AFTERMARKET TECHNOLOGY HOLDINGS CORP.
AMENDED AND RESTATED 1994 STOCK INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
This Non-Qualified Stock Option Agreement ("Agreement") is made and
entered into as of the Date of Grant indicated below by and between Aftermarket
Technology Holdings Corp., a Delaware corporation (the "Company"), and the
person named below as Participant.
THE SECURITIES REPRESENTED BY THIS AGREEMENT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THAT ACT OR THE COMPANY SHALL HAVE RECEIVED
AN OPINION OF COUNSEL (WHICH COUNSEL AND OPINION SHALL BE
SATISFACTORY TO THE COMPANY'S COUNSEL) THAT REGISTRATION OF
SUCH SECURITIES UNDER THAT ACT AND UNDER THE PROVISIONS OF
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS AGREEMENT 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.
WHEREAS, Participant is an employee or consultant of the Company
and/or one or more of its subsidiaries; and
WHEREAS, pursuant to the Company's Amended and Restated 1994 Stock
Incentive Plan (the "Plan"), the committee of the Board of Directors of the
Company administering the Plan (the "Committee") has approved the grant to
Participant of an option to purchase shares of the common stock, par value $.01,
of the Company (the "Common Stock"), on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. GRANT OF OPTION; CERTAIN TERMS AND CONDITIONS. The Company
hereby grants to Participant, and Participant hereby accepts, as of the Date of
Grant, an option to purchase the number of shares of Common Stock indicated
below (the "Option Shares") at the Exercise Price per share indicated below,
which option shall expire at 5:00 o'clock p.m., California time, on the
Expiration Date indicated below and shall be subject to all of the terms and
conditions set forth in this Agreement (the "Option"). On ___________________,
the Option shall become exercisable to purchase, and shall vest with respect to,
that number of Option Shares
(rounded to the nearest whole share) equal to the total number of Option Shares
multiplied by the Vesting Rate indicated below.
Participant:
Date of Grant:
Number of shares purchasable:
Exercise Price per share:
Expiration Date:
Vesting Rate:
The Option is not intended to qualify as an incentive stock option under
Section 422 of the Internal Revenue Code (an "Incentive Stock Option").
2. ACCELERATION AND TERMINATION OF OPTION.
(a) Termination of Employment or Consulting Arrangement.
(i) TERMINATION WITHIN ONE YEAR AFTER CHANGE OF CONTROL.
In the event that Participant shall cease to be an employee or consultant
to the Company or any of its subsidiaries (such event shall be referred to
herein as the "Termination" of Participant's "Employment") for any reason,
or for no reason, within one year after a Change of Control (as hereinafter
defined), then (A) the portion of the Option that has not vested on or
prior to the date of such Termination of Employment shall fully vest on
such date and (B) the Option shall terminate upon the earlier of the
Expiration Date or the first anniversary of the date of such Termination of
Employment. "Change of Control" shall mean the first to occur of the
following events:
(W) any sale or transfer or other conveyance, whether
director or indirect, of all or substantially all of the assets
of the Company, on a consolidated basis, in one transaction or a
series of related transactions, if, immediately after giving
effect to such transaction, any "person" or "group" (as such
terms are used for purposes of Sections 13(d) and 14(d) of the
Securities Exchange Act, as amended (the "Exchange Act"), whether
or not applicable) (other than an Excluded Person, as defined
herein) is or becomes the "beneficial owner," directly or
indirectly, of more than 35% of the total voting power in the
aggregate normally entitled to vote in the election of directors,
managers or trustees, as applicable, of the transferee;
(X) any "person" or "group" (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act, whether
or not applicable) (other than an Excluded Person) is or becomes
the "beneficial owner," directly or indirectly, of more than 35%
of the total voting power in the aggregate of all classes of
Capital Stock of the Company then outstanding normally entitled
to vote in elections of directors, unless the percentage so owned
by an Excluded Person is greater;
(Y) during any period of 12 consecutive months after the
Issue Date, individuals who at the beginning of any such 12-month
period constituted the Board of Directors of the Company
(together with any new directors whose election by such Board or
whose nomination for election
2
by the shareholders of the Company was approved by a vote of a
majority of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the
Company then in office; or
(Z) a reorganization, merger or consolidation of the
Company (other than a reorganization, merger or consolidation the
sole purpose of which is to change the Company's domicile solely
within the United States) the consummation of which results in
the outstanding securities of any class then subject to the
Option being exchanged for or converted into cash, property
and/or a different kind of securities.
(ii) DEATH OR PERMANENT DISABILITY. If Participant's
Employment is Terminated by reason of the death or Permanent Disability (as
hereinafter defined) of Participant, and a Change of Control shall not have
occurred within one year prior thereto, then (A) the portion of the Option
that has not vested on or prior to the date of such Termination of
Employment shall terminate on such date and (B) the remaining vested
portion of the Option shall terminate upon the earlier of the Expiration
Date or the first anniversary of the date of such Termination of
Employment. "Permanent Disability" shall mean the inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or
that has lasted or can be expected to last for a continuous period of not
less than 12 months. Participant shall not be deemed to have a Permanent
Disability until proof of the existence thereof shall have been furnished
to the Board in such form and manner, and at such times, as the Board may
require. Any determination by the Board that Participant does or does not
have a Permanent Disability shall be final and binding upon the Company and
Participant.
(iii) RETIREMENT. If Participant's Employment is
Terminated by reason of Participant's retirement in accordance with the
Company's then-current retirement policy applicable to employees of the
Company ("Retirement"), and a Change of Control shall not have occurred
within one year prior thereto, then (A) the portion of the Option that has
not vested on or prior to the date of such Retirement shall terminate on
such date and (B) the remaining vested portion of the Option shall
terminate upon the Expiration Date.
(iv) OTHER TERMINATION. If Participant's Employment is
Terminated for no reason, or for any reason other than Retirement, death or
Permanent Disability, and a Change of Control shall not have occurred
within one year prior thereto, then (A) the portion of the Option that has
not vested on or prior to the date of such Termination of Employment shall
terminate on such date and (B) the remaining vested portion of the Option
shall terminate on the date that is 30 days after the date of such
Termination of Employment.
(b) DEATH FOLLOWING TERMINATION OF EMPLOYMENT. Notwithstanding
anything to the contrary in this Agreement, if Participant shall die at any
time after the Termination of his or her Employment and prior to the
Expiration Date, then (i) the portion of the Option that has not vested on
or prior to the date of such death shall terminate on such date and
(ii) the remaining vested portion of the Option shall terminate on the
earlier of the Expiration Date or the first anniversary of the date of such
death.
(c) OTHER EVENTS CAUSING ACCELERATION OF OPTION. The Committee,
in its sole discretion, may accelerate the exercisability of the Option at
any time and for any reason.
3
(d) OTHER EVENTS CAUSING TERMINATION OF OPTION. Notwithstanding
anything to the contrary in this Agreement, the Option shall terminate upon
the consummation of any of the following events, or, if later, the
thirtieth day following the first date upon which such event shall have
been approved by both the Board and the stockholders of the Company:
(i) the dissolution or liquidation of the Company;
(ii) a sale of substantially all of the property and assets
of the Company, unless the terms of such sale shall provide otherwise; or
(iii) a Change of Control, if the Committee elects to
terminate the Option in connection therewith.
(e) EXCLUDED PERSON. For purposes of this Section 2, the term
"Excluded Person" has the meaning ascribed to such term in that certain
Indenture dated as of August 2, 1994 by and among Aftermarket Technology
Corp., a wholly-owned subsidiary of the Company, the Guarantors named
therein and American Bank National Association.
3. ADJUSTMENTS. In the event that the outstanding securities of the
class then subject to the Option are increased, decreased or exchanged for or
converted into cash, property and/or a different number or kind of securities,
or cash, property and/or securities are distributed in respect of such
outstanding securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, reclassification, dividend (other than a
regular, quarterly cash dividend) or other distribution, stock split, reverse
stock split or the like, or in the event that substantially all of the property
and assets of the Company are sold, then, unless such event shall cause the
Option to terminate pursuant to Section 2(b) hereof (i) the terms of such
transaction provide otherwise or (ii) the Committee shall make appropriate and
proportionate adjustments in the number and type of shares or other securities
or cash or other property that may thereafter be acquired upon the exercise of
the Option; PROVIDED, HOWEVER, that any such adjustments in the Option shall be
made without changing the aggregate Exercise Price of the then unexercised
portion of the Option.
4. EXERCISE. The Option shall be exercisable during Participant's
lifetime only by Participant or by his or her guardian or legal representative,
and after Participant's death only by the person or entity entitled to do so
under Participant's last will and testament or applicable intestate law. The
Option may only be exercised by the delivery to the Company of a written notice
of such exercise, which notice shall specify the number of Option Shares to be
purchased (the "Purchased Shares") and the aggregate Exercise Price for such
shares (the "Exercise Notice"), together with payment in full of such aggregate
Exercise Price in cash or by check payable to the Company; PROVIDED, HOWEVER,
that payment of such aggregate Exercise Price may instead be made, in whole or
in part, by the delivery to the Company of a certificate or certificates
representing shares of Common Stock, duly endorsed or accompanied by a duly
executed stock powers, which delivery effectively transfers to the Company good
and valid title to such shares, free and clear of any pledge, commitment, lien,
claim or other encumbrance (such shares to be valued on the basis of the
aggregate Fair Market Value (as defined in the Plan) thereof on the date of such
exercise), provided that the Company is not then prohibited from purchasing or
acquiring such shares of Common Stock.
5. FIRST REFUSAL RIGHTS ON PURCHASED SHARES.
5.1 SALES BY PARTICIPANT. Participant agrees not to Transfer
any Purchased Shares (or any direct or indirect interest therein) or any stock
certificate representing
4
the same, now or hereafter at any time owned by him, except to a Permitted
Transferee or as required or permitted by the provisions of this Section 5.
5.2 BONA FIDE OFFERS.
(a) If Participant desires to Transfer any Purchased Shares and
such Participant shall have received a bona fide arms' length written offer
(a "Bona Fide Offer") from a Person other than an Affiliate of Participant
(the "Outside Party") for the Transfer of such Purchased Shares,
Participant shall give written notice (the "Option Notice") to each of
Aurora Equity Partners L.P., a Delaware limited partnership ("AEP"), Aurora
Overseas Equity Partners I, L.P., a Cayman Islands exempted limited
partnership ("AOEP" and, collectively with AEP, the "Aurora Entities") and
the Company setting forth such desire, which notice shall set forth at
least the name and address of the Outside Party and the price and terms of
the Bona Fide Offer and shall be accompanied by a copy of the Bona Fide
Offer and evidence demonstrating, to the reasonable satisfaction of the
Aurora Entities and the Company, the Outside Party's ability to consummate
such offer. Upon the giving of such Option Notice, the Aurora Entities
shall have the option to purchase, on a pro rata basis, at the price
offered by the Outside Party in the Bona Fide Offer, all or any portion of
the Purchased Shares specified in the Option Notice, said option to be
exercised within ten Business Days following the giving of such Option
Notice, by giving a counter-notice (an "Aurora Counter-Notice") to
Participant (with a copy of such Aurora Counter-Notice to the Company). In
the event that a determination must be made (as described below) as to the
fair market value of non-cash consideration, the ten Business Day period
referred to in the immediately preceding sentence shall be extended to such
greater period of time, not to exceed 20 Business Days, specified in good
faith by a disinterested majority of the Board of Directors. In the event
that the Bona Fide Offer provides, in whole or in part, for non-cash
consideration, the "price" offered by the Outside Party shall be deemed to
be the amount of cash, if any, provided in the Bona Fide Offer plus the
fair market value of the non-cash consideration as determined in good faith
by a disinterested majority of the Board.
(b) Subject to paragraph (d) of this Section 5.2, if either or
both Aurora Entities elect to purchase such Purchased Shares, each such
electing Aurora Entity shall be obligated to purchase, and Participant
shall be obligated to sell, such Purchased Shares at a closing to be held
on the 15th Business Day after the giving of the Aurora Counter-Notice at
the principal executive offices of the Company, or at such other time and
place as may be mutually acceptable to each purchasing Aurora Entity and
Participant. The closing of any such purchase by an Aurora Entity may, at
the election of the purchasing Aurora Entity, be delayed up to 30 Business
Days in order to permit such acquisition of such Purchased Shares to be
made in conformity with applicable laws, including the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended.
(c) Subject to paragraph (d) of this Section 5.2, if the Aurora
Entities do not elect to purchase all of such Purchased Shares proposed to
be sold by Participant within the time limits specified in paragraph (a) of
this Section 5.2, then the Company shall have the option, exercisable by
the delivery of a counter-notice to Participant no later than 15 Business
Days following the date of the Option Notice, to purchase, at the price
offered by the Outside Party in the Bona Fide Offer, all or any portion of
the Shares specified in the Option Notice and not purchased by the Aurora
Entities. In the event that a determination must be made as to the fair
market value of non-cash consideration, the 15 Business Day period referred
to in the immediately preceding sentence shall be extended to such greater
period of time, not to exceed 23 Business Days, specified in good faith by
a disinterested majority of the Board of Directors.
5
(d) If the Aurora Entities and the Company elect to purchase
fewer than all of the Purchased Shares subject to the Bona Fide Offer
within the time limits specified above, then Participant, at any time
within a period of three months from the giving of said Option Notice, may
Transfer all (but not less than all) of the remainder of such Shares to the
Outside Party at the price and on the terms contained in the Bona Fide
Offer; PROVIDED, HOWEVER, that in the event Participant has not so
Transferred said Shares to the Outside Party within said three-month
period, then said Shares thereafter shall continue to be subject to all of
the restrictions contained in this Section 5 as though no Option Notice had
ever been given.
(e) At the closing of any purchase of Purchased Shares pursuant
to this Section 5.2, Participant shall deliver certificates representing
such Shares duly endorsed for transfer and accompanied by all requisite
stock transfer taxes, and such Purchased Shares shall be free and clear of
any and all Liens (other than those arising under this Agreement) and
Participant shall represent and warrant to such effect and to the effect
that Participant is the beneficial owner of such Purchased Shares. The
Person making such purchase shall deliver at such closing, by certified or
bank check, payment in full for the Purchased Shares being purchased by
such Person. At such closing, all of the parties to the transaction shall
execute such additional documents as are otherwise necessary or
appropriate.
(f) If, in any instance, any Aurora Entity or the Company elects
not to exercise its rights hereunder or elects to waive such rights, such
election shall not constitute a waiver of such Person's rights to receive
an Option Notice in the case of any Transfer subsequently proposed by
Participant.
5.3 INVOLUNTARY TRANSFERS. (a) Participant shall notify the
Company and the Aurora Entities promptly upon the occurrence of an Involuntary
Transfer. If an Involuntary Transfer of any of the Purchased Shares owned by
Participant shall occur, the Aurora Entities and the Company shall have the same
rights of first refusal under Section 5.2 above with respect thereto (the
"Transferred Shares") as if the Involuntary Transfer had been a proposed
voluntary Transfer by Participant, except that:
(i) the periods within which such rights must be
exercised shall run from the date notice of the Involuntary
Transfer is received from Participant or its legal
representatives with respect to which such Involuntary Transfer
has occurred;
(ii) such rights shall be exercised by notice to the
involuntary transferee rather than to Participant with respect to
which such Involuntary Transfer has occurred; and
(iii) the purchase price of any Transferred Shares
shall be the Fair Market Value of such Transferred Shares on the
date that the rights of first refusal provided by this
Section 5.3 are exercised with respect to such Transferred
Shares.
(b) At the closing of any purchase of Transferred Shares, the
involuntary transferee shall deliver certificates representing the
Transferred Shares being purchased by the relevant Aurora Entity or the
Company, as the case may be, duly endorsed for transfer and accompanied by
all requisite stock transfer taxes, and such Transferred Shares shall be
free and clear of any and all Liens arising through the action or inaction
of the involuntary transferee (other than those arising under this
Agreement) and the involuntary transferee shall represent and warrant to
such effect and to the effect that
6
such involuntary transferee is the beneficial owner of such Shares. The
Person making such purchase shall deliver at closing, by a certified or
bank check, payment in full of the purchase price, for the Transferred
Shares being purchased by such Person. At such closing, all of the parties
to the transaction shall execute such additional documents as are otherwise
necessary or appropriate.
(c) In the event that the provisions of this Section 5.3 shall
be held to be unenforceable with respect to any particular Involuntary
Transfer of Purchased Shares, the Aurora Entities and the Company shall
have a right of first refusal as set forth in Section 5.2 hereof if the
involuntary transferee subsequently obtains a Bona Fide Offer for and
desires to Transfer such Purchased Shares.
5.4 APPLICATION OF FIRST REFUSAL RIGHTS. The first refusal
rights provided in Sections 5.2 and 5.3 shall not apply to any Transfer of
Purchased Shares:
(a) to the Company, to an Aurora Entity or to a Permitted
Transferee, or
(b) pursuant to an effective registration statement under the
Securities Act of 1933.
5.5 TERMINATION OF FIRST REFUSAL RIGHTS. Notwithstanding
anything herein to the contrary, the rights of first refusal provided in this
Section 5 shall terminate, with respect to all Purchased Shares held or
subsequently acquired by Participant, upon the occurrence of the effective date
(the "Qualified IPO Date") of the registration statement for the first
underwritten public offering of the Common Stock; PROVIDED that there are sales
pursuant to such registration statement of shares of Common Stock for an
aggregate offering price of not less than $20,000,000.
5.6 SURVIVAL. The provisions of this Section 5 shall survive
the exercise of all or any part of the Option and shall continue in effect for
so long as Participant or any Permitted Transferee thereof owns or controls any
Purchased Shares.
6. THIRD PARTY OFFER FOR ALL OUTSTANDING SHARES.
6.1 "DRAG-ALONG" OBLIGATIONS. If either Aurora Entity shall
receive an offer in writing from a third party which is not an Affiliate of such
Aurora Entity (a "Third Party Offeror") to purchase all of the issued and
outstanding Shares held by such Aurora Entity, to effect a business combination
of the Company with such Person or an Affiliate thereof or to purchase all or
substantially all the assets of the Company (each an "Acquisition Proposal"),
and the Aurora Entities desire to accept or cause the Company to accept such
Acquisition Proposal, either of the Aurora Entities shall deliver a notice (an
"Acquisition Notice") to the Company (which shall deliver a copy of such
Acquisition Notice to Participant), which Acquisition Notice shall contain a
copy of such Acquisition Proposal, including the name and address of the Third
Party Offeror and the terms of the Acquisition Proposal. If Participant
receives any Acquisition Proposal, Participant shall promptly transmit such
Acquisition Proposal to the Company and each Aurora Entity (which the Aurora
Entities may elect not to pursue without any liability or obligation to
Participant or the Company). Participant agrees that, upon receipt of such
Acquisition Notice, Participant shall be obligated to sell all of Participant's
Purchased Shares to the Third Party Offeror upon the terms and conditions set
forth in the Acquisition Proposal, or, as the case may be, to vote Participant's
Purchased Shares in favor of the merger or sale of all or substantially all the
assets of the Company as described in the Acquisition Proposal, and otherwise to
take all actions necessary or appropriate to cause the Company to consummate the
proposed transaction. In any such transaction, all Shares of Common Stock shall
be purchased at, or be converted into the right to receive, the same price per
Share of Common Stock.
7
6.2 TERMINATION OF DRAG-ALONG OBLIGATIONS. Notwithstanding
anything herein to the contrary, the rights and obligations provided for in this
Section 6 shall terminate, with respect to all Purchased Shares held or
subsequently acquired by Participant, upon the occurrence of the Qualified IPO
Date.
6.3 SURVIVAL. The provisions of this Section 6 shall survive
the exercise of all or any part of the Option and shall continue in effect for
so long as Participant or any Permitted Transferee thereof owns or controls any
Purchased Shares.
7. PAYMENT OF WITHHOLDING TAXES. If the Company becomes obligated
to withhold an amount on account of any tax imposed as a result of the exercise
of the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax, then Participant shall, on the first day upon which the Company becomes
obligated to pay such amount to the appropriate taxing authority, pay such
amount to the Company in cash or by check payable to the Company.
8. NOTICES. All notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given if delivered personally or five days after mailing by certified
or registered mail, postage prepaid, return receipt requested, to the Company at
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention:
Xxxx X. Xxxxx, or to Participant at the address set forth beneath his or her
signature on the signature page hereto, or at such other addresses as they may
designate by written notice in the manner aforesaid.
9. STOCK EXCHANGE REQUIREMENTS; APPLICABLE LAWS. Notwithstanding
anything to the contrary in this Agreement, no shares of stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, shall be issued or delivered if (a) such shares have not been admitted
to listing upon official notice of issuance on each stock exchange upon which
shares of that class are then listed or (b) in the opinion of counsel to the
Company, such issuance or delivery would cause the Company to be in violation of
or to incur liability under any federal, state or other securities law, or any
requirement of any stock exchange listing agreement to which the Company is a
party, or any other requirement of law or of any administrative or regulatory
body having jurisdiction over the Company.
10. NONTRANSFERABILITY. Neither the Option nor any interest therein
may be Transferred in any manner other than by will or the laws of descent and
distribution.
11. PLAN. The Option is granted pursuant to the Plan, as in effect
on the Date of Grant, and is subject to all the terms and conditions of the
Plan, as the same may be amended from time to time; PROVIDED, HOWEVER, that no
such amendment shall deprive Participant, without his or her consent, of the
Option or of any of Participant's rights under this Agreement. The
interpretation and construction by the Committee of the Plan, this Agreement,
the Option and such rules and regulations as may be adopted by the Committee for
the purpose of administering the Plan shall be final and binding upon
Participant. Until the Option shall expire, terminate or be exercised in full,
the Company shall, upon written request therefor, send a copy of the Plan, in
its then-current form, to Participant or any other person or entity then
entitled to exercise the Option.
12. STOCKHOLDER RIGHTS. No person or entity shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of any Option
Shares until the Option shall have been duly exercised to purchase such Option
Shares in accordance with the provisions of this Agreement.
13. EMPLOYMENT RIGHTS. No provision of this Agreement or of the
Option granted hereunder shall (a) confer upon Participant any right to become
or continue to be engaged as an employee or to become or continue to be engaged
as a consultant of the Company or any of
8
its subsidiaries, (b) affect the right of the Company and each of its
subsidiaries to terminate the Employment of Participant, with or without cause,
or (c) confer upon Participant any right to participate in any welfare or
benefit plan or other program of the Company or any of its subsidiaries other
than the Plan. PARTICIPANT HEREBY ACKNOWLEDGES AND AGREES THAT THE COMPANY AND
EACH OF ITS SUBSIDIARIES MAY TERMINATE THE EMPLOYMENT OF PARTICIPANT AT ANY TIME
AND FOR ANY REASON, OR FOR NO REASON, UNLESS PARTICIPANT AND THE COMPANY OR SUCH
SUBSIDIARY ARE PARTIES TO A WRITTEN EMPLOYMENT OR CONSULTING AGREEMENT THAT
EXPRESSLY PROVIDES OTHERWISE.
14. GOVERNING LAW. This Agreement and the Option granted hereunder
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware without reference to choice or conflict of law principles.
15. DEFINITIONS.
"AFFILIATE," when used with reference to any Person, means any other
Person directly or indirectly, through one or more intermediaries, controlling,
controlled by or under common control with such first Person and, when used with
reference to any natural person, shall also include such person's spouse,
parents and descendants (whether by blood or adoption, and including
stepchildren) and the spouses of such persons. "Affiliated with" shall have a
correlative meaning to the term "Affiliate."
"BUSINESS DAY" shall mean any day on which banking institutions in Los
Angeles, California are not authorized or obligated by law to close.
"INVOLUNTARY TRANSFER" means any transfer, proceeding or action (other
than to a Permitted Transferee) by or in which Participant shall be deprived or
divested of any right, title or interest in or to any Purchased Shares,
including, without limitation, any seizure under levy of attachment or
execution, any foreclosure upon a pledge of such Purchased Shares, any transfer
in connection with bankruptcy (whether pursuant to the filing of a voluntary or
an involuntary petition under the Federal Bankruptcy Code of 1978, or any
modifications or revisions thereto) or other court proceeding to a debtor in
possession, trustee in bankruptcy or receiver or other officer or agency, or any
transfer to a state or to a public officer or agency pursuant to any statute
pertaining to escheat or abandoned property.
"LIENS" means any and all liens, claims, options, charges,
encumbrances, voting trusts, irrevocable proxies or other rights of any kind or
nature.
"PERMITTED TRANSFEREE" means, as to Participant, (i) the successors in
interest to such Participant, in the case of a Transfer upon the death of
Participant, (ii) Participant's spouse, parents and descendants (whether by
blood or adoption, and including stepchildren) and the spouses of such persons,
(iii) any transferee pursuant to a divorce or separation agreement or a final
decree of a court in a divorce action or upon or occasioned by the incompetence
of such Participant and (iv) in the case of a Transfer during such Participant's
lifetime, any Person in which no Person has any interest (directly or
indirectly) except for any of such Participant, such Participant's spouse,
parents and descendants (whether by blood or adoption, and including
stepchildren) and the spouses of such persons; PROVIDED that in respect of any
Transfer by any Participant during such Participant's lifetime pursuant to
clause (ii) or (iv), Participant shall retain voting power over all of the
outstanding Shares being Transferred; and PROVIDED FURTHER, that, in the case of
a Transfer to a Person (such as a partnership or a trust) as to which a
governing instrument exists, (x) Participant shall furnish a copy of such
governing instrument to the Company in advance, (y) the Company shall be
reasonably satisfied that the terms of such governing instrument shall not be
inconsistent with the terms of this Agreement and (z) during the period that
such Common Stock is held by such Person, the Participant shall ensure that the
terms of such governing instrument shall not be amended in any manner that
results in such governing
9
instrument being inconsistent with the terms of this Agreement; PROVIDED, that
prior written notice of any such Transfer is given to the Company by Participant
and that the Permitted Transferee shall agree in advance of such Transfer to be
bound by the terms of Section 5 hereof pursuant to a written agreement
reasonably satisfactory to the Company and the Aurora Entities.
"PERSON" means a company, a corporation, an association, a
partnership, a limited liability company, an organization, a joint venture, a
trust or other legal entity, an individual, a government or political
subdivision thereof or a governmental agency.
"TRANSFER" means any sale, exchange, assignment, transfer, pledge,
mortgage, hypothecation, gift, grant, encumbrance or other disposition of any
kind, whether voluntary, involuntary or by operation of law and whether direct
or indirect by transfer of any interest in the subject property or otherwise.
10
IN WITNESS WHEREOF, the Company and Participant have duly executed
this Agreement as of the Date of Grant.
AFTERMARKET TECHNOLOGY HOLDINGS CORP.
By
--------------------------------
Name:
Title:
PARTICIPANT:
----------------------------------
Signature
----------------------------------
Xxxxxx Xxxxxxx
----------------------------------
Xxxx, Xxxxx and Zip Code
----------------------------------
Social Security Number
11
