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As filed with the Securities and Exchange Commission on December 20, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
AFTERMARKET TECHNOLOGY CORP.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 95-4486486
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
33309 FIRST WAY SOUTH, SUITE A-206 98003
FEDERAL WAY, WASHINGTON (Zip Code)
(Address of Principal Executive Offices)
1996 STOCK INCENTIVE PLAN
and
HARTNETT WARRANT
(Full Title of the Plans)
STEPHEN J. PERKINS
CHIEF EXECUTIVE OFFICER
AFTERMARKET TECHNOLOGY CORP.
33309 FIRST WAY SOUTH, SUITE A-206
FEDERAL WAY, WASHINGTON 98003
(206) 838-0346
(Name, Address, Including Zip Code, and Telephone Number, Including Area
Code, of Agent for Service)
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Copies to:
BRUCE D. MEYER, ESQ.
GIBSON, DUNN & CRUTCHER LLP
333 SOUTH GRAND AVENUE
LOS ANGELES, CALIFORNIA 90071-3197
(213) 229-7000
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<TABLE>
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) FEE
<S> <C> <C> <C> <C>
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Common Stock, par value
$.01 per share. . . . . . 2,470,176 N/A $8,144,891 $2,469
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(1) Of the 2,470,176 shares of Common Stock being registered
hereunder, up to (i) 2,400,000 of the shares are reserved for issuance
pursuant to the 1996 Stock Incentive Plan (the "1996 Plan") and
(ii) 70,176 of the shares are reserved for issuance pursuant to the
Warrant Agreement, dated as of December 20, 1996, between Michael
J. Hartnett and Aftermarket Technology Corp. (the "Hartnett
Warrant"). Pursuant to Rule 416, there also is being registered
such number of additional shares of Common Stock which may become
available for issuance pursuant to the foregoing 1996 Plan and
Hartnett Warrant in the event of certain changes in outstanding
shares, including reorganizations, recapitalizations, stock splits,
stock dividends and reverse stock splits.
(2) Estimated solely for the purpose of calculating the
registration fee. The registration fee has been calculated in
accordance with Rule 457(h) under the Securities Act of 1933 (a) in
the case of 127,782 shares registered with respect to options that are
available for award under the 1996 Plan, based upon the
average price of the Common Stock on December 17, 1996, which was
$15.6875; (b) in the case of 2,342,394 shares registered with
respect to options and warrants being granted under the 1996 Plan and
Hartnett Warrant, with an aggregate exercise price of $6,140,310,
based upon the price at which the options and warrants may be
exercised, which averages approximately $2.62 per share.
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1.PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
ITEM 2.REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated
in this Registration Statement by reference:
(1) The Registrant's latest prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"), that
contains audited financial statements for the Registrant's latest fiscal
year for which such statements have been filed;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since
the end of the fiscal year covered by Registrant's prospectus referred to
in (1) above;
(3) The description of the Common Stock set forth under the caption
"Description of Capital Stock" in the Registrant's registration
statement on Form 8-A, filed with the Commission on November 27, 1996,
File No. 000-21803, together with any amendment or report filed with the
Commission for the purpose of updating such description.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Exchange Act prior to
the filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all such securities
then remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of
such reports and documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of
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this Registration Statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such earlier
statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4.DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5.INTERESTS OF NAMED EXPERTS AND COUNSEL.
In 1994, in connection with the formation of the Registrant, certain
partners of Gibson, Dunn & Crutcher LLP acquired beneficial interests in
shares representing in the aggregate less than 1% of all outstanding Common
Stock at the same price per share paid by other purchasers of Common Stock on
or prior to that date.
ITEM 6.INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provision for the indemnification of officers and directors in terms
sufficiently broad to indemnify officers and directors of the Registrant
under certain circumstances from liabilities (including reimbursement for
expenses incurred) arising under the Securities Act. The Registrant's
Certificate of Incorporation and Bylaws provide, in effect, that, to the
fullest extent and under the circumstances permitted by Section 145 of the
DGCL, the Registrant will indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that he is a director or officer of the Registrant or
is or was serving at the request of the Registrant as a director or officer
of another corporation or enterprise. The Registrant may, in its discretion,
similarly indemnify its employees and agents. The Certificate of
Incorporation relieves its directors from monetary damages to the Registrant
or its stockholders for breach of such director's fiduciary duty as directors
to the fullest extent permitted by the DGCL. Under Section 102(b)(7) of the
DGCL, a corporation may relieve its directors from personal liability to such
corporation or its stockholders for monetary damages for any breach of their
fiduciary duty as directors except (i) for a breach of the duty of loyalty,
(ii) for failure to act in good faith, (iii) for intentional misconduct or
knowing violation of law, (iv) for willful or negligent violation of certain
provisions in the DGCL imposing certain requirements with respect to stock
repurchases, redemption and dividends, or (v) for any transactions from which
the director derived an improper personal benefit. Depending upon the
character of the proceeding, under Delaware law, the Registrant may indemnify
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred in connection with any
action, suit or proceeding if the person indemnified acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the best
interest of the Registrant, and, with respect to any criminal action or
proceeding, had no cause to believe his or her conduct was unlawful. To the
extent that a director or officer of the Registrant has been successful in
the defense of any action, suit or proceeding referred to above, the
Registrant will be obligated to indemnify him or her against expenses
(including attorneys' fees) actually and reasonably incurred in connection
therewith.
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ITEM 7.EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8.EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Registrant with the Commission, each of the following
exhibits is filed herewith:
5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP (independent auditors).
ITEM 9.UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) 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 the 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 the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more
than a 20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(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;
PROVIDED, HOWEVER, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
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(b) 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.
(c) 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.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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.
(3) Insofar as indemnification for liabilities arising under the
Securities Act 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 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 Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies
that it has reasonable grounds to believe that it meets all the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, there-unto duly authorized, in the
City of Federal Way, State of Washington, on this 20th day of December, 1996.
AFTERMARKET TECHNOLOGY CORP.
By: /s/
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Stephen J. Perkins
President and Chief Executive Officer
Each person whose signature appears below constitutes and appoints Stephen J.
Perkins and John C. Kent, and each of them, his true and lawful
attorney-in-fact, each with full power of substitution and resubstitution,
severally, 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 attorney-in-fact and
agent 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 fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, 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 by the following persons in the capacities and on
the dates indicated.
Signature Title Date
--------- ----- ----
/s/
- ------------------- President and Chief Executive December 20, 1996
Stephen J. Perkins Officer and Director (Principal
Executive Officer)
/s/
- ------------------- Chief Financial Officer (Principal December 20, 1996
John C. Kent Financial Officer)
/s/
- ------------------- Corporation Controller (Principal December 20, 1996
Daniel C. Buie Accounting Officer)
/s/
- ------------------- Chairman of the Board of Directors December 20, 1996
William A. Smith
/s/
- ------------------- Director December 20, 1996
Richard R. Crowell
/s/
- ------------------- Director December 20, 1996
Mark C. Hardy
/s/
- ------------------- Director December 20, 1996
Michael J. Hartnett
/s/
- ------------------- Director December 20, 1996
Kurt B. Larsen
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/s/
- ------------------- Director December 20, 1996
William E. Myers, Jr.
/s/
- ------------------- Director December 20, 1996
Richard K. Roeder
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on the signature pages of this
Registration Statement).
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Exhibit 5
December 20, 1996
C 00610-00001
Aftermarket Technology Corp.
33309 First Way South, Suite A-206
Federal Way, Washington 98003
Re: PROPOSED OFFERING OF UP TO 2,470,176 SHARES OF COMMON STOCK
Ladies and Gentlemen:
We refer to an aggregate of 2,470,176 shares of Common Stock, par value
$.01 per share, of Aftermarket Technology Corp., a Delaware corporation (the
"Company"), which are the subject of a registration statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended
(the "Act"). The shares of Common Stock (the "Shares") subject to the
Registration Statement are to be issued under the Company's 1996 Stock
Incentive Plan (the "Plan") and the Warrant Agreement, dated as of December
20, 1996, between Michael J. Hartnett and Aftermarket Technology Corp. (the
"Hartnett Warrant").
We have examined the original, or a photostatic or certified copy, of
such records of the Company, certificates of officers of the Company and of
public officials and such other documents as we have determined relevant and
necessary as the basis for the opinion set forth below. In such examination,
we have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon our examination mentioned above, we are of the opinion that
the Shares have been validly authorized for issuance and, when issued and
sold in accordance with the terms set forth in the Registration Statement,
the Plan and the Hartnett Warrant, and, when (a) the Registration Statement
has become effective under the Act, (b) the pertinent provisions of any
applicable state securities law have been complied with, and (c) in the case
of options issued under the Plan and the Hartnett Warrant, the Shares have
been paid for, the Shares so issued will be legally issued and will be fully
paid and nonassessable.
<PAGE>
Aftermarket Technology Corp.
December 20, 1996
Page 2
We consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm appearing on the
cover of the Registration Statement. In giving this consent, we do not admit
that we are within the category of persons whose consent is required under
Section 7 of the Act or the General Rules and Regulations of the Commission.
Very truly yours,
/s/
GIBSON, DUNN & CRUTCHER LLP
BDM/JMS/LYK
<PAGE>
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference therein in the Registration
Statement (Form S-8 No. 333-____) pertaining to the 1996 Stock Incentive Plan
of Aftermarket Technology Corp. and the Warrant Agreement, dated as of
December 20, 1996, between Michael J. Hartnett and Aftermarket Technology
Corp. of our reports dated June 21, 1996 except as to Note 13, as to which
the date is December 13, 1996, with respect to Aftermarket Technology Corp.
and May 3, 1995, except for Note 5 as to which the date is May 10, 1995 with
respect to Component Remanufacturing Specialists, Inc. included in
Aftermarket Technology Corp.'s Form S-1 and related Prospectus, filed with
the Securities and Exchange Commission on December 16, 1996.
ERNST & YOUNG LLP
Seattle, Washington
December 20, 1996
