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As filed with the Securities and Exchange Commission on April __, 1999
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)
ONE OAK HILL CENTER - SUITE 400 60559
WESTMONT, IL (Zip Code)
(Address of Principal Executive Offices)
AFTERMARKET TECHNOLOGY CORP.
1998 STOCK INCENTIVE PLAN
(Full Title of the Plan)
JOSEPH SALAMUNOVICH, ESQ.
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
AFTERMARKET TECHNOLOGY CORP.
900 OAKMONT LANE - SUITE 100
WESTMONT, IL 60559
(Name and Address of Agent for Service)
(630) 455-6000
(Telephone Number, Including Area Code, of Agent for Service)
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Copies of all communications, including all communications sent to agent for
service, should be sent to:
Ronald O. Mueller
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW, Suite 900
Washington, DC 20036
(202) 955-8500
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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 PER SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $.01
per share . . . 1,200,000(1) N/A (2) $3,007.60
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(1) Pursuant to Rule 416(a), this Registration Statement also registers such
number of additional securities that may be offered pursuant to the terms
of the Aftermarket Technology Corp. 1998 Stock Incentive Plan which
provides for a change in the amount or type of securities being offered or
issued to prevent dilution as a result of stock splits, stock dividends or
similar transactions.
(2) Calculated pursuant to Rule 457(h)(1) and Rule 457(c) based upon the
average of the high and low prices of the Common Stock on the Nasdaq
National Market on April 28, 1999, which was $9.0156.
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EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed by Aftermarket
Technology Corp., a Delaware corporation (the "Registrant"), relating to
1,200,000 shares of the Company's Common Stock, par value $.01 per share (the
"Common Stock"), which may be offered and sold pursuant to the Aftermarket
Technology Corp. 1998 Stock Incentive Plan (the "Plan").
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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant filed or to be filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated in
this Registration Statement by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed on March 29, 1999;
(2) The Registrant's reports on Form 8-K filed on February 25, 1999 and
April 1, 1999;
(3) The description of the Common Stock set forth 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; and
(4) All reports and other documents filed by the Registrant subsequent to
the date of this Registration Statement pursuant to Sections 13(a)
and (c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(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 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.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the validity of the Common Stock
registered hereby have been passed upon for the Registrant by Joseph
Salamunovich, Secretary and General Counsel of the Registrant. Mr. Salamunovich
is employed by the Registrant, has received under the Plan options to purchase
10,000 shares of Common Stock, and is eligible to receive additional awards
under the Plan from time to time in the future.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the DGCL makes provision for the indemnification of
officers and directors in terms sufficiently broad to indemnify officers and
directors of the Company under certain circumstances from liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933.
The Company'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 Company 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 Company or is or was
serving at the request of the Company as a director or officer of another
corporation or enterprise. The Company may, in its discretion, similarly
indemnify its employees and agents. The Certificate of Incorporation relieves
its directors from monetary damages to the Company 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 Company 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 Company, and, with respect to any
criminal action or proceeding, had no cause t believe his or her conduct was
unlawful. To the extent that a director or officer of the Company has been
successful in the defense of any action, suit or proceeding referred to above,
the Company will be obligated to indemnify him or her against expenses
(including attorneys' fees) actually and reasonably incurred in connection
therewith.
The Company has entered into separate but identical indemnification
agreements (the "Indemnification Agreements") with each director and executive
officer of the Company. The Indemnification Agreements provide for, among other
things, the following: (i) indemnification to the fullest extent permissible by
law against any and all expenses (including attorneys' fees and all other costs
and obligations of any nature whatever), judgments, fines, penalties and amounts
paid in settlement (including all interest, assessments and other charges paid
or payable in connection therewith) of any claim, unless the Company determines
that such indemnification is not permitted under applicable law; (ii) the prompt
advancement of expenses
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to the director or officer, including attorneys' fees and all other costs, fees,
expenses and obligations paid or incurred in connection with investigating or
defending any threatened, pending or completed action, suit or proceeding
related to the fact that such director or officer, is or was a director or
officer of the Company or is or was serving at the request of the Company as a
director, officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise,
and for repayment to the Company if it is found that such director or officer is
not entitled to such indemnification under applicable law; (iii) a mechanism
through which the director or officer may seek court relief in the event the
Company determines that the director or officer is not permitted to be
indemnified under applicable law (and therefore is not entitled to
indemnification under the Indemnification Agreement); and (iv) indemnification
against expenses (including attorneys' fees) incurred in seeking to collect from
the Company an indemnity claim or advancement of expenses to the extent
successful. The Company has purchased a policy of directors' and officers'
liability insurance.
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 Joseph Salamunovich, Esq.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Joseph Salamunovich, Esq. (filed as part of
Exhibit 5).
24 Power of Attorney (included on signature page)
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 of 1933, as amended (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
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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.
(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
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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 of 1933, 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, thereunto duly
authorized, in Westmont, Illinois, on this 30th day of April, 1999.
AFTERMARKET TECHNOLOGY CORP.
By: /s/ Joseph Salamunovich
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Joseph Salamunovich
Vice President, Secretary and
General Counsel
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph Salamunovich his or her true and
lawful attorney-in-fact and agent, with full power of substitution, for him or
her in his or her name, and in any and all capacities, to sign all amendments
(including post-effective amendments) to the Registration Statement to which
this power of attorney is attached and all subsequently filed registration
statements including any amendments thereto, for the same offerings that are to
be effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933, and to file all such amendments, registration statements and all exhibits
to them and other documents to be filed in connection with them, with the
Securities and Exchange Commission.
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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/s/ Michael T. DuBose Chairman of the Board, April 30, 1999
---------------------------- President and Chief Executive
Michael T. DuBose Officer (Principal Executive
Officer)
/s/ Barry C. Kohn Chief Financial Officer April 30, 1999
---------------------------- (Principal Financial and
Barry C. Kohn Accounting Officer)
/s/ Robert Anderson Director April 30, 1999
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Robert Anderson
/s/ Richard R. Crowell Director April 30, 1999
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Richard R. Crowell
/s/ Dale F. Frey Director April 30, 1999
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Dale F. Frey
/s/ Mark C. Hardy Director April 30, 1999
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Mark C. Hardy
/s/ Michael J. Hartnett Director April 30, 1999
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Michael J. Hartnett
/s/ Gerald L. Parsky Director April 30, 1999
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Gerald L. Parsky
/s/ Richard K. Roeder Director April 30, 1999
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Richard K. Roeder
/s/ William A. Smith Director April 30, 1999
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William A. Smith
/s/ J. Richard Stonesifer Director April 30, 1999
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J. Richard Stonesifer
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EXHIBIT INDEX
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Exhibit Description Sequentially
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Number Numbered Page
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5 Opinion of Joseph Salamunovich, Esq.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Joseph Salamunovich, Esq. (filed as
part of Exhibit 5).
24 Power of Attorney (included on signature page)
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EXHIBIT 5
Aftermarket Technology Corp.
One Oak Hill Center, Suite 400
Westmont, Illinois 60559
April 30, 1999
The Board of Directors
Aftermarket Technology Corp.
900 Oakmont Lane - Suite 100
Westmont, IL 60559
Re: REGISTRATION STATEMENT ON FORM S-8
Dear Sirs:
I refer to the Registration Statement on Form S-8 (the "Registration Statement")
to be filed with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Securities Act"), on behalf of Aftermarket Technology
Corp. (the "Company"), relating to 1,200,000 shares of the Company's Common
Stock, par value $.01 per share (the "Shares"), to be issued pursuant to the
Company's 1998 Stock Incentive Plan (the "Plan").
As counsel for the Company, I have examined such corporate records, other
documents and such questions of law as I have considered necessary or
appropriate for the purposes of this opinion and, upon the basis of such
examination, advise you that in my opinion all necessary corporate proceedings
by the Company have been duly taken to authorize the issuance of the Shares
pursuant to the Plan and that the Shares being registered pursuant to the
Registration Statement, when issued and paid for in accordance with the terms of
the Plan, will be duly authorized, validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to my name under the headings "Legal Matters" and
"Interests of Named Experts and Counsel" in the Registration Statement. This
consent is not to be construed as an admission that I am a person whose consent
is to be filed with the Registration Statement under the provisions of the
Securities Act.
Very truly yours,
/s/ Joseph Salamunovich
Joseph Salamunovich,
Vice President, Secretary and
General Counsel
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 to be filed on or about April 30, 1999) pertaining to the 1998 Stock
Incentive Plan of Aftermarket Technology Corp. of our report dated February 22,
1999 (except for Note 22, as to which the date was March 26, 1999), with respect
to the consolidated financial statements of Aftermarket Technology Corp.
included in the Annual Report (Form 10-K) for the year ended December 31, 1998.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
April 30, 1999
