THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION, AND MAY NOT BE SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
AN OPINION OF COUNSEL DELIVERED TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED
UNDER SUCH ACT.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD,
ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER
COMPLIES WITH THE PROVISIONS OF A STOCKHOLDERS AGREEMENT DATED AS OF AUGUST 2,
1994 AMONG THE COMPANY AND THE STOCKHOLDERS, OPTIONHOLDERS AND WARRANTHOLDERS
SIGNATORY THERETO, A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE COMPANY. SUCH AGREEMENT PROVIDES THAT ALL PERSONS WHO
ACQUIRE THESE SECURITIES ARE BOUND BY THE TERMS OF SUCH AGREEMENT.
AFTERMARKET TECHNOLOGY CORP.
WARRANT
Dated as of December 20, 1996
WARRANTS TO PURCHASE COMMON STOCK
Certificate for 280,704 Warrants
ISSUED TO WILLIAM E. MYERS, JR. ("HOLDER")
This Warrant is entered into as of December 20, 1996 by and between
Aftermarket Technology Corp., a Delaware corporation (the "COMPANY"), and the
person named above as Holder.
WHEREAS, Aftermarket Technology Holdings Corp., a Delaware corporation
("HOLDINGS"), issued Warrants to Holder on August 2, 1994 (the "ORIGINAL
ISSUANCE DATE") to purchase 46,784 shares of Common Stock, $0.01 par value per
share, of Holdings (the "HOLDINGS COMMON STOCK"), that, prior to the date
hereof, were evidenced by that certain Warrant certificate dated August 2, 1994
(the "PRIOR CERTIFICATE");
WHEREAS, on December 13, 1996, Holdings consummated a six-for-one
stock split (the "STOCK SPLIT");
WHEREAS, upon the consummation of the Stock Split and pursuant to
Section 7 of the Prior Certificate, the number of shares of Holdings Common
Stock that Holder was entitled to purchase immediately prior to the Stock Split
was proportionately increased to 280,704 shares of Holdings Common Stock, and
the exercise price was likewise adjusted proportionately;
WHEREAS, Holdings was merged into the Company, effective December 20,
1996 (the "REORGANIZATION"); and
WHEREAS, pursuant to the Agreement and Plan of Reorganization, dated
as of December 13, 1996, between the Company and Holdings, and upon consummation
of the Reorganization, each outstanding warrant that was issued by Holdings was
converted into a warrant to purchase the Common Stock of the Company;
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein, the parties hereto agree as follows:
The Company hereby certifies that the Holder is the registered owner
of the number of Warrants set forth above.
Each Warrant entitles the Holder to purchase one (1) share (each such
share being referred to herein as a "WARRANT SHARE" and all such shares being
referred to herein, collectively, as the "WARRANT SHARES"), as adjusted from
time to time as provided in Section 7 hereof, of the Common Stock, $0.01 par
value per share, of the Company (the "COMMON STOCK") at the exercise price of
One Dollar and Sixty-Seven Cents ($1.67) per Warrant Share (the "EXERCISE
PRICE"), subject to the following terms and conditions.
1. REGISTRATION. The Company shall register each Warrant, upon
records to be maintained by the Company for such purpose (such records being
referred to herein as the "REGISTER"), in the name of the record holder of such
Warrant from time to time. The Company may deem and treat the registered holder
of each Warrant as the absolute owner thereof for the purpose of any exercise
thereof or any distribution to the holder thereof, and for all other purposes,
and the Company shall not be affected by any notice to the contrary.
2. TRANSFERS AND EXCHANGES.
(a) REGISTRATION; ISSUANCE OF NEW WARRANT CERTIFICATES. The
Company shall reflect in the Register the transfer of any Warrant represented
hereby upon the surrender of this Warrant Certificate, with the Form of
Assignment attached as Annex A hereto duly completed and signed (and with a
signature guarantee for the transfer of any Warrants by a registered holder
other than the initial registered holder of this Warrant Certificate), to the
Company at the office of the Company set forth in Section 11 hereof; PROVIDED,
HOWEVER, that unless (i) such transfer relates to Warrants that have been or are
being transferred pursuant to an effective registration under the Securities Act
of 1933, as amended (the "SECURITIES ACT"), or Rule 144 or any successor rule
thereunder, or (ii) such transfer is being made solely to "accredited
investors," as such term is defined in Regulation D under the Securities Act,
each of which
WARRANT
2
accredited investors (A) represents in writing to the Company that it is such an
"accredited investor," and is acquiring such Warrants for investment and not
with a view to the distribution thereof within the meaning of the Securities Act
(subject to any requirement of law that the disposition thereof shall at all
times be within the control of such holder) and (B) agrees in writing to be
bound by the terms of this Section 2(a) with respect to subsequent dispositions,
then the Company may require, as a condition to the Company's registration of
the transfer of any Warrant, an opinion of counsel (the fees and disbursements
of which shall be paid by the Holder) reasonably satisfactory to the Company to
the effect that such transfer may be effected without registration under the
Securities Act. Upon any such registration of transfer, a new Warrant
Certificate, in substantially the form of this Warrant Certificate, evidencing
the Warrants so transferred shall be issued to the transferee of such Warrants
and a new Warrant Certificate, in substantially the form of this Warrant
Certificate, evidencing the remaining Warrants, if any, not so transferred,
shall be issued to the Holder. The Company shall at no time close the Register
against the transfer of any Warrant or Warrant Share in any manner that
materially interferes with the timely exercise of such Warrant.
(b) WARRANTS EXCHANGEABLE FOR DIFFERENT DENOMINATIONS. This
Warrant Certificate is exchangeable, upon the surrender hereof by the Holder at
the office of the Company set forth in Section 11 hereof, for new Warrant
Certificates, in substantially the form of this Warrant Certificate, evidencing
in the aggregate the right to purchase the number of Warrant Shares that may
then be purchased under this Warrant Certificate. Each such new Warrant
Certificate shall be dated the date of such exchange and represent the right to
purchase such number of Warrant Shares as shall be designated by the Holder at
the time of such surrender.
3. DURATION AND EXERCISE OF WARRANTS.
(a) Subject to all the terms and conditions hereinafter set
forth (including, without limitation, the terms and conditions in Section 16),
the Warrants may be exercised by the holder at any time from the date hereof
until 5:00 p.m., Los Angeles time, on the tenth (10th) anniversary of the
Original Issuance Date (the "EXPIRATION TIME"). At the Expiration Time, each
Warrant not exercised prior thereto shall be and become void and of no value.
(b) Subject to the provisions of this Warrant Certificate,
including adjustments to the Exercise Price and to the number of Warrant Shares
issuable upon the exercise of each Warrant pursuant to Section 7 hereof, each
holder of a Warrant on or prior to the Expiration Time shall have the right to
purchase from the Company (and the Company shall be obligated to issue and sell
to such holder of a Warrant) at the Exercise Price one fully-paid Warrant Share,
which shall be nonassessable upon issuance.
(c) Subject to Sections 4, 9 and 10(a) hereof, upon (i)
surrender of this Warrant Certificate, together with the Form of Election to
Purchase attached as Annex B hereto (the "FORM OF ELECTION TO PURCHASE") duly
completed and signed, to the Company at the address provided in Section 11, and
(ii) payment of the Exercise Price, multiplied by the number of Warrant Shares
then issuable upon exercise of the Warrants being so exercised in immediately
WARRANT
3
available lawful money of the United States of America, the Company shall
promptly, but in any event within five (5) days of its receipt of the Form of
Election to Purchase, together with the Warrant Certificate and receipt of
payment of the Exercise Price, issue and cause to be delivered to or upon the
written order of the Holder, and in such name or names as such Holder may
designate (subject to Section 4 hereof), a certificate for the Warrant Shares
issued upon such exercise of such Warrants. Any person so designated to be
named in such certificate for such Warrant Shares shall be deemed to have become
the holder of record of such Warrant Shares as of the Date of Election to
Purchase such Warrants. The "DATE OF ELECTION TO PURCHASE" any Warrant means
the date on which the Company shall have received (l) this Warrant Certificate,
with the Form of Election to Purchase duly filed in and signed, and (2) payment
of the Exercise Price for such Warrant.
(d) Any part of the Warrants evidenced by this Warrant
Certificate shall be exercisable from time to time. If fewer than all the
Warrants evidenced by this Warrant Certificate are exercised at any time, the
Company, at its expense, shall issue to the registered holder a new Warrant
Certificate, in substantially the form of this Warrant Certificate, for the
remaining number of Warrants evidenced by this Warrant Certificate.
(e) In lieu of the payment of the Exercise Price in cash, the
Holder may request that the Company accept the net value of shares issuable upon
payment of the Exercise Price. In such event the Company shall issue to the
Holder the number of shares of Common Stock equal to (i) the product of (x) the
number of Warrants being exercised and (y) the amount by which the fair market
value of one share of Common Stock exceeds the Exercise Price for such share,
divided by (ii) the fair market value of one share of Common Stock. For
purposes of this Section 3(e), the "FAIR MARKET VALUE" of one share of Common
Stock shall be the value as agreed by the Company and the Holder, provided that
the Holder shall not have the option to pay any part of the Exercise Price as
aforesaid if the Company and the Holder are unable to agree upon the "fair
market value" of one share of Common Stock. This Section 3(e) shall not affect
the Holder's obligations under Section 4(b).
4. PAYMENT OF TAXES.
(a) The Company shall pay all issuance and transfer taxes and
charges that may be imposed on the Company or on the Warrants or the Warrant
Shares in respect of the transfer of Warrants, or the issuance or delivery of
the Certificates for Warrant Shares or other Securities in respect of the
Warrant Shares upon the exercise or conversion of Warrants; PROVIDED, HOWEVER,
that the Company shall not be required to pay any such tax or other charge
imposed in respect of the transfer of Warrants, or the issuance or delivery of
certificates for Warrant Shares or other Securities in respect of the Warrant
Shares upon the exercise of Warrants, to a person or entity other than a
then-existing registered holder of Warrants.
(b) Upon exercise of the Warrant in whole or in part, the holder
shall be required to pay to the Company (by cashier's or certified check) an
amount equal to all applicable federal and state withholding taxes that may
become payable by reason of such exercise.
WARRANT
4
5. MUTILATED OR MISSING WARRANT CERTIFICATE. If this Warrant
Certificate shall be mutilated, lost, stolen or destroyed, upon request by the
registered holder of the Warrants, the Company shall issue, in exchange for and
upon cancellation of the mutilated Warrant Certificate, or in substitution for
the lost, stolen or destroyed Warrant Certificate, a new Warrant Certificate, in
substantially the form of this Warrant Certificate, of like tenor and
representing the equivalent number of Warrants, but, in the case of loss, theft
or destruction, only upon receipt of evidence satisfactory to the Company of
such loss, theft or destruction of this Warrant Certificate and, if requested by
the Company, indemnity also satisfactory to it.
6. RESERVATION AND ISSUANCE OF WARRANT SHARES.
(a) The Company shall at all times have authorized, and reserve
and keep available, exclusively for the purpose of enabling it to satisfy any
obligation to issue Warrant Shares upon the exercise of the Warrants, the number
of Warrant Shares deliverable upon exercise of the Warrants. The Company shall
take all corporate action necessary to enable the Company to validly and legally
issue, at the Exercise Price, Warrant Shares that are fully paid and
nonassessable.
(b) The Company covenants that all Warrant Shares will, upon
issuance in accordance with the terms of this Warrant Certificate, be (i) duly
authorized, validly issued, fully paid and nonassessable and (ii) free from all
taxes or other governmental charges with respect to the issuance thereof (not
including income taxes payable by the holders of Warrants being exercised in
respect of gains thereon) and from all liens, charges and security interests
created by the Company.
(c) If any Warrant Shares required to be reserved pursuant to
paragraph (a) of this Section 6 require registration with or approval of any
governmental authority under any Federal or state law (other than the Securities
Act, registration under which is governed by Section 10 hereof) before such
Warrant Shares may be issued upon the exercise thereof, the Company shall, at
the Holder's expense and as expeditiously as possible, use its best efforts to
cause such Warrant Shares to be duly registered or approved, as the case may be;
PROVIDED, HOWEVER, that the Company will not be required to qualify generally to
do business in any jurisdiction in which it is not then so qualified, to subject
itself to taxation in any jurisdiction in which it is not then subject to
taxation, or to take any action that would subject it to general service of
process in any jurisdiction in which it is not then so subject.
7. ADJUSTMENTS. If the Company shall at any time subdivide the
outstanding shares of Common Stock into a greater number of shares, or pay to
holders of Common Stock any dividend payable in shares of Common Stock, the
number of Warrant Shares in effect immediately prior to such subdivision or
dividend shall be proportionately increased, and conversely, if the outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
number of Warrant Shares in effect immediately prior to such combination shall
be proportionately reduced; and, in either case the Exercise Price shall be
adjusted proportionately.
8. NO STOCK RIGHTS. No holder of this Warrant Certificate, as such,
shall be entitled to vote or be deemed the holder of Common Stock or any other
securities of the
WARRANT
5
Company which may at any time be issuable on the exercise hereof, nor shall
anything contained herein be construed to confer upon the holder of this Warrant
Certificate, as such, the rights of a stockholder of the Company or the right to
vote for the election of directors or upon any matter submitted to stockholders
at any meeting thereof, or to give or withhold consent to any corporate action,
to exercise any preemptive right, to receive notice of meetings or other actions
affecting stockholders (except as provided herein), or to receive dividends or
subscription rights or otherwise, until the Date of Election to Purchase
Warrants shall have occurred.
9. FRACTIONAL WARRANTS AND FRACTIONAL WARRANT SHARES. The Company
may, but shall not be required to, issue fractional Warrant Shares. If any
fraction of a Warrant Share would, except for the provisions of this Section 9,
be issuable to the holder of this Warrant Certificate upon exercise of any
Warrants, the Company may, at its election, pay to such holder an amount in cash
equal to the difference between (a) the fair market value of one share of Common
Stock and (b) the Exercise Price, multiplied by such fraction. The holder of a
Warrant Certificate, by the acceptance of the Warrant Certificate, expressly
waives the right to receive any fractional Warrant Shares upon exercise of a
Warrant. The holder of a Warrant Certificate shall be entitled to receive
fractional Warrants and fractional Warrant Shares at the election of the
Company.
10. REPRESENTATIONS OF HOLDER. Neither the Warrants nor the Warrant
Shares have been registered under the Securities Act. The holder of this
Warrant Certificate, by acceptance hereof, represents that:
(a) such holder is acquiring the Warrants, and will acquire the
Warrant Shares, to be issued to such holder for such holder's own account and
not with a view to the distribution thereof;
(b) has had the opportunity to ask questions of, and has received
answers satisfactory thereto from, the officers and directors of, and has had
access to information concerning, the Company and the terms and conditions of
this Warrant and the Warrant Shares, and all information requested by holder
concerning this Warrant and the Warrant Shares and the Company has been provided
by the Company;
(c) such holder has such knowledge and experience in financial
affairs that such holder is capable of evaluating the merits and risks of
acquiring and holding this Warrant and the Warrant Shares;
(d) such holder has not relied, in connection with the decision to
accept or to provide consideration for this Warrant and the Warrant Shares, upon
the identity or advice of any other Person or upon any representations,
warranties or agreements other than those set forth in this Warrant;
(e) such holder's financial situation is such that such holder can
afford to suffer the complete loss of the consideration given in exchange for
this Warrant and the Warrant Shares;
WARRANT
6
(f) such holder is an "accredited investor" as defined in
Regulation D promulgated under the Securities Act; and
(g) if such holder is an individual, such holder's net worth with
such holder's spouse exceeds $1,000,000, or such holder's individual income was
in excess of $200,000 in each of the two most recent years or was in excess of
$300,000 in each of the two most recent years, and such holder reasonably
expects to reach the same income level in the current year.
Holder agrees not to sell, transfer, pledge or hypothecate any
Warrants or any Warrant Shares except in compliance with the provisions of the
Securities Act, or pursuant to an exemption from the requirements of the
Securities Act.
The Company shall use its best efforts to comply with all reporting
requirements of the Securities and Exchange Commission (such Commission or any
successor to any or all of its functions being the "COMMISSION"), including,
without limitation, Rule 144 under the Securities Act, from time to time in
effect and relating to the availability of an exemption from the Securities Act
for the sale of restricted securities. The Company also shall cooperate with
the holder of this Warrant Certificate and with each holder of any Warrant
Shares in supplying such information as may be necessary for any such holder to
complete and file any information reporting forms presently or hereafter
required by the Commission as a condition to the availability of an exemption
from the Securities Act for the sale of restricted securities.
11. NOTICES. All notices, requests, demands and other communications
relating to this Warrant Certificate shall be in writing, including by
telecopier, telex, telegram or cable, addressed, if to the registered holder
hereof, to it at the address furnished by the registered holder to the Company,
and if to the Company, at its office at 33309 1st Way South, Suite A-206,
Federal Way, Washington, 98003, Attention: President, or to such other address
as any party shall notify the other party in writing, and shall be effective, in
the case of written notice by mail, three days after placement into the mails
(first class, postage prepaid), and in the case of notice by telex, telecopier,
telegram or cable, on the same day as sent.
12. BINDING EFFECT. This Warrant Certificate shall be binding upon
and inure to the sole and exclusive benefit of the Company, its permitted
successors and permitted assigns, and the registered holder or holders from time
to time of the Warrants and the Warrant Shares.
13. SURVIVAL OF RIGHTS AND DUTIES. Unless earlier terminated or
cancelled in whole or in part pursuant to Section 16 of this Warrant
Certificate, this Warrant Certificate and unexercised Warrants represented
hereby shall terminate and be of no further force and effect on the earlier of
the Expiration Time or the date on which all the Warrants shall have been
exercised, except that the provisions of Sections 4, 6(b) and 10 of this Warrant
Certificate shall continue in full force and effect after any such termination
or cancellation.
14. GOVERNING LAW. This Warrant Certificate shall be construed in
accordance with and governed by the internal laws of the State of Delaware
applicable to contracts executed and to be performed wholly within such state,
without regard to the principles of conflicts or choice of law.
WARRANT
7
15. MODIFICATION AND WAIVER. This Warrant Certificate and any term
hereof may be changed, waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of such change, waiver,
discharge or termination is sought.
16. STOCKHOLDERS AGREEMENT. The Holder acknowledges that he is a
party to that certain Stockholders Agreement dated August 2, 1994 among the
Company and certain of its stockholders, optionholders and warrantholders, as
amended from time to time, and that the Holder is bound by all the terms and
conditions of such agreement just as if the Warrants were shares of Common Stock
(as defined in the Stockholders Agreement), MUTATIS MUTANDIS.
17. REORGANIZATION, RECLASSIFICATION, CONSOLIDATION, MERGER OR SALE.
If any capital reorganization or reclassification of the capital stock of the
Company, any consolidation or merger of the Company with another entity, or the
sale of all or substantially all of the Company's assets to another entity shall
be effected in such a way that holders of Common Stock shall be entitled to
receive stock, securities or assets with respect to or in exchange for Common
Stock, then, as a condition of such reorganization, reclassification,
consolidation, merger of sale, lawful and adequate provisions shall be made
whereby the Holder shall thereafter have the right to purchase and receive upon
the basis and the terms and conditions specified in this Warrant and in lieu of
the shares of Common Stock immediately theretofore purchasable and receivable
upon the exercise of the rights represented hereby, such shares of stock,
securities or assets as may be issued or payable in such reorganization,
reclassification, consolidation, merger or sale with respect to or in exchange
for the number of shares of Common Stock purchasable and receivable upon the
exercise of the rights represented hereby had such rights been exercised
immediately prior thereto, and in any such case appropriate provision shall be
made with respect to the rights and interests of the Holder to the end that the
provisions hereof (including without limitation provisions for adjustments of
the Exercise Price and of the number of shares of Common Stock purchasable and
receivable upon the exercise of this Warrant) shall thereafter be applicable, as
nearly as may be, in relation to any shares of stock, securities or assets
thereafter deliverable upon the exercise hereof. The Company will not effect
any such consolidation, merger or sale, unless prior to the consummation thereof
the successor corporation (if other than the Company) resulting from such
consolidation or merger or the corporation purchasing such assets shall assume
by written instrument, executed and mailed or delivered to the Holder at the
last address thereof appearing in the Register, the obligation to deliver to
such Holder such shares of stock, securities or assets as, in accordance with
the foregoing provisions, such Holder may be entitled to purchase. This
Section 17 shall not apply to any consolidation, merger or sale following which
the Aurora Equity Partners L.P. and Aurora Overseas Equity Partners I, L.P.
(together, the "AURORA ENTITIES") and their respective Affiliates collectively
no longer control the Company. As used herein, the term "AFFILIATE" shall mean,
with reference to any person or entity, any other person or entity directly or
indirectly, through one or more intermediaries, controlling, controlled by or
under common control with such first person or entity.
18. ISSUANCE OF CERTAIN ADDITIONAL SHARES.
(a) If the Company shall sell or issue to either of the Aurora
Entities or their Affiliates any shares of Common Stock (collectively, a "SHARE
ISSUANCE") at a price per
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share of Common Stock that is less than the Fair Market Value of Common Stock on
the date of the Share Issuance (such shares being referred to as the "BELOW
MARKET SHARES"), the Exercise Price shall be adjusted on and after the date of
such Share Issuance by multiplying the Exercise Price in effect immediately
prior to such adjustment by a fraction, of which the numerator shall be the
number of shares of Common Stock outstanding on such date plus the number of
shares of Common Stock that the aggregate purchase price of such Below Market
Shares would purchase at the Fair Market Value, and of which the denominator
shall be the number of shares of Common Stock outstanding on such date plus the
number of Below Market Shares. The adjustment to the Exercise Price set forth
in this Section (a) shall be made successively whenever a sale or issuance of
Below Market Shares occurs.
(b) If the Company shall sell or issue to either of the Aurora
Entities or their Affiliates any options, warrants or rights entitling the
Aurora Entities or their Affiliates to subscribe for, purchase or convert or
exchange shares of Common Stock (collectively, an "OPTION ISSUANCE") having an
exercise price per share of Common Stock that is less than the Fair Market Value
of Common Stock on the date of the Option Issuance (such options, warrants or
rights being referred to as the "BELOW MARKET OPTIONS"), the Exercise Price
shall be adjusted on and after the date of such Option Issuance by multiplying
the Exercise Price in effect immediately prior to such adjustment by a fraction,
of which the numerator shall be the number of shares of Common Stock outstanding
on such date plus the number of shares of Common Stock that the aggregate
purchase price of such Below Market Options plus any additional amounts payable
to the Company upon the exercise thereof would purchase at the Fair Market
Value, and of which the denominator shall be the number of shares of Common
Stock outstanding on such date plus the number of Below Market Shares. The
adjustment to the Exercise Price set forth in this Section 18(b) shall be made
successively whenever a sale or issuance of Below Market Options occurs;
PROVIDED, HOWEVER, that, if any such Below Market Options expire without the
issuance of shares of Common Stock, then the Exercise Price shall again be
adjusted to equal the Exercise Price in effect had such issuance of Below Market
Options not occurred.
(c) As used in this Section 18, "FAIR MARKET VALUE" of shares of
Common Stock as of a particular date shall mean the average value of the shares
of such class for the 10-business day period immediately preceding such date.
Such average value shall be the average of the last reported sales price of the
shares of such class on the New York Stock Exchange for each of such 10 days,
or, if not reported on such Exchange, on the Composite Tape, or, in case no such
reported sales take place for each of such 10 days, the average of the reported
closing bid and asked quotations on the New York Stock Exchange for each of such
10 days, or if no such quotations are available, the last reported sale prices
for such 10 days on the principal national securities exchange on which such
class of shares is listed, or if not listed on any national securities exchange,
the last reported sales prices for such 10 days in the over-the-counter market
as reported by the National Quotation Bureau, Incorporated or similar
organization, or if none of such sale prices are available for each day in such
10 days, the average of the high bid and low asked quotations in the
over-the-counter market as so reported for such 10 days, or if no such
quotations are available, the fair market value per share as determined in good
faith by the Company's Board of Directors, whose determination shall be
conclusive.
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(d) Upon each adjustment of the Exercise Price pursuant to
Section 18(a) or 18(b), the Holder shall thereafter be entitled to purchase at
the Exercise Price resulting from such adjustment, the number of Warrant Shares
obtained by multiplying the Exercise Price in effect immediately prior to such
adjustment by the number of shares purchasable pursuant hereto immediately prior
to such adjustment, and dividing the product thereof by the Exercise Price
resulting from such adjustment.
19. NOTICES AND INFORMATION TO HOLDER.
(a) FINANCIAL STATEMENTS AND DOCUMENTS. The Company shall
provide to the Holder upon request a copy of monthly, quarterly and annual
financial statements for the Company and, if any, its subsidiaries. The Holder
shall accept, and the Company shall deliver, such financial statements in
whatever form and at whatever times such financial statements are provided to
the Company's debt holders, lenders or board of directors. The Company shall
also provide to Holder upon request at no cost to Holder a copy of any material
agreements relating to the Company's (or any subsidiary's) capital structure or
debt and equity financing arrangements. If requested by the Company, the Holder
shall execute such confidentiality agreements as the Company may reasonably
require. The Company's obligations to deliver financial statements and other
documents under this Section 19 shall terminate on the date on which the Company
becomes a reporting company under Section 12 or Section 15 of the Securities
Exchange Act of 1934, as amended.
(b) NOTICES OF CERTAIN EVENTS. In case: (a) the Company shall
authorize the issuance to all holders of shares of Common Stock of rights,
options or warrants to subscribe for or purchase shares of Common Stock or of
any other subscription rights or warrants; (b) the Company shall authorize the
distribution to all holders of shares of Common Stock of assets, including cash,
evidences of its indebtedness or other securities; (c) of any consolidation or
merger to which the Company is a party and for which approval of any
stockholders of the Company is required, or of the conveyance or transfer of the
properties and assets of the Company substantially as an entirety, or of any
reclassification or change of Common Stock issuable upon exercise of the
Warrants, or of the commencement of a tender offer or exchange offer for shares
of Common Stock; or (d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; THEN the Company shall cause to be given to the
Holder at least 10 days prior to the applicable record date hereinafter
specified, or the date of the event in the case of events for which there is no
record date, notice stating (i) the date as of which the holders of record of
shares of Common Stock to be entitled to receive any such rights, options,
warrants or distribution are to be determined, or (ii) the initial expiration
date set forth in any tender offer or exchange offer for shares of Common Stock,
or (iii) the date on which any such consolidation, merger, conveyance, transfer,
dissolution, liquidation or winding up is expected to become effective or
consummated, and the date as of which it is expected that holders of record of
shares of Common Stock shall be entitled to exchange such shares for securities
or other property, if any, deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, dissolution, liquidation or winding
up.
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(c) INFORMATION REGARDING ADJUSTMENTS. The Company shall keep a
record of any adjustment to the Warrant Shares or the Exercise Price pursuant
hereto, together with a record as to the method of calculation and the facts
upon which such calculations are based. Such information shall be provided to
the Holder upon request. To the extent practicable, the Company will include
such information in the notices given pursuant to Section 20(b).
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IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be executed under its corporate seal by its officers thereunto duly authorized
as of the date hereof, and the Holder has caused this Warrant Certificate to be
executed and delivered by its duly authorized representative.
AFTERMARKET TECHNOLOGY CORP.
[CORPORATE SEAL]
By:
-------------------------------------
Stephen J. Perkins, Chief Executive
Officer
----------------------------------------
WILLIAM E. MYERS, JR.
WARRANT
12
ANNEX A
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, __________________________ hereby sells, assigns and
transfers to each assignee set forth below all the rights of the undersigned in
and to the number of Warrants (as deemed in and evidenced by the foregoing
Warrant Certificate) set opposite the name of such assignee below and in and to
the foregoing Warrant Certificate with respect to such Warrants and the shares
of common stock, $0.01 par value per share, of Aftermarket Technology Corp.
issuable upon exercise of such Warrants:
NAME OF ASSIGNEE ADDRESS NUMBER OF WARRANTS
If the aggregate number of such Warrants shall not constitute all the Warrants
evidenced by the foregoing Warrant Certificate, the undersigned requests that a
new Warrant Certificate evidencing the Warrants not so assigned be issued in the
name of and delivered to the undersigned.
Dated: ______________, ____ Name of Holder (Print):
--------------------------
(By:)
--------------------------
(Title:)
--------------------------
[SIGNATURE GUARANTEE] ATTEST:
(Not Required for Initial
Registered Holder)
--------------------------
[Assistant] Secretary
ANNEX A
A-1
ANNEX B
FORM OF ELECTION TO PURCHASE
(To Be Executed by the Holder if the
Holder Desires to Exercise Warrants
Evidenced by the foregoing Warrant Certificate)
To Aftermarket Technology Corp.:
The undersigned hereby irrevocably elects to exercise ________ Warrants (as
deemed in and evidenced by the foregoing Warrant Certificates) for, and to
purchase thereunder, ___________ full shares of common stock, $0.01 par value
per share, of Aftermarket Technology Corp., issuable upon exercise of such
Warrants and delivery of $_________ in cash and any applicable taxes payable by
the undersigned pursuant to such Warrant Certificate.
The undersigned requests that certificates for such shares be issued in the name
of the following:
Printed Name:
--------------------------------------------------------------
Social security or tax identification number:
------------------------------
Printed Address:
-----------------------------------------------------------
-----------------------------------------------------------
If such number of Warrants shall not constitute all the Warrants evidenced by
the foregoing Warrant Certificate, the undersigned request that a new Warrant
Certificate evidencing the Warrants not so exercised be issued in the name of
and delivered to the following:
Printed Name:
--------------------------------------------------------------
Printed Address:
-----------------------------------------------------------
-----------------------------------------------------------
Dated: ______________, ____ Name of Holder (Print):
---------------------------
(By:)
---------------------------
(Title:)
---------------------------
[SIGNATURE GUARANTEE]
(Not Required for Initial Registered Holder)
ANNEX B
B-1