign operations, potentially adverse tax
consequences, political instability, the burdens of complying with multiple,
potentially conflicting laws and the impact of business cycles and economic
instability outside the United States.
The Company's sales are principally denominated in United States dollars
and British pounds, and to a lesser extent in Dutch guilders. The Company
makes substantial inventory purchases in French francs from such suppliers as
Messier-Bugatti, Societe D'Applications Des Machines Motrices and Eurocopter
France. The Company's Netherlands facility's inventory purchases are
primarily United States dollar denominated, while sales and operating
expenses are partially denominated in Dutch guilders. To date, the Company's
business has not been significantly affected by currency fluctuations or
inflation. Fluctuations in currency exchange rates could cause the Company's
products to become relatively more expensive in particular countries, leading
to a reduction in sales in that country.
SUBSTANTIAL COMPETITION
Numerous companies compete with the Company in the aviation services
industry. The Company expects that competition in its industry will increase
substantially as a result of industry consolidations and alliances in
response to the trend in the aviation industry toward outsourcing of repair
and overhaul services. In addition, as the Company moves into new geographic
or product markets it will encounter new competition.
The Company believes that the primary competitive factors in its
marketplace are quality, price, rapid turnaround time and industry
experience. Certain of the Company's competitors have substantially greater
financial, technical, marketing and other resources than the Company. These
competitors may have the ability to adapt more quickly to changes in customer
requirements, may have stronger customer relationships and greater name
recognition and may devote greater resources to the development, promotion
and sale of their products than the Company. There can be no assurance that
competitive pressures will not materially and adversely affect the Company's
business, financial condition or results of operations.
GOVERNMENT REGULATION
The Company's operations are regularly audited and accredited by the
Coordinating Agency for Supplier Evaluation, formed by commercial airlines to
approve FAA approved repair stations and aviation parts suppliers. If
material authorizations or approvals are revoked or suspended, the Company's
operations will be materially and adversely affected. As the Company attempts
to commence operations in countries in which it has not previously operated,
it will need to obtain new certifications and approvals. In addition, if new
and more stringent regulations are adopted by foreign or domestic regulatory
agencies, or oversight of the aviation industry is increased in the future,
the Company's business may be adversely affected.
DEPENDENCE ON KEY SUPPLIERS
The Company purchases landing gear spare parts and components for a
variety of fixed wing aircraft and helicopters. The Company has separate
10-year agreements that each expire in October 2006 with: (i) Dunlop
4
Limited, Aviation Division; (ii) Dunlop Limited, Precision Rubber; and (iii)
Dunlop Equipment Division. Under two of these agreements, the Company
purchases discounted parts for resale and repair from Dunlop. For the years
ended December 31, 1998 and 1997, Dunlop accounted for approximately
$4,513,000 and $4,301,000, respectively, of the spare parts and components
that the Company purchased in such periods. Failure by any one of these
divisions of Dunlop to renew its agreement on similar terms when it expires
could have a material adverse affect on the Company's business. The Company's
single largest supplier during 1998 was Boeing, who provided the Company
$13,000,000 of spares parts and components.
In addition, the Company has agreements with Messier-Bugatti, SAMM and
Eurocopter France that enable the Company to purchase new aircraft parts at
discounts from list price. Many of the Company's supplier agreements, other
than its agreements with Dunlop, are short-term and can be terminated by the
supplier upon providing ninety days prior written notice. A decision by any
of these suppliers to terminate their agreements would reduce the competitive
advantage the Company derives therefrom.
CUSTOMER CONCENTRATION
American Airlines, British Airways, Federal Express and the USCG have
been the only customers accounting for more than 10% of sales during the last
three years.
CONCENTRATION OF CREDIT RISK
At December 31, 1998, 10.2%, 25.7% and 19.4% of the Company's total
accounts receivable were associated with American Airlines, British Airways
and Federal Express, respectively. At December 31, 1997, 13.1%, 18.9% and
6.1% of the Company's total accounts receivable were associated with American
Airlines, Federal Express and British Airways, respectively. At December 31,
1996, 7.4% and 9.3% of the Company's total accounts receivable were
associated with Federal Express and the USCG, respectively.
Write-offs against accounts receivable have been one-twentieth of one
percent in 1998, and two-tenths of one percent in 1997. The Company can not
provide any assurance that such favorable bad debt experience will continue.
ENVIRONMENTAL REGULATIONS
The Company's operations are subject to extensive and frequently
changing federal, state and local environmental laws and substantial related
regulation by government agencies, including the EPA, the California
Environmental Protection Agency and the United States Occupational Safety and
Health Administration. Among other matters, these regulatory authorities
impose requirements that regulate the operation, handling, transportation and
disposal of hazardous materials generated by the Company during the normal
course of its operations, govern the health and safety of the Company's
employees and require the Company to obtain and maintain permits in
connection with its operations. This extensive regulatory framework imposes
significant compliance burdens and risks on the Company and, as a result,
substantially affects its operational costs. In addition, the Company may
become liable for the cost of removal or remediation of certain hazardous
substances released on or in its facilities without regard to whether the
Company knew of, or caused, the release of such substances. The Company
believes that it currently is in material compliance with applicable laws and
regulations and is not aware of any material environmental problem at any of
its current or former facilities. There can be no assurance, however, that
its prior activities did not create a material problem for which the Company
could be responsible or that future uses or conditions (including, without
limitation, changes in applicable environmental laws and regulation, or an
increase in the amount of hazardous substances generated by the Company's
operations) will not result in material environmental liability to the
Company and materially and adversely affect the Company's financial condition
and results of operations. The Company's plating operations, which use a
number of hazardous materials and generate a significant volume of hazardous
waste, increase the Company's regulatory compliance burden and compound the
risk that the Company may encounter a material environmental problem in the
future. Furthermore, compliance with laws and regulations in foreign
countries in which the Company locates its operations may cause future
increases in the Company's operating costs or otherwise adversely affect the
Company's results of operations or financial condition.
PRODUCT LIABILITY RISKS
The Company's business exposes it to possible claims for personal
injury, death or property damage which may result from the failure or
malfunction of landing gears, hydromechanical components or aircraft spare
parts repaired or overhauled by the Company. Many factors beyond the
Company's control could lead to liability claims, including the failure of
the aircraft on which landing gear or hydromechanical components
5
overhauled by the Company is installed, the reliability of the customer's
operators of the aircraft and the maintenance of the aircraft by the
customer. The Company currently has in force aviation products liability and
premises insurance, which the Company believes provides coverage in amounts
and on terms that are generally consistent with industry practice. The
Company has not experienced any material product liability claims related to
its products. There can be no assurance that the amount of product liability
insurance that the Company carries at the time a product liability claim is
be made will be sufficient to protect the Company.
DEPENDENCE ON KEY PERSONNEL
The continued success of the Company depends to a large degree upon the
services of certain of its executive officers and upon the Company's ability
to attract and retain qualified managerial and technical personnel
experienced in the various operations of the Company's business. Loss of the
services of such employees, particularly David Lokken, President and Chief
Executive Officer; Philip Panzera, Executive Vice President; Dennis Biety,
Managing Director of Hawker Pacific Aerospace Ltd.; Brian Carr, Managing
Director of Sun Valley Operations; or Michael Riley, Vice President-Sales and
Marketing, could adversely affect the operations of the Company.
The Company has entered into employment agreements expiring in 2001 with
Messrs. Lokken and Panzera, and 2003 with Mr. Biety. Messrs. Carr and Riley
have employment agreements with the Company which expire on October 31, 2000.
RISK ASSOCIATED WITH FACILITIES REORGANIZATION
The Company's UK subsidiary has relocated to a new facility in 1999. The
Company believes it has moved the facility with a minimum of disruption,
although operations have been affected by the move.
The Company is in the process of expanding its plating operations at its
Sun Valley facility. This expansion is not expected to be completed until
sometime in 2000. The plating shop of the UK operation is not scheduled to be
completed until the end of December 1999. Any failure or delay in the
expansion or relocation of these plating operations could impair the
Company's ability to service its customers.
YEAR 2000 COMPLIANCE
The year 2000 problem is the result of computer programs being written
using two digits (rather than four) to define the applicable year. Any of the
Company's programs that have time-sensitive software may recognize a date
using "00" as the year 1900 rather than the year 2000, which could result in
miscalculation or system failures. The Company believes that its mainframe
database and operating systems are year 2000 compliant. In addition, the
Company is working with its external suppliers, vendors and service providers
to ensure that their systems will be able to support and interact with the
Company's server and network. The total costs incurred to address the
Company's year 2000 issues during 1999 approximate $200,000. However, if the
Company, its customers or vendors are unable to resolve such processing
issues in a timely manner, it could have a material adverse impact on the
Company's business, financial condition and results of operations.
Accordingly, the Company plans to devote the necessary resources to becoming
year 2000 compliant in a timely manner.
USE OF PROCEEDS
We will bear the costs and expenses of registering the shares offered by
the selling securityholders, which are estimated at $42,500. Other than the
exercise of the warrants described herein (to the extent they may be
exercised), we will not receive any of the proceeds from the sale of the
shares offered by the selling securityholders. The holders of the warrants
are not obligated to exercise the warrants, and there can be no assurance
that they will choose to do so. If all of the warrants are exercised in full,
we will receive $2,854,228 upon exercise.
The Company intends to use any proceeds it receives from the exercise of
warrants for working capital and general corporate purposes.
6
SELLING SECURITYHOLDERS
RECENT FINANCING
Deephaven Private Placement Trading Ltd. ("Deephaven") purchased an
aggregate of $3 million of 8% Series C Convertible Preferred Stock and
warrants from the Company in a private placement transaction which closed on
December 10, 1999. As part of that private placement, Deephaven was issued
preferred stock that may be converted into our common stock and warrants to
acquire 125,000 shares of our common stock ("Deephaven Warrants"). The
preferred stock and the Deephaven Warrants are described in more detail under
"Description of Our Capital Stock." Holders of the preferred stock and the
Deephaven Warrants are prohibited from using them to convert into and acquire
shares of our common stock to the extent that such conversion or acquisition
would result in such holder, together with any affiliate thereof,
beneficially owning in excess of 4.999% of the outstanding shares of our
common stock following such conversion or acquisition. This restriction may
be waived by the holder on not less than 61 days' notice to the Company.
Since the number of shares of our common stock issuable upon conversion of
the preferred stock will change based upon fluctuations of the market price
of our common stock prior to a conversion, the actual number of shares of our
common stock that will be issued under the preferred stock, and consequently
the number of shares of our common stock that will be beneficially owned by
Deephaven, cannot be determined at this time. Because of this fluctuating
characteristic, the Company has agreed to register a number of shares of our
common stock that exceeds the number of shares beneficially owned by
Deephaven. The number of shares of our common stock listed in the table below
as being beneficially owned by Deephaven includes the shares of our common
stock that are issuable to them, subject to the 4.999% limitation, upon
conversion of their preferred stock and exercise of the Deephaven Warrants.
However, the 4.999% limitation would not prevent Deephaven from acquiring and
selling in excess of 4.999% of our common stock through a series of
conversions and sales under the preferred stock and acquisitions and sales
under the warrants.
In connection with this financing, warrants to purchase 50,000 shares of
our common stock at $2.85 per share ("Brighton Warrants") were issued to
Brighton Capital, Ltd., which are also being registered in this prospectus.
IPO WARRANTS
In connection with our initial public offering in 1998, we issued
warrants to purchase up to 222,716 of our shares of common stock ("IPO
Warrants") to the underwriters in that offering. The holders of the IPO
Warrants are registering the shares underlying the warrants pursuant to their
piggyback registration rights.
SELLING SECURITYHOLDER TABLE
The following table sets forth certain information regarding the
beneficial ownership of our common stock by the selling securityholders on
December 22, 1999. To our knowledge, each of the selling securityholders has
sole voting and investment power with respect to the shares of common stock
shown, subject to applicable community property laws.
BENEFICIAL OWNERSHIP BENEFICIAL OWNERSHIP
BEFORE OFFERING(1) AFTER OFFERING (1)
-------------------------- NUMBER OF ----------------------
NUMBER OF SHARES NUMBER OF
SELLING SECURITYHOLDER SHARES PERCENT(2) BEING OFFERED SHARES PERCENT(2)
- ---------------------- ------------- ----------- ------------- --------- ----------
Everen Securities, Inc./First Union 111,722(3) 1.9% 111,722 -0- --
Securities, Inc.
David Enzer 48,315(3)(4) * 48,315 -0- --
Basil Horner 12,000(3) * 12,000 -0- --
The Seidler Companies Incorporated 13,929(3) * 13,929 -0- --
Kerry Cotter 41,750(3) * 41,750 -0- --
Deephaven Private Placement Trading Ltd. 291,053 4.76% 1,558,881 -0- --
Brighton Capital Ltd.(4) 45,000 * 45,000 -0- --
7
- -----------------------
* Less than one percent.
(1) Beneficial ownership is determined in accordance with the rules of the
Commission and generally includes voting or investment power with respect
to securities. Shares of common stock subject to options, warrants and
convertible securities currently exercisable or convertible, or
exercisable or convertible within 60 days, are deemed outstanding,
including for purposes of computing the percentage ownership of the
person holding such option, warrant or convertible security, but not for
purposes of computing the percentage of any other holder.
(2) Included as outstanding for this purpose are 5,822,222 shares outstanding
on December 22, 1999, plus, in the case of each of these selling
securityholders, the shares issuable upon exercise and conversion of the
warrants and/or shares of convertible preferred stock held by such
selling securityholder (but not including shares issuable upon exercise
or conversion of any other warrants, convertible preferred stock or other
securities held by any other person).
(3) Issuable upon exercise of warrants.
(4) Brighton Capital Ltd. transferred 5,000 Brighton Warrants to David Enzer.
PLAN OF DISTRIBUTION
The Selling Stockholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their
shares of Common Stock on any stock exchange, market or trading facility on
which the shares are traded or in private transactions. These sales may be at
fixed or negotiated prices. The Selling Stockholders may use any one or more
of the following methods when selling shares:
- - ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- - block trades in which the broker-dealer will attempt to sell the shares
as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
- - purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
- - an exchange distribution in accordance with the rules of the applicable
exchange;
- - privately negotiated transactions;
- - short sales;
- - broker-dealers may agree with the Selling Stockholders to sell a
specified number of such shares at a stipulated price per share;
- - a combination of any such methods of sale; and
- - any other method permitted pursuant to applicable law.
The Selling Stockholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
The Selling Stockholders may also engage in short sales against the box,
puts and calls and other transactions in securities of the Company or
derivatives of Company securities and may sell or deliver shares in
connection with these trades. The Selling Stockholders may pledge their
shares to their brokers under the margin provisions of customer agreements.
If a Selling Stockholder defaults on a margin loan, the broker may, from time
to time, offer and sell the pledged shares.
Broker-dealers engaged by the Selling Stockholders may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the Selling Stockholders (or, if any
broker-dealer acts as agent for the purchaser of shares, from the purchaser)
in amounts to be negotiated. The Selling Stockholders do not expect these
commissions and discounts to exceed what is customary in the types of
transactions involved.
The Selling Stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such
8
event, any commissions received by such broker-dealers or agents and any
profit on the resale of the shares purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.
The Company is required to pay all fees and expenses incident to the
registration of the shares, including fees and disbursements of counsel to
the Selling Stockholders. The Company has agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities,
including liabilities under the Securities Act.
DESCRIPTION OF OUR CAPITAL STOCK
As of the date of this Prospectus, the authorized capital stock of the
Company consists of 20,000,000 shares of Common Stock, no par value, and
5,000,000 shares of preferred stock, no par value.
COMMON STOCK
As of December 22, 1999, 5,822,222 shares of Common Stock were
outstanding, held of record by 34 registered shareholders. The holders of
Common Stock are entitled to one vote for each share held of record on all
matters submitted to a vote of the shareholders and may cumulate their votes
in the election of directors upon giving notice required by law. Subject to
preferences that may be applicable to any shares of Preferred Stock issued in
the future, holders of Common Stock are entitled to receive ratably such
dividends as may be declared by the Board of Directors out of funds legally
available therefore. The Company's shareholders currently may cumulate their
votes for the election of directors so long as at least one shareholder has
given notice at the meeting of shareholders prior to the voting of that
shareholder's desire to cumulate his or her votes. Cumulative voting means
that in any election of directors, each shareholder may give one candidate a
number of votes equal to the number of directors to be elected multiplied by
the number of shares held by such shareholder, or such shareholder may
distribute such number of votes among as many candidates as the shareholder
sees fit. Cumulative voting will no longer be required or permitted under the
Amended and Restated Articles of Incorporation, as amended (the "Amended
Articles") at such time as (i) the Company's shares of Common Stock are
listed on the Nasdaq National Market and the Company has at least 800 holders
of its equity securities as of the record date of the Company's most recent
annual meeting of shareholders or (ii) the Company's shares of Common Stock
are listed on the New York Stock Exchange or the American Stock Exchange. At
that time, the Company may divide its Board into classes of directors. In the
event of a liquidation, dissolution or winding up of the Company, holders of
the Common Stock are entitled to share ratably with the holders of any then
outstanding Preferred Stock in all assets remaining after payment of
liabilities and the liquidation preference of any then outstanding Preferred
Stock. Holders of Common Stock have no preemptive rights and no right to
convert their Common Stock into any other securities. There are no redemption
or sinking fund provisions applicable to the Common Stock. All outstanding
shares of Common Stock are, and all shares of Common Stock issued by the
Company in the initial public offering are, fully paid and nonassessable.
PREFERRED STOCK
The Board of Directors has authority to fix the rights, preferences,
privileges and restrictions, including voting rights, of those shares without
any future vote or action by the shareholders. The rights of the holders of
the Common Stock will be subject to, and may be adversely affected by, the
rights of the holders of any preferred stock that may be issued in the
future. The issuance of preferred stock could have the effect of making it
more difficult for a third party to acquire a majority of the outstanding
voting stock of the Company, thereby delaying, deferring or preventing a
change in control of the Company. Furthermore, such preferred stock may have
other rights, including economic rights senior to the common stock, and, as a
result, the issuance thereof could have a material adverse effect on the
market value of the Common Stock.
SERIES B
In March 1999, the Company adopted a Rights Agreement and in connection
therewith, created a Series B Junior Participating Preferred Stock. No shares
of Series B Junior Participating Preferred Stock are currently outstanding.
SERIES C
In connection with the $3,000,000 financing, we issued 300 shares of 8%
Series C Convertible Preferred Stock to Deephaven. The Series C is senior to
the Series B and the common stock in dividends and liquidation. The Series C
is convertible into common stock at fluctuating conversion rates, including
rates
9
that are below fair market value based upon a formula contained in the
Certificate of Determination for the Series C. In addition, the Series C is
redeemable under certain circumstances.
Deephaven, one of the Selling Securityholders, together with any
affiliate thereof, may not beneficially own shares of Common Stock in excess
of 4.999% of the outstanding shares of Common Stock following a conversion of
preferred stock and exercise of warrants. Such restrictions may be waived by
the Selling Securityholders as to itself upon not less than 61 days' notice
to the Company.
WARRANTS
We have issued and outstanding IPO Warrants to purchase up to 222,716
shares of common stock at $8 per share; Brighton Warrants to purchase up to
50,000 shares of common stock at $2.85 per share; and Deephaven Warrants to
purchase up to 125,000 shares of common stock at $7.37 per share. All of the
warrants contain net exercise provisions.
STOCK TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Company's Common Stock is U.S.
Stock Transfer Corporation, Glendale, California.
LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
The Company's Amended Articles provide that, pursuant to the California
Corporations Code, the liability of the directors of the Company for monetary
damages shall be eliminated to the fullest extent permissible under
California law. This is intended to eliminate the personal liability of a
director for monetary damages in an action brought by, or in the right of,
the Company for breach of a director's duties to the Company or its
shareholders. This provision in the Amended Articles does not eliminate the
directors' fiduciary duty and does not apply for certain liabilities: (i) for
acts or omissions that involve intentional misconduct or a knowing and
culpable violation of law; (ii) for acts or omissions that a director
believes to be contrary to the best interest of the Company or its
shareholders or that involve the absence of good faith on the part of the
director; (iii) for any transaction from which a director derived an improper
personal benefit; (iv) for acts or omissions that show a reckless disregard
for the director's duty to the Company or its shareholders in circumstances
in which the director was aware, or should have been aware, in the ordinary
course of performing a director's duties, of a risk of serious injury to the
Company or its shareholders; (v) for acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of the
director's duty to the Company or its shareholders; (vi) with respect to
certain transactions or the approval of transactions in which a director has
a material financial interest; and (vii) expressly imposed by statute for
approval of certain improper distributions to shareholders or certain loans
or guarantees. This provision also does not limit or eliminate the rights of
the Company or any shareholder to seek non-monetary relief such as an
injunction or rescission in the event of a breach of a director's duty of
care. The Company's Amended and Restated Bylaws require the Company to
indemnify its officers and directors to the full extent permitted by law,
including circumstances in which indemnification would otherwise be
discretionary. Among other things, the Bylaws require the Company to
indemnify directors and officers against certain liabilities that may arise
by reason of their status or service as directors and officers and allows the
Company to advance their expenses incurred as a result of any proceeding
against them as to which they could be indemnified.
The Company believes that it is the position of the Commission that
insofar as the foregoing provision may be invoked to disclaim liability for
damages arising under the Securities Act, the provision is against public
policy as expressed in the Securities Act and is therefore unenforceable.
Such limitation of liability also does not affect the availability of
equitable remedies such as injunctive relief or rescission.
The Company has entered into indemnification agreements ("Indemnification
Agreement(s)") with each of its directors and executive officers. Each such
Indemnification Agreement provides that the Company will indemnify the
indemnitee against expenses, including reasonable attorneys' fees, judgments,
penalties, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with any civil or criminal action or
administrative proceeding arising out of the performance of his duties as a
director or officer, other than an action instituted by the director or
officer. Such indemnification is available if the indemnitee acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal action, had
no reasonable cause to believe his conduct was unlawful. The Indemnification
Agreements require that the Company indemnify the director or other party
thereto in all cases to the fullest extent permitted by applicable law. Each
Indemnification Agreement permits the director or officer that is party
thereto to bring suit to seek recovery of amounts due under the
Indemnification Agreement and to recover the expenses of such a suit if he is
successful. Insofar as
10
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the
opinion of the Commission, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable. The Company
believes that its Amended Articles and Bylaw provisions are necessary to
attract and retain qualified persons as directors and officers.
The Company has been informed that, in the opinion of the Securities and
Exchange Commission (the "Commission"), indemnification provisions such as
the foregoing are against public policy as expressed in the Securities Act
and are therefore unenforceable with respect to claims arising under federal
securities laws.
LEGAL MATTERS
The validity of the securities offered hereby has been passed upon by
Troy & Gould Professional Corporation, Los Angeles, California.
EXPERTS
The financial statements of Hawker Pacific Aerospace, as the predecessor
and successor companies, as of December 31, 1997 and 1998 and the related
statements of operations, stockholders' equity and cash flows for the ten
months ended October 31, 1996, the two months ended December 31, 1996 and the
years ended December 31, 1997 and 1998, incorporated by reference in this
prospectus and registration statement have been audited by Ernst & Young,
LLP, independent auditors, as set forth in their report, incorporated herein
by reference. We have incorporated herein by reference our financial
statements in the prospectus and registration statement in reliance on Ernst
& Young's report, given on their authority as experts in auditing and
accounting.
11
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION
OR MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, IN
CONNECTION WITH THE OFFERING HEREBY, AND, IF GIVEN OR MADE, SUCH INFORMATION AND
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR ANY SELLING SECURITYHOLDER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES TO ANY PERSON IN ANY
STATE OR OTHER JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY OR THE FACTS HEREIN SET FORTH SINCE THE DATE HEREOF.
---------------
TABLE OF CONTENTS
PAGE
The Company.......................................2
Available Information.............................2
Incorporation of Certain
Documents by Reference.........................2
Forward Looking Statements........................3
Risk Factors......................................3
Use of Proceeds...................................6
Selling Securityholders...........................7
Plan of Distribution..............................8
Description of Our Capital Stock..................9
Legal Matters....................................11
Experts..........................................11
COMMON STOCK
HAWKER PACIFIC AEROSPACE
1,831,597 SHARES
------------
PROSPECTUS
------------
January __, 2000
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The Company estimates that expenses in connection with the distributions
described in this Registration Statement will be as set forth below. Such costs
and expenses shall be borne by the Company. Any commissions, discounts and
transfer taxes, if any, attributable to the sales of the shares being registered
hereunder will be borne by the Selling Securityholders.
SEC registration fee ............................. $ 3,296
Nasdaq filing .................................... $17,500
Printing expenses ................................ $ 1,000
Accounting fees and expenses ..................... $ 3,000
Legal fees and expenses .......................... $15,000
Miscellaneous .................................... $ 2,704
-------
Total $42,500
-------
-------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Amended and Restated Articles of Incorporation, as amended
("Amended Articles") provide that, pursuant to the California Corporations
Code, the liability of the directors of the Company for monetary damages
shall be eliminated to the fullest extent permissible under California law.
This is intended to eliminate the personal liability of a director for
monetary damages in an action brought by, or in the right of, the Company for
breach of a director's duties to the Company or its shareholders. This
provision in the Amended Articles does not eliminate the directors' fiduciary
duty and does not apply for certain liabilities: (i) for acts or omissions
that involve intentional misconduct or a knowing and culpable violation of
law; (ii) for acts or omissions that a director believes to be contrary to
the best interest of the Company or its shareholders or that involve the
absence of good faith on the part of the director; (iii) for any transaction
from which a director derived an improper personal benefit; (iv) for acts or
omissions that show a reckless disregard for the director's duty to the
Company or its shareholders in circumstances in which the director was aware,
or should have been aware, in the ordinary course of performing a director's
duties, of a risk of serious injury to the Company or its shareholders; (v)
for acts or omissions that constitute an unexcused pattern of inattention
that amounts to an abdication of the director's duty to the Company or its
shareholders; (vi) with respect to certain transactions or the approval of
transactions in which a director has a material financial interest; and (vii)
expressly imposed by statute for approval of certain improper distributions
to shareholders or certain loans or guarantees. This provision also does not
limit or eliminate the rights of the Company or any shareholder to seek
non-monetary relief such as an injunction or rescission in the event of a
breach of a director's duty of care. The Company's Amended and Restated
Bylaws require the Company to indemnify its officers and directors to the
full extent permitted by law, including circumstances in which
indemnification would otherwise be discretionary. Among other things, the
Bylaws require the Company to indemnify directors and officers against
certain liabilities that may arise by reason of their status or service as
directors and officers and allows the Company to advance their expenses
incurred as a result of any proceeding against them as to which they could be
indemnified.
The Company believes that it is the position of the Commission that
insofar as the foregoing provision may be invoked to disclaim liability for
damages arising under the Securities Act, the provision is against public
policy as expressed in the Securities Act and is therefore unenforceable.
Such limitation of liability also does not affect the availability of
equitable remedies such as injunctive relief or rescission.
The Company has entered into indemnification agreements
("Indemnification Agreement(s)") with each of its directors and executive
officers. Each such Indemnification Agreement provides that the Company will
indemnify the indemnitee against expenses, including reasonable attorneys'
fees, judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any civil or criminal action or
administrative proceeding arising out of the performance of his duties as a
director or officer, other than an action instituted by the director or
officer. Such indemnification is available if the indemnitee acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal action, had
no reasonable cause to believe his conduct was unlawful. The Indemnification
Agreements require that the Company indemnify the director or other party
thereto in all cases to the fullest extent permitted by applicable law. Each
Indemnification
II-1
Agreement permits the director or officer that is party thereto to bring suit
to seek recovery of amounts due under the Indemnification Agreement and to
recover the expenses of such a suit if he is successful. Insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the
opinion of the Commission, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable. The Company
believes that its Amended Articles and Bylaw provisions are necessary to
attract and retain qualified persons as directors and officers.
ITEM 16. EXHIBITS
The following exhibits are filed herewith or incorporated by reference
as a part of this Registration Statement:
3 Certificate of Determination for 8% Series C Convertible Preferred
Stock as filed with the California Secretary of State on December
9, 1999.*
4.1 Copy of Warrant to purchase 50,000 shares issued to Brighton
Capital, Ltd. dated December 10, 1999.*
4.2 Copy of Warrant to purchase 125,000 shares issued to Deephaven
Private Placement Trading Ltd. dated December 10, 1999.*
5 Opinion of Troy & Gould Professional Corporation.*
10.1 Convertible Preferred Stock Purchase Agreement dated December 10,
1999 between the Company and Deephaven Private Placement Trading
Ltd. (to be filed by amendment).
10.2 Registration Rights Agreement dated December 10, 1999 between the
Company and Deephaven Private Placement Trading Ltd.*
23.1 Consent of Troy & Gould Professional Corporation (included in
Exhibit 5).*
23.2 Consent of Ernst & Young LLP*.
24 Power of Attorney (included on page II-5 hereof).*
- ------------------------------------
* Included herewith.
ITEM 17. UNDERTAKINGS
(a) The undersigned Company 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;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in this registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
II-2
provided, however, that (i) and (ii) do not apply if the registration
statement is on Form S-3, and the information required to be included in a
post-effective amendment is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, 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.
(b) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
annual report pursuant to section 13(a) or section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has 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 the Company of expenses incurred or paid
by a director, officer or controlling person of the 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, the
Company 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.
(d) The undersigned Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, 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, 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-3
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 on Form S-3 and has duly caused this
Registration Statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Sun Valley, State of
California, on December 21, 1999.
HAWKER PACIFIC AEROSPACE
By: /s/ David Lokken
-------------------------------------
David Lokken
President and Chief Executive Officer
II-4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David Lokken, Phil Panzera and Dan Lubeck, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place, and stead,
in any and all capacities, to sign any and all amendments (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 attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute or 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 on behalf
of the registrant and in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Dan Lubeck Chairman of the Board December 21, 1999
- --------------------------------------------
Daniel J. Lubeck
/s/ David L. Lokken Chief Executive Officer (Principal December 21, 1999
- -------------------------------------------- Executive Officer), President and
David L. Lokken Director
/s/ Philip Panzera Executive Vice President December 21, 1999
- -------------------------------------------- (Principal Financial and Accounting
Philip Panzera Officer)
/s/ Scott W. Hartman Director December 21, 1999
- --------------------------------------------
Scott W. Hartman
/s/ John G. Makoff Director December 21, 1999
- --------------------------------------------
John G. Makoff
/s/ Daniel C. Toomey, Jr. Director December 21, 1999
- --------------------------------------------
Daniel C. Toomey, Jr.
/s/ Mellon C. Baird Director December 21, 1999
- --------------------------------------------
Mellon C. Baird
/s/ Joel F. McIntyre Director December 21, 1999
- --------------------------------------------
Joel F. McIntyre
II-5
EXHIBIT INDEX
EXHIBIT
NUMBER
-------
3 Certificate of Determination for 8% Series C Convertible Preferred
Stock as filed with the California Secretary of State on December
9, 1999.*
4.1 Copy of Warrant to purchase 50,000 shares issued to Brighton
Capital, Ltd. dated December 10, 1999.*
4.2 Copy of Warrant to purchase 125,000 shares issued to Deephaven
Private Placement Trading Ltd. dated December 10, 1999.*
5 Opinion of Troy & Gould Professional Corporation.*
10.1 Convertible Preferred Stock Purchase Agreement dated December 10,
1999 between the Company and Deephaven Private Placement Trading
Ltd. (to be filed by amendment).
10.2 Registration Rights Agreement dated December 10, 1999 between the
Company and Deephaven Private Placement Trading Ltd.*
23.1 Consent of Troy & Gould Professional Corporation (included in
Exhibit 5).*
23.2 Consent of Ernest & Young, LLP.*
24 Power of Attorney (included on page II-5 hereof).*
- --------------------
* Included herewith.
II-6