EXHIBIT 10.44
STOCK SUBSCRIPTION AGREEMENT
This Stock Subscription Agreement (this "Agreement") is entered into
as of November 18, 1996 by and between Aftermarket Technology Corp., a Delaware
corporation (the "Company"), and the Trustees of the General Electric Pension
Trust ("Purchaser").
R E C I T A L S
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A. The Company has filed a Registration Statement on Form S-1 (File
No. 333-6697) (the "Registration Statement") with the Securities and Exchange
Commission (the "SEC") in connection with the proposed underwritten initial
public offering (the "Public Offering") of shares of the Company's Common Stock,
par value $.01 per share ("Common Stock"); and
B. Purchaser desires to purchase and the Company desires to issue
and sell, concurrently with the consummation of the Public Offering, additional
shares of Common Stock on the terms and conditions set forth below.
A G R E E M E N T
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NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth below, the
parties hereto agree as follows:
ARTICLE I
AGREEMENT TO SELL AND PURCHASE SHARES
1.1 SALE AND PURCHASE OF SHARES. On the terms and subject to the
conditions set forth herein, on the Closing Date (as defined in Section 3.1),
the Company shall issue and sell to Purchaser, and Purchaser shall purchase from
the Company, that number of shares of Common Stock (the "Shares") equal to
(i) $12,000,000 divided by (ii) (x) the price to the public in the Public
Offering minus (y) the underwriters' discounts and commissions in the Public
Offering (which price, discounts and commissions will be set forth in the final
prospectus for the Public Offering to be filed with the SEC pursuant to Rule
424(b) under the Securities Act of 1933, as amended (the "Securities Act")).
1.2 PURCHASE PRICE. The aggregate purchase price to be paid by
Purchaser for the Shares shall be $12,000,000, to be paid by wire transfer of
immediately available funds to an account designated by the Company on or prior
to the Closing Date.
1.3 SHARE RESTRICTIONS.
(a) SECURITIES ACT RESTRICTIONS. Purchaser will not sell or
otherwise transfer any of the Shares except in accordance with the Securities
Act. Purchaser acknowledges that the certificates evidencing the Shares will
bear a legend to the effect that the Shares have not
been registered under the Securities Act and may not be resold unless they are
so registered or such resale is an exempt transaction under the Securities Act.
(b) STOCKHOLDERS AGREEMENT RESTRICTIONS. The Shares will be
subject to all the terms and conditions of that certain Stockholders Agreement
dated as of August 2, 1994 among Aftermarket Technology Holdings Corp. (the sole
stockholder of the Company, which will be merged with and into the Company on or
before the Closing Date) and certain of its stockholders, optionholders and
warrantholders as the same may be amended from time to time (the "Stockholders
Agreement"). Purchaser acknowledges that the certificates evidencing the Shares
will bear a legend to the effect that the Shares are subject to the Stockholders
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to Purchaser that:
(a) ORGANIZATION AND GOOD STANDING. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware.
(b) AUTHORIZATION AND BINDING EFFECT. The Company has full
power and authority to enter into this Agreement and to perform its obligations
under this Agreement and to consummate the transactions contemplated hereby.
This Agreement and all other agreements and instruments herein contemplated to
be executed by the Company are (or upon execution and delivery thereof by the
Company will be) valid and binding agreements of the Company, enforceable in
accordance with their respective terms except (i) as the same may be limited by
applicable bankruptcy, insolvency, moratorium or similar laws of general
application relating to or effecting creditors' rights, including, without
limitation, the effect of statutory or other laws regarding fraudulent
conveyances and preferential transfers, (ii) for the limitations imposed by
general principles of equity, and (iii) to the extent that such terms may be
deemed to violate public policy regarding indemnification for violations of
securities laws. The exceptions set forth in clauses (i), (ii) and (iii) above
are hereinafter referred to as the "Enforceability Exceptions."
(c) NO BREACH. The execution and delivery of this Agreement by
the Company do not, and the consummation of the transactions contemplated hereby
will not, (i) violate or conflict with the Certificate of Incorporation or
Bylaws of the Company, or (ii) constitute a breach or default (or an event that
with notice or lapse of time or both would become a breach or default) or give
rise to any lien, third party right of termination, cancellation, material
modification or acceleration under any material agreement, understanding or
undertaking to which the Company is a party or by which it is bound or, assuming
the representation and warranty of Purchaser contain in Section 2.2(e) are
correct, any law, rule or regulation to which the Company is subject.
(d) CONSENTS AND APPROVALS. Neither the execution and delivery
of this Agreement by the Company nor the consummation of the transactions
contemplated hereby will
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require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, except (i) where the
failure to obtain such consents, approvals, authorizations or permit, or to make
such filings or notifications, would not prevent the Company from performing its
obligations under this Agreement without having a material adverse effect on the
Company and its subsidiaries taken as a whole, and (ii) filings required to be
made by Purchaser.
(e) THE SHARES. The Shares have been duly and validly
authorized and, when issued in accordance with the terms hereof, will be (i)
duly and validly issued, fully paid and nonassessable, and (ii) free and clear
of all liens, encumbrances, mortgages, pledges, security interests,
restrictions, prior assignments and claims of any kind or nature whatsoever
except any created by this Agreement or the Stockholders Agreement or by
Purchaser.
(f) THE PROSPECTUS. The preliminary prospectus dated
November 18, 1996, which constitutes a part of the Registration Statement, does
not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
2.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to the Company as follows:
(a) EXISTENCE OF TRUST. The General Electric Pension Trust (the
"Trust") is a New York common law trust.
(b) AUTHORIZATION AND BINDING EFFECT. Purchaser has full power
and authority to enter into this Agreement and to perform its obligations under
this Agreement and to consummate the transactions contemplated hereby. This
Agreement and all other agreements and instruments herein contemplated to be
executed by Purchaser are (or upon execution and delivery thereof by Purchaser
will be) valid and binding agreements of Purchaser, enforceable in accordance
with their respective terms, subject to the Enforceability Exceptions.
(c) NO BREACH. The execution and delivery of this Agreement by
Purchaser do not, and the consummation of the transactions contemplated hereby
will not, (i) violate or conflict with the trust instrument of the General
Electric Pension Trust or (ii) constitute a breach or default (or an event that
with notice or lapse of time or both would become a breach or default) or give
rise to any lien, third party right of termination, cancellation, material
modification or acceleration under any material agreement, understanding or
undertaking to which Purchaser is a party or by which it is bound or any law,
rule or regulation to which it is subject.
(d) CONSENTS AND APPROVALS. Neither the execution and delivery
of this Agreement by Purchaser nor the consummation of the transactions
contemplated hereby will require any consent, approval, authorization or permit
or filing with or notification to, any governmental or regulatory authority,
except (i) where the failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, would not prevent
Purchaser from performing its obligations under this Agreement without having a
material adverse
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effect on Purchaser, (ii) the filing of a Schedule 13D and a Form 3 by Purchaser
with the SEC disclosing Purchaser's acquisition of the Shares and (iii) filings
required to be made by the Company.
(e) INVESTMENT INTENT; ACCREDITED INVESTOR STATUS. Purchaser is
acquiring the Shares for its own account for investment and not with a view to,
or for sale in connection with, any distribution of any of the Shares in
violation of applicable securities laws. Purchaser has sufficient business or
financial experience to have the capacity to protect its own interests in
connection with the purchase of the Shares and is able to bear the economic risk
of its investment. Purchaser is an "accredited investor" within the meaning of
Rule 501(a) of Regulation D of the SEC.
ARTICLE III
CLOSING; CONDITIONS TO CLOSING
3.1 CLOSING AND CLOSING DATE. The closing of the transactions
contemplated hereby (the "Closing") shall, unless another date, time or place is
agreed to in writing by the parties hereto, take place at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx, Los Angeles, California, at 7:00 a.m., Los
Angeles time, on the date on which the issuance and sale of the shares of Common
Stock offered in the Public Offering occur (the "Closing Date").
3.2 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The obligations of the
Company and Purchaser to consummate the transactions contemplated hereby are
subject to the following conditions:
(a) CLOSING OF PUBLIC OFFERING. The issuance and sale of the
shares of Common Stock offered in the Public Offering shall have occurred; and
(b) ABSENCE OF PROHIBITIONS. There being, on the Closing Date,
no (i) threatened, instituted or pending action, proceeding, application, claim
or counterclaim by or before any court or governmental authority or agency
seeking to restrain or prohibit the consummation of the transactions
contemplated hereby or (ii) statute, rule, regulation, decree, order or
injunction promulgated, enacted, entered or enforced by any court or
governmental agency or authority restraining or prohibiting the consummation of
such transactions.
3.3 CONDITIONS TO THE COMPANY'S OBLIGATION. The obligation of the
Company to consummate the transactions contemplated hereby is subject to the
satisfaction, on or prior to the Closing Date, of the following conditions:
(a) PURCHASER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Purchaser contained in this Agreement or in
any other document delivered pursuant hereto shall be true and correct in all
respects on and as of the Closing Date with the same effect as if made on and as
of the Closing Date and at the Closing Purchaser shall have delivered to the
Company a certificate to that effect; and
(b) PURCHASE PRICE. The Company shall have received the payment
called for by Section 1.2.
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3.4 CONDITIONS TO PURCHASER'S OBLIGATION. The obligation of
Purchaser to consummate the transactions contemplated hereby is subject to the
satisfaction, on or prior to the Closing Date, of the following conditions:
(a) THE COMPANY'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Company contained in this Agreement or in
any other document delivered pursuant hereto shall be true and correct in all
respects on and as of the Closing Date with the same effect as if made on and as
of the Closing Date and at the Closing the Company shall have delivered to
Purchaser a certificate to that effect;
(b) REGISTRATION RIGHTS AGREEMENT. Purchaser shall have
received a registration rights agreement, a form reasonably acceptable to
Purchaser, duly executed by the Company;
(c) AMENDMENT TO STOCKHOLDERS AGREEMENT. The
Stockholders Agreement shall have been amended in a form reasonably
acceptable to Purchaser to provide registration rights to holders of 10% of
the outstanding Common Stock under certain circumstances; and
(d) STOCK CERTIFICATES. Purchaser shall have received duly
executed stock certificates evidencing the Shares.
ARTICLE IV
TERMINATION
4.1 TERMINATION. Notwithstanding anything herein to the contrary,
this Agreement shall terminate on March 31, 1997, unless extended by the written
consent of all parties hereto, if the transactions to be performed and
consummated on or prior to the Closing Date under the terms hereof have not been
consummated on and as of such date. This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned, at any time prior to the
Closing Date (i) by the written consent of the parties hereto or (ii) by either
party hereto if any condition to the Closing for the benefit of such party is
not fulfilled or waived on or prior to the Closing Date.
4.2 EFFECT OF TERMINATION. In the event that this Agreement is
terminated as provided in Section 4.1, all further obligations of the parties
under this Agreement shall terminate without further liability of any party to
any other party, provided that such termination shall not relieve any party of
any liability for a breach of this Agreement and any such termination shall not
be deemed to be a waiver of any available remedy for any such breach. This
Section 4.2 and Article V shall survive the termination of this Agreement.
ARTICLE V
MISCELLANEOUS
5.1 ENTIRE AGREEMENT. This Agreement, together with the Stockholders
Agreement and the Registration Rights Agreement referred to in Section 3.4(b),
constitutes the entire agreement among the parties with respect to the subject
matter hereof and supersedes all
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prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter hereof.
5.2 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware regardless of the laws that
might otherwise govern under principles of conflicts of laws applicable thereto.
5.3 INTERPRETATION. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement. The parties acknowledge that
each party and its counsel have received and approved this Agreement and the
normal rules of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement. The language in all parts of this Agreement shall in all
cases be construed according to its fair meaning, and not strictly for or
against any party hereto.
5.4 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one and the same agreement.
5.5 EXPENSES AND ATTORNEYS' FEES. Except as otherwise provided
herein or in the agreements contemplated hereby, all costs and expenses incurred
in connection with the transactions contemplated by this Agreement shall be paid
by the party incurring such expenses. If any party hereto institutes any action
or proceeding, whether before a court or arbitrator, to enforce any provision of
this Agreement, the prevailing party therein shall be entitled to receive from
the losing party reasonably attorneys' fees and costs incurred in such action or
proceeding, whether or not such action or proceeding is prosecuted to judgment.
5.6 BINDING EFFECT; NO ASSIGNMENT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective legal
representatives and successors. This Agreement may not be assigned by any party
hereto.
5.7 AMENDMENT AND WAIVERS. This Agreement may not be amended, and no
provision hereof may be waived, except by an instrument in writing signed by the
party to be charged.
5.8 SEVERABILITY. If any provision of this Agreement is for any
reason held invalid, illegal or unenforceable in any respect by any court of
competent jurisdiction, such provision shall be deemed ineffective without
affecting in any way the other provisions of this Agreement.
5.9 FURTHER ASSURANCES. Each party hereto shall execute and deliver
such further instruments and take such further actions as the other party may
reasonably request in order to carry out the transactions contemplated by this
Agreement.
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5.10 NO RECOURSE AGAINST TRUSTEES. Any obligation of Purchaser under
this Agreement shall be enforceable against the assets of the Trust but not
against the Trustees of the Trust (or any other person) individually.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its officer thereunto duly authorized
as of the date first above written.
AFTERMARKET TECHNOLOGY CORP.,
a Delaware corporation
By:
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Name:
Title:
THE TRUSTEES OF THE GENERAL ELECTRIC PENSION TRUST
By:
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Name:
Title:
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