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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
June 8, 1999
AMERIGON INCORPORATED
---------------------------------------
(Exact name of registrant as specified in its charter)
California 0-21810 95-4318554
- ------------------ -------------- -------------------
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
5462 Irwindale Avenue, Irwindale, California 91706
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (626) 815-7400
Not appliable.
(Former name or former address, if changed since last report.)
Item 1. Change in Control of Registrant.
On June 8, 1999, Amerigon Incorporated (the "Company") completed
a private placement of 4,500 shares of convertible preferred
stock designated as Series A Preferred Stock to Westar Capital II
LLC ("Westar") and 4,500 shares of Series A Preferred Stock to
Big Beaver Investments LLC ("Big Beaver," Westar and Big Beaver
are collectively referred to herein as the "Investors") pursuant
to a Securities Purchase Agreement dated March 29, 1999 between
Amerigon and the Investors. The Investors, which are both
private investment companies, paid consideration in an aggregate
amount of $9,001,000 for the Series A Preferred Stock as well as
contingent warrants which are exercisable to the extent that
warrants held by entities other than Investors are exercised.
The net proceeds to the Company were approximately $6,901,000,
reflecting transaction costs and the repayment of a $1.2 million
bridge loan from an affiliate of the Investors.
The Series A Preferred Stock has voting rights equal to the
number of shares the Series A Preferred Stock is convertible into
and the Series A Preferred Stock can convert into a number of
shares of Amerigon Common Stock, no par value, equal to the
Series A Preferred Stock's liquidation preference divided by the
conversion price. Each share of Series A Preferred Stock has a
liquidation preference equal to $1,000 plus accrued but unpaid
dividends and an initial conversion price of $1.675, subject to
anti-dilution adjustment. As of June 8, 1999, the Series A
Preferred Stock purchased by the Investors represented
approximately 74% of the voting power of the Company.
Pursuant to the terms of the Series A Preferred Stock, the size
of the Board of Directors was fixed at 7 and the holders of the
Series A Preferred Stock have the right to elect 5 of the 7
Directors. As is further explained in a joint Schedule 13D dated
April 8, 1999, the Investors agreed to vote for 2 nominees
selected by Westar, 2 nominees selected by Big Beaver and 1
nominee mutually agreeable to the Investors who is an auto
industry expert.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits
(a) Exhibits.
Exhibit Number Description
3.1 Certificate of Determination of Rights,
Preferences and Privileges of Series A
Preferred Stock of the Company filed with the
California Secretary of State May 26, 1999
5.1 Securities Purchase Agreement dated March 29,
1999 by and among the Company, Westar Capital
II LLC and Big Beaver Investments LLC
5.2 Investors' Rights Agreement dated June 8,
1999 by and among the Company, Westar Capital
II LLC and Big Beaver Investments LLC
5.3.1 Contingent Warrant dated June 8, 1999 from
the Company to Westar Capital II LLC relating
to Class A Warrants of the Company
5.3.2 Contingent Warrant dated June 8, 1999 from
the Company to Big Beaver Investments LLC
relating to Class A Warrants of the Company
5.3.3 Contingent Warrant dated June 8, 1999 from
the Company to Westar Capital II LLC relating
to the Unit Purchase Option of the Company
5.3.4 Contingent Warrant dated June 8, 1999 from
the Company to Big Beaver Investments LLC
relating to the Unit Purchase Option of the
Company
5.3.5 Contingent Warrant dated June 8, 1999 from
the Company to Westar Capital II LLC relating
to warrants issued to Spencer Trask
Securities Incorporated and affiliates
5.3.6 Contingent Warrant dated June 8, 1999 from
the Company to Big Beaver Investments LLC
warrants issued to Spencer Trask Securities
Incorporated and affiliates
5.3.7 Contingent Warrant dated June 8, 1999 from
the Company to Westar Capital II LLC relating
to warrants issued to Lido Consulting and
Sutro and Company
5.3.8 Contingent Warrant dated June 8, 1999 from
the Company to Big Beaver Investments LLC
warrants issued to Lido Consulting and Sutro
and Company
99.1 Press release issued June 9, 1999.
[FN]
Previously filed as an exhibit to the Company's Current
Report on Form 10-K for the period ended December 31, 1998, and
incorporated herein by reference.
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
AMERIGON INCORPORATED
By: /s/ Lon E. Bell
------------------------
Lon E. Bell
Chief Executive Officer
Date: June 18, 1999
CERTIFICATE OF DETERMINATION
OF RIGHTS, PREFERENCES AND PRIVILEGES
OF
THE SERIES A PREFERRED STOCK
OF
AMERIGON INCORPORATED
Pursuant to the Provisions of Section 401 of the
General Corporation Law of the State of California
The undersigned, Lon E. Bell and Sandra L. Grouf,
the Chairman of the Board and Assistant Secretary,
respectively, of Amerigon Incorporated, a California corporation
(the "Corporation"), do hereby certify as follows:
A. That the following resolution designates nine
thousand shares of Series A Preferred Stock, and that as of the
date hereof, no shares of Series A Preferred Stock have been
issued or are outstanding.
B. That the Board of Directors of the Corporation,
pursuant to the authority so vested in it by the Articles of
Incorporation of the Corporation and in accordance with the
provisions of Section 401 of the General Corporation Law of the
State of California, adopted the following resolution creating a
series of Preferred Stock designated as "Series A Preferred
Stock":
WHEREAS, THE ARTICLES OF INCORPORATION OF THIS
CORPORATION AUTHORIZE THE ISSUANCE OF ONE OR MORE SERIES OF
PREFERRED STOCK ("PREFERRED STOCK") OF THE CORPORATION AND
AUTHORIZE THE BOARD OF DIRECTORS TO DETERMINE THE RIGHTS,
PREFERENCES, PRIVILEGES AND RESTRICTIONS GRANTED TO OR
IMPOSED UPON ANY WHOLLY UNISSUED SERIES OF PREFERRED STOCK
AND TO FIX THE NUMBER OF SHARES OF SUCH SERIES;
NOW, THEREFORE, BE IT RESOLVED, THAT PURSUANT TO THE
AUTHORITY EXPRESSLY GRANTED TO AND VESTED IN THE BOARD OF
DIRECTORS OF THE CORPORATION PURSUANT TO THE ARTICLES OF
INCORPORATION, THERE IS HEREBY CREATED ONE SERIES OF
PREFERRED STOCK, WITHOUT PAR VALUE, OF THE CORPORATION WHICH
SHALL BE DESIGNATED "SERIES A PREFERRED STOCK." THE NUMBER
OF SHARES OF SERIES A PREFERRED STOCK AUTHORIZED FOR
ISSUANCE IS NINE THOUSAND. IN ADDITION TO THOSE SET FORTH
IN THE ARTICLES OF INCORPORATION OF THE CORPORATION, THE
SERIES A PREFERRED STOCK SHALL HAVE THE POWERS AND
PREFERENCES, THE RELATIVE, PARTICIPATING, OPTIONAL OR OTHER
RIGHTS, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS
SET FORTH BELOW:
1. Dividend Provisions. Subject to the rights of
series of Preferred Stock which may from time to time come into
existence, the holders of shares of Series A Preferred Stock
shall be entitled to receive dividends, out of any assets legally
available therefor, in an amount equal to the dividends that
would be paid on the outstanding Class A Common Stock of the
corporation into which the Series A Preferred Stock is
convertible on an as converted basis, payable when, as and if
declared by the Board of Directors.
2. Liquidation Preference.
(a) In the event of any liquidation, dissolution or
winding up of this corporation, either voluntary or involuntary,
subject to the rights of series of Preferred Stock that may from
time to time come into existence, the holders of Series A
Preferred Stock shall be entitled to receive, prior and in
preference to any distribution of any of the assets of this
corporation to the holders of Common Stock by reason of their
ownership thereof, an amount per share equal to the sum of (i)
$1,000 for each outstanding share of Series A Preferred Stock
(the "Original Series A Issue Price"), (ii) an amount equal to 7%
of the Original Series A Issue Price annually, but only until the
fourth anniversary of the issuance of the Series A Preferred
Stock, and (iii) an amount equal to any declared but unpaid
dividends on such share (the amounts in (ii) and (iii) being
referred to herein as the "Premium"). If upon the occurrence of
such event, the assets and funds thus distributed among the
holders of the Series A Preferred Stock shall be insufficient to
permit the payment to such holders of the full aforesaid
preferential amounts, then, subject to the rights of series of
Preferred Stock that may from time to time come into existence,
the entire assets and funds of the corporation legally available
for distribution shall be distributed ratably among the holders
of the Series A Preferred Stock in proportion to the amount of
such stock owned by each such holder.
(b) Upon the completion of the distribution required
by subparagraph (a) of this Section 2 and any other distribution
that may be required with respect to series of Preferred Stock
that may from time to time come into existence, if assets remain
in this corporation, the holders of the Common Stock of this
corporation, shall receive all of the remaining assets of the
corporation.
(c)(i) For purposes of this Section 2, a
liquidation, dissolution or winding up of this corporation shall
be deemed to be occasioned by, or to include, (A) the acquisition
of the corporation by another entity by means of any transaction
or series of related transactions (including, without limitation,
any reorganization, merger or consolidation but, excluding any
merger effected exclusively for the purpose of changing the
domicile of the corporation); or (B) a sale of all or
substantially all of the assets of the corporation; unless the
corporation's shareholders of record as constituted immediately
prior to such acquisition or sale will, immediately after such
acquisition or sale (by virtue of securities issued as
consideration for the corporation's acquisition or sale or
otherwise) hold at least 50% of the voting power of the surviving
or acquiring entity.
(ii) In any of such events, if the consideration
received by the corporation is other than cash, its value will be
deemed its fair market value. Any securities shall be valued as
follows:
(A) Securities not subject to investment
letter or other similar restrictions on free marketability:
(1) If traded on a securities exchange
or on the NASDAQ National Market, the value shall be deemed to be
the average of the closing prices of the securities on such
exchange over the thirty-day period ending three (3) days prior
to the closing;
(2) If actively traded over-the-counter
or on NASDAQ (other than on the National Market), the value shall
be deemed to be the average of the closing bid or sale prices
(whichever is applicable) over the thirty-day period ending three
(3) days prior to the closing; and
(3) If there is no active public
market, the value shall be the fair market value thereof, as
determined in good faith by the Board of Directors of the
corporation.
(B) The method of valuation of securities
subject to investment letter or other restrictions on free
marketability (other than restrictions arising solely by virtue
of a shareholder's status as an affiliate or former affiliate)
shall be to make an appropriate discount from the market value
determined as above in (A) (1), (2) or (3) to reflect the
approximate fair market value thereof, as determined in good
faith by the Board of Directors of the corporation.
(iii) In the event the requirements of this
subsection 2(c) are not complied with, this corporation shall
forthwith either:
(A) cause such closing to be postponed until
such time as the requirements of this Section 2 have been
complied with; or
(B) cancel such transaction, in which event
the rights, preferences and privileges of the holders of the
Series A Preferred Stock shall revert to and be the same as such
rights, preferences and privileges existing immediately prior to
the date of the first notice referred to in subsection 2(c)(iv)
hereof.
(iv) The corporation shall give each holder of
record of Series A Preferred Stock written notice of such
impending transaction not later than twenty (20) days prior to
(A) the date of the shareholders' meeting called to approve such
transaction, (B) the effective date of a written consent of the
shareholders to approve the transaction, or (C) the closing of
such transaction, whichever is earlier, and shall also notify
such holders in writing of the final approval of such
transaction. The first of such notices shall describe the
material terms and conditions of the impending transaction and
the provisions of this Section 2, and the corporation shall
thereafter give such holders prompt notice of any material
changes relating to the transaction. The transaction shall in no
event take place sooner than twenty (20) days after the
corporation has given the first notice provided for herein or
sooner than ten (10) days after the corporation has given notice
of any material changes provided for herein; provided, however,
that such periods may be shortened upon the written consent of
the holders of Preferred Stock that are entitled to such notice
rights or similar notice rights and that represent at least a
majority of the voting power of all then outstanding shares of
such Preferred Stock.
3. Redemption.
(a) Subject to the rights of series of Preferred Stock
which may from time to time come into existence, on or at any
time after January 1, 2003, this corporation may at any time it
may lawfully do so, at the option of the Board of Directors,
redeem in whole or in part the Series A Preferred Stock (such
date of redemption is referred to herein as the "Series A
Redemption Date") by paying in cash therefor a sum equal to the
Original Series A Issue Price plus the Premium, as adjusted for
any stock dividends, combinations or splits with respect to such
shares (the "Series A Redemption Price"); provided, however, that
this corporation may only redeem shares of Series A Preferred
Stock hereunder if the average of the closing prices of the Class
A Common Stock as reported by Nasdaq (or such other exchange or
market on which the shares are then traded) for the sixty trading
days preceeding the date the notice of redemption is given in
accordance with subsection (b) is at least 4 times greater than
the then applicable Conversion Price (as defined in Section 4(a)
below). Any redemption effected pursuant to this subsection
(3)(a) shall be made on a pro rata basis among the holders of the
Series A Preferred Stock in proportion to the number of shares of
Series A Preferred Stock then held by them.
(b) As used herein and in subsection (3)(c) and (d)
below, the term "Redemption Date" shall refer to each "Series A
Redemption Date" and the term "Redemption Price" shall refer to
each "Series A Redemption Price." Subject to the rights of
series of Preferred Stock which may from time to time come into
existence, at least fifteen (15) but no more than thirty (30)
days prior to each Redemption Date, written notice shall be
mailed, first class postage prepaid, to each holder of record (at
the close of business on the business day next preceding the day
on which notice is given) of the Series A Preferred Stock to be
redeemed, at the address last shown on the records of this
corporation for such holder, notifying such holder of the
redemption to be effected, specifying the number of shares to be
redeemed from such holder, the Redemption Date, the Redemption
Price, the place at which payment may be obtained and calling
upon such holder to surrender to this corporation, in the manner
and at the place designated, his, her or its certificate or
certificates representing the shares to be redeemed (the
"Redemption Notice"). Except as provided in subsection (3)(c) on
or after the Redemption Date, each holder of Series A Preferred
Stock to be redeemed shall surrender to this corporation the
certificate or certificates representing such shares, in the
manner and at the place designated in the Redemption Notice, and
thereupon the Redemption Price of such shares shall be payable to
the order of the person whose name appears on such certificate or
certificates as the owner thereof and each surrendered
certificate shall be cancelled. In the event less than all the
shares represented by any such certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
(c) From and after the Redemption Date, unless there
shall have been a default in payment of the Redemption Price,
all rights of the holders of shares of Series A Preferred Stock
designated for redemption in the Redemption Notice as holders
of Series A Preferred Stock (except the right to receive the
Redemption Price without interest upon surrender of their
certificate or certificates) shall cease with respect to such
shares, and such shares shall not thereafter be transferred on
the books of this corporation or be deemed to be outstanding for
any purpose whatsoever. Subject to the rights of series of
Preferred Stock which may from time to time come into existence,
if the funds of the corporation legally available for redemption
of shares of Series A Preferred Stock on any Redemption Date are
insufficient to redeem the total number of shares of Series A
Preferred Stock to be redeemed on such date, those funds which
are legally available will be used to redeem the maximum possible
number of such shares ratably among the holders of such shares to
be redeemed based upon their holdings of Series A Preferred
Stock. The shares of Series A Preferred Stock not redeemed shall
remain outstanding and entitled to all the rights and preferences
provided herein. Subject to the rights of series of Preferred
Stock which may from time to time come into existence, at any
time thereafter when additional funds of the corporation are
legally available for the redemption of shares of Series A
Preferred Stock, such funds will immediately be used to redeem
the balance of the shares which the corporation has become
obliged to redeem on any Redemption Date but which it has not
redeemed.
(d) On or prior to each Redemption Date, this
corporation shall deposit the Redemption Price of all shares of
Series A Preferred Stock designated for redemption in the
Redemption Notice, and not yet redeemed or converted, with a bank
or trust corporation having aggregate capital and surplus in
excess of $100,000,000 as a trust fund for the benefit of the
respective holders of the shares designated for redemption and
not yet redeemed, with irrevocable instructions and authority to
the bank or trust corporation to publish the notice of redemption
thereof and pay the Redemption Price for such shares to their
respective holders on or after the Redemption Date, upon receipt
of notification from the corporation that such holder has
surrendered his, her or its share certificate to the corporation
pursuant to subsection (3)(b) above. As of the date of such
deposit (even if prior to the Redemption Date), the deposit shall
constitute full payment of the shares to their holders, and from
and after the date of the deposit the shares so called for
redemption shall be redeemed and shall be deemed to be no longer
outstanding, and the holders thereof shall cease to be
shareholders with respect to such shares and shall have no rights
with respect thereto except the rights to receive from the bank
or trust corporation payment of the Redemption Price of the
shares, without interest, upon surrender of their certificates
therefor, and the right to convert such shares as provided in
Section 4 hereof. Such instructions shall also provide that any
moneys deposited by the corporation pursuant to this subsection
(3)(d) for the redemption of shares thereafter converted into
shares of the corporation's Common Stock pursuant to Section 4
hereof prior to the Redemption Date shall be returned to the
Corporation forthwith upon such conversion. The balance of any
moneys deposited by this corporation pursuant to this subsection
(3)(d) remaining unclaimed at the expiration of two (2) years
following the Redemption Date shall thereafter be returned to
this corporation upon its request expressed in a resolution of
its Board of Directors.
4. Conversion. The holders of the Series A Preferred
Stock shall have conversion rights as follows (the "Conversion
Rights"):
(a) Right to Convert. Each share of Series A
Preferred Stock shall be convertible, at the option of the holder
thereof, at any time after the date of issuance of such share and
on or prior to the fifth day prior to the Redemption Date, if
any, as may have been fixed in any Redemption Notice with respect
to the Series A Preferred Stock, at the office of this
corporation or any transfer agent for such stock, into such
number of fully paid and nonassessable shares of Class A Common
Stock as is determined by dividing the Original Series A Issue
Price by the conversion price ("Conversion Price") applicable to
such share, determined as hereafter provided, in effect on the
date the certificate is surrendered for conversion. The initial
Conversion Price per share for shares of Series A Preferred Stock
shall be $1.675; provided, however, that the Conversion Price for
the Series A Preferred Stock shall be subject to adjustment as
set forth in subsection 4(d).
(b) Automatic Conversion. Each share of Series A
Preferred Stock shall automatically be converted into shares of
Class A Common Stock at the Conversion Price at the time in
effect for such Series A Preferred Stock immediately upon the
date specified by written consent or agreement of the holders of
a majority of the then outstanding shares of Series A Preferred
Stock.
(c) Mechanics of Conversion. Before any holder of
Series A Preferred Stock shall be entitled to convert the same
into shares of Class A Common Stock, he shall surrender the
certificate or certificates therefor, duly endorsed, at the
office of this corporation or of any transfer agent for the
Series A Preferred Stock, and shall give written notice to
this corporation at its principal corporate office, of the
election to convert the same and shall state therein the
name or names in which the certificate or certificates for
shares of Class A Common Stock are to be issued. This
corporation shall, as soon as practicable thereafter, issue
and deliver at such office to such holder of Series A Preferred
Stock, or to the nominee or nominees of such holder, a certificate
or certificates for the number of shares of Class A Common Stock
to which such holder shall be entitled as aforesaid. Such
conversion shall be deemed to have been made immediately prior
to the close of business on the date of such surrender of the
shares of Series A Preferred Stock to be converted, and the
person or persons entitled to receive the shares of Class A
Common Stock issuable upon such conversion shall be treated
for all purposes as the record holder or holders of such
shares of Class A Common Stock as of such date. If the
conversion is in connection with an underwritten offering
of securities registered pursuant to the Securities Act
of 1933, the conversion may, at the option of any holder
tendering Series A Preferred Stock for conversion, be
conditioned upon the closing with the underwriters of the
sale of securities pursuant to such offering, in which event
the person(s) entitled to receive the Class A Common Stock
upon conversion of the Series A Preferred Stock shall not
be deemed to have converted such Series A Preferred Stock until
immediately prior to the closing of such sale of securities.
(d) Conversion Price Adjustments of Preferred Stock for
Certain Dilutive Issuances, Splits and Combinations. The
Conversion Price of the Series A Preferred Stock shall be
subject to adjustment from time to time as follows:
(i) In the event the corporation should at any time
or from time to time after the date upon which any shares of
Series A Preferred Stock were first issued (the "Purchase Date"
with respect to such series) fix a record date for the
effectuation of a split or subdivision of the outstanding shares
of Class A Common Stock or the determination of holders of Class
A Common Stock entitled to receive a dividend or other
distribution payable in additional shares of Class A Common
Stock without payment of any consideration by such holder for
the additional shares of Class A Common Stock, then, as of such
record date (or the date of such dividend distribution, split or
subdivision if no record date is fixed), the Conversion Price of
the Series A Preferred Stock shall be appropriately decreased so
that the number of shares of Class A Common Stock issuable on
conversion of each share of such series shall be increased in
proportion to such increase of the aggregate of shares of Class
A Common Stock outstanding. In the event the corporation shall
declare or pay, without consideration, any dividend on the Class
A Common Stock payable in any right to acquire Class A Common
Stock for no consideration, then the corporation shall be deemed
to have made a dividend payable in Class A Common Stock in an
amount of shares equal to the maximum number of shares issuable
upon exercise of such rights to acquire Class A Common Stock.
(ii) If the number of shares of Class A Common Stock
outstanding at any time after the Purchase Date is decreased by
a combination of the outstanding shares of Common Stock, then,
following the record date of such combination, the Conversion
Price for the Series A Preferred Stock shall be appropriately
increased so that the number of shares of Class A Common Stock
issuable on conversion of each share of such series shall be
decreased in proportion to such decrease in outstanding shares.
(iii) All adjustments to the Conversion Price will
be calculated to the nearest cent of a dollar. No adjustment in
the Conversion Price will be required unless such adjustment
would require an increase or decrease of at least one cent per
dollar; provided, however, that any adjustments which by reason
of this Section 4(d)(iii) are not required to be made shall be
carried forward and taken into account in any subsequent
adjustment. All adjustments to the Conversion Price shall be
made successively.
(e) Other Distributions. In the event this
corporation shall declare a distribution payable in securities
of other persons, evidences of indebtedness issued by this
corporation or other persons, assets (excluding cash dividends)
or options or rights not referred to in subsection 4(d), then, in
each such case for the purpose of this subsection 4(e), the
holders of the Series A Preferred Stock shall be entitled to a
proportionate share of any such distribution as though they were
the holders of the number of shares of Class A Common Stock of
the corporation into which their shares of Series A Preferred
Stock are convertible as of the record date fixed for the
determination of the holders of Class A Common Stock of the
corporation entitled to receive such distribution.
(f) Recapitalizations and Reorganizations. If the
Class A Common Stock issuable upon conversion of the Series A
Preferred Stock shall be changed into or exchanged for a
different class or classes of capital stock, or other securities
or property whether by reorganization, recapitalization or
otherwise (other than a subdivision, combination or merger or
sale of assets transaction provided for elsewhere in this Section
4 or Section 2) provision shall be made so that the holders of
the Series A Preferred Stock shall thereafter be entitled to
receive upon conversion of the Series A Preferred Stock the
number of shares of stock or other securities or property, to
which a holder of Class A Common Stock deliverable upon
conversion would have been entitled on such recapitalization or
reorganization. In any such case, appropriate adjustment shall
be made in the application of the provisions of this Section 4
with respect to the rights of the holders of the Series A
Preferred Stock after the recapitalization or reorganization to
the end that the provisions of this Section 4 (including
adjustment of the Conversion Price then in effect and the number
of shares purchasable upon conversion of the Series A Preferred
Stock) shall be applicable after that event as nearly equivalent
as may be practicable.
(g) No Impairment. This corporation will not, by
amendment of its Articles of Incorporation or through any
reorganization, recapitalization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms to be observed or
performed hereunder by this corporation, but will at all times in
good faith assist in the carrying out of all the provisions of
this Section 4 and in the taking of all such action as may be
necessary or appropriate in order to protect the Conversion
Rights of the holders of the Series A Preferred Stock against
impairment.
(h) No Fractional Shares and Certificate as to
Adjustments.
(i) No fractional shares shall be issued upon the
conversion of any share or shares of the Series A Preferred
Stock, and the number of shares of Class A Common Stock to be
issued shall be rounded to the nearest whole share. Whether or
not fractional shares are issuable upon such conversion shall be
determined on the basis of the total number of shares of Series A
Preferred Stock the holder is at the time converting into Class A
Common Stock and the number of shares of Class A Common Stock
issuable upon such aggregate conversion.
(ii) Upon the occurrence of each adjustment or
readjustment of the Conversion Price of Series A Preferred Stock
pursuant to this Section 4, this corporation, at its expense,
shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and prepare and furnish to each
holder of Series A Preferred Stock a certificate setting forth
such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. This
corporation shall, upon the written request at any time of any
holder of Series A Preferred Stock, furnish or cause to be
furnished to such holder a like certificate setting forth
(A) such adjustment and readjustment, (B) the Conversion Price
for such series of Preferred Stock at the time in effect, and
(C) the number of shares of Class A Common Stock and the amount,
if any, of other property which at the time would be received
upon the conversion of a share of Series A Preferred Stock.
(i) Notices of Record Date. In the event of any
taking by this corporation of a record of the holders of any
class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend (other than a
cash dividend) or other distribution, any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right
(except the right to vote), this corporation shall mail to each
holder of Series A Preferred Stock, at least 20 days prior to the
date specified therein, a notice specifying the date on which any
such record is to be taken for the purpose of such dividend,
distribution or right, and the amount and character of such
dividend, distribution or right.
(j) Reservation of Stock Issuable Upon Conversion.
This corporation shall at all times reserve and keep available
out of its authorized but unissued shares of Class A Common
Stock, solely for the purpose of effecting the conversion of the
shares of the Series A Preferred Stock, such number of its shares
of Class A Common Stock as shall from time to time be sufficient
to effect the conversion of all outstanding shares of the
Series A Preferred Stock; and if at any time the number of
authorized but unissued shares of Class A Common Stock shall not
be sufficient to effect the conversion of all then outstanding
shares of the Series A Preferred Stock, in addition to such other
remedies as shall be available to the holder of such Series A
Preferred Stock, this corporation will take such corporate action
as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Class A Common Stock to
such number of shares as shall be sufficient for such purposes,
including, without limitation, engaging in best efforts to obtain
the requisite shareholder approval of any necessary amendment to
these articles.
(k) Notices. Any notice required by the provisions of
this Section 4 to be given to the holders of shares of Series A
Preferred Stock shall be deemed given if deposited in the United
States mail, postage prepaid, and addressed to each holder of
record at his address appearing on the books of this corporation.
5. Voting Rights. The holder of each share of
Series A Preferred Stock shall have the right to one vote for
each share of Class A Common Stock into which such Series A
Preferred Stock could then be converted, and with respect to such
vote, such holder shall have full voting rights and powers equal
to the voting rights and powers of the holders of Class A Common
Stock, and shall be entitled, notwithstanding any provision
hereof, to notice of any shareholders' meeting in accordance with
the bylaws of this corporation, and, except with respect to the
election of directors as provided in Section 6 hereof, shall be
entitled to vote, together with holders of Class A Common Stock,
with respect to any question upon which holders of Class A Common
Stock have the right to vote. Fractional votes shall not,
however, be permitted and any fractional voting rights available
on an as-converted basis (after aggregating all shares into which
shares of Series A Preferred Stock held by each holder could be
converted) shall be rounded to the nearest whole number (with one-
half being rounded upward).
6. Board of Directors. So long as at least 40% of
the authorized shares of Series A Preferred Stock are
outstanding, the holders of Series A Preferred Stock, voting as a
class, shall be entitled to elect five directors and the holders
of Common Stock, voting as a class, shall be entitled to elect
two directors. So long as at least 40% of the authorized shares
of Series A Preferred Stock are outstanding, this corporation
shall not without first obtaining the approval (by vote or
written consent, as provided by law) of the holders of at least a
majority of the then outstanding shares of Series A Preferred
Stock, change the authorized number of directors of the
corporation.
7. Status of Converted or Redeemed Stock. In the
event any shares of Series A Preferred Stock shall be redeemed or
converted pursuant to Section 3 or Section 4 hereof, the shares
so converted or redeemed shall be cancelled and shall not be
issuable by the corporation. The Articles of Incorporation of
this corporation shall be appropriately amended to effect the
corresponding reduction in the corporation's authorized capital
stock.
8. Repurchase of Shares. In connection with
repurchases by this corporation of its Common Stock pursuant to
its agreements with certain of the holders thereof, Sections 502
and 503 of the California General Corporation Law shall not apply
in whole or in part with respect to such repurchases.
IN WITNESS WHEREOF, this Certificate is signed by
Lon E. Bell, Chairman of the Board, and Sandra L. Grouf,
Assistant Secretary, as of this 24 day of May, 1999.
/s/ Lon E. Bell
Lon E. Bell, Chairman of the Board
/s/ Sandra L. Grouf
Sandra L. Grouf, Assistant Secretary
We further declare under penalty of perjury under the
laws of the State of California that the matters set forth in
this Certificate are true and correct of our own knowledge.
/s/ Lon E. Bell
Lon E. Bell, Chairman of the Board
/s/ Sandra L. Grouf
Sandra L. Grouf, Assistant Secretary
INVESTORS' RIGHTS AGREEMENT
June 8, 1999
TABLE OF CONTENTS
Page
1. Registration Rights. 1
1.1 Definitions. 1
1.2 Request for Registration. 2
1.3 Company Registration. 3
1.4 Obligations of the Company. 3
1.5 Furnish Information. 5
1.6 Expenses of Demand Registration. 5
1.7 Expenses of Company Registration. 6
1.8 Underwriting Requirements. 6
1.9 Delay of Registration. 6
1.10 Indemnification. 7
1.11 Reports Under Securities Exchange Act of 1934. 9
1.12 Form S-3 Registration. 9
1.13 Assignment of Registration Rights. 10
1.14 Limitations on Subsequent Registration Rights. 10
1.15 "Market Stand-Off" Agreement. 11
1.16 Termination of Registration Rights. 11
2. Right of First Offer. 11
3. Miscellaneous. 13
3.1 Successors and Assigns. 13
3.2 Governing Law. 13
3.3 Counterparts. 13
3.4 Titles and Subtitles. 13
3.5 Notices. 13
3.6 Expenses. 14
3.7 Amendments and Waivers. 14
3.8 Severability. 14
3.9 Aggregation of Stock. 14
3.10 Entire Agreement; Amendment; Waiver. 14
INVESTORS' RIGHTS AGREEMENT
THIS INVESTORS' RIGHTS AGREEMENT is made as of the
8th day of June, 1999, by and between Amerigon Incorporated,
a California corporation (the "Company"), and the investors
listed on the signature page hereof, each of which is herein
referred to as an "Investor."
RECITALS
WHEREAS, the Company and the Investors are parties to
the Securities Purchase Agreement dated March 29, 1999 (the
"Securities Purchase Agreement") pursuant to which the Investors
are acquiring Series A Preferred Stock of the Company and
warrants to purchase Class A Common Stock of the Company (the
"Warrants");
WHEREAS, in order to induce the Company to enter into
the Securities Purchase Agreement and to induce the Investors to
invest funds in the Company pursuant to the Securities Purchase
Agreement, the Investors and the Company hereby agree that this
Agreement shall govern the rights of the Investors to cause the
Company to register shares of Common Stock issuable to the
Investors and certain other matters as set forth herein;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Registration Rights.
The Company covenants and agrees as follows:
1.1 Definitions.
For purposes of this Section 1:
(a) The term "Act" means the Securities
Act of 1933, as amended.
(b) The term "Common Stock" means the Class A
Common Stock, no par value, of the Company.
(c) The term "Form S-3" means such form under
the Act as in effect on the date hereof or any registration form
under the Act subsequently adopted by the SEC which permits
inclusion or incorporation of substantial information by reference
to other documents filed by the Company with the SEC.
(d) The term "Holder" means any person owning or
having the right to acquire Registrable Securities or any assignee
thereof in accordance with Section 1.13 hereof.
(e) The term "1934 Act" means the Securities
Exchange Act of 1934, as amended.
(f) The term "register", "registered," and
"registration" refer to a registration effected by preparing and
filing a registration statement or similar document in compliance
with the Act, and the declaration or ordering of effectiveness of
such registration statement or document.
(g) The term "Registrable Securities" means (i)
the Common Stock issuable or issued upon conversion of the Series
A Preferred Stock, (ii) the Common Stock issued or issuable upon the
exercise of the Warrants, (iii) any Common Stock of the Company
issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in
replacement of the shares referenced in (i) and (ii) above,
excluding in all cases, however, any Registrable Securities sold
by a person in a transaction in which his rights under this
Section 1 are not assigned.
(h) The number of shares of "Registrable Securities
then outstanding" shall be determined by the number of shares of
Common Stock outstanding which are, and the number of shares of
Common Stock issuable pursuant to then exercisable or convertible
securities which are, Registrable Securities.
(i) The term "SEC" means the Securities and Exchange
Commission.
1.2 Request for Registration.
(a) If the Company shall receive at any time after
the date of this Agreement, a written request from the Holders of a
majority of the Registrable Securities then outstanding that the
Company file a registration statement under the Act covering the
registration of at least ten percent (10%) of the Registrable
Securities then outstanding, then the Company shall:
(i) within ten (10) days of the receipt thereof,
give written notice of such request to all Holders; and
(ii) as soon as practicable, and in any event
within 45 days of the receipt of such request, file a registration
statement under the Act covering all Registrable Securities which
the Holders request to be registered, subject to the limitations of
subsection 1.2(b), within twenty (20) days of the mailing of such
notice by the Company in accordance with Section 3.5.
(b) If the Holders initiating the registration
request hereunder ("Initiating Holders") intend to distribute
the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their
request made pursuant to subsection 1.2(a) and the Company shall
include such information in the written notice referred to in
subsection 1.2(a). The underwriter will be selected by the
Company and shall be reasonably acceptable to a majority in
interest of the Initiating Holders. In such event, the right
of any Holder to include his Registrable Securities in such
registration shall be conditioned upon such Holder's participation
in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise
mutually agreed by a majority in interest of the Initiating
Holders and such Holder) to the extent provided herein. All
Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided
in subsection 1.4(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for
such underwriting. Notwithstanding any other provision of this
Section 1.2, if the underwriter advises the Initiating Holders
in writing that marketing factors require a limitation of the
number of shares to be underwritten, then the Initiating
Holders shall so advise all Holders of Registrable Securities
which would otherwise be underwritten pursuant hereto,
and the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated among all Holders
thereof, including the Initiating Holders, in proportion (as
nearly as practicable) to the amount of Registrable Securities
of the Company owned by each Holder; provided, however, that the
number of shares of Registrable Securities to be included in such
underwriting shall not be reduced unless all other securities are
first entirely excluded from the underwriting.
(c) Notwithstanding the foregoing, if the Company
shall furnish to Holders requesting a registration statement
pursuant to this Section 1.2, a certificate signed by the Chief
Executive Officer of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its shareholders for such
registration statement to be filed and it is therefore essential
to defer the filing of such registration statement, the Company
shall have the right to defer taking action with respect to such
filing for a period of not more than 90 days after receipt of the
request of the Initiating Holders; provided, however, that the
Company may not utilize this right more than once in any twelve-
month period.
(d) The Company shall be obligated to effect only
two such registrations pursuant to this Section 1.2. Registrations
effected on Form S-3 pursuant to Section 1.12, however, shall not
be counted as demands pursuant to this Section 2.
1.3 Company Registration.
At any time within five years after the date of
this Agreement, if (but without any obligation to do so) the
Company proposes to register (including for this purpose a
registration effected by the Company for shareholders other
than the Holders) any of its stock or other securities under
the Act in connection with the public offering of such securities
solely for cash (other than a registration relating solely to the
sale of securities to participants in a Company stock plan, a
registration on any form which does not include substantially the
same information as would be required to be included in a
registration statement covering the sale of the Registrable
Securities or a registration in which the only Common Stock being
registered is Common Stock issuable upon conversion of debt
securities which are also being registered), the Company shall,
at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given
within twenty (20) days after mailing of such notice by the
Company in accordance with Section 3.5, the Company shall,
subject to the provisions of Section 1.8, cause to be
registered under the Act all of the Registrable Securities
that each such Holder has requested to be registered.
1.4 Obligations of the Company.
Whenever required under this Section 1 to effect
the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become
effective, and, upon the request of the Holders of a majority of
the Registrable Securities registered thereunder, keep such
registration statement effective for a period of up to one
hundred twenty (120) days or until the distribution contemplated
in the Registration Statement has been completed; provided, however,
that (i) such 120-day period shall be extended for a period of
time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an
underwriter of Common Stock (or other securities) of the Company;
and (ii) in the case of any registration of Registrable
Securities on Form S-3 which are intended to be offered on a
continuous or delayed basis, such 120-day period shall be
extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold,
provided that Rule 415, or any successor rule under the Act,
permits an offering on a continuous or delayed basis, and
provided further that applicable rules under the Act
governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment which
(I) includes any prospectus required by Section 10(a)(3)
of the Act or (II) reflects facts or events representing a
material or fundamental change in the information set forth
in the registration statement, the incorporation by reference
of information required to be included in (I) and (II) above
to be contained in periodic reports filed pursuant to Section
13 or 15(d) of the 1934 Act in the registration statement.
(b) Prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus
used in connection with such registration statement as may be
necessary to comply with the provisions of the Act with respect
to the disposition of all securities covered by such registration
statement.
(c) Furnish to the Holders such numbers of copies of
a prospectus, including a preliminary prospectus, in conformity
with the requirements of the Act, and such other documents as
they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as shall be
reasonably requested by the Holders; provided that the Company
shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, unless
the Company is already subject to service in such jurisdiction
and except as may be required by the Act.
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing
underwriter of such offering. Each Holder participating in
such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities
covered by such registration statement at any time when a
prospectus relating thereto is required to be delivered under
the Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances then existing.
(g) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on
which similar securities issued by the Company are then listed.
(h) Use its best efforts to furnish, at the request of
any Holder requesting registration of Registrable Securities
pursuant to this Section 1, on the date that such Registrable
Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Section 1, if such securities
are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the
registration statement with respect to such securities becomes
effective, (i) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration,
in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable
Securities and (ii) a letter dated such date, from the
independent certified public accountants of the Company, in form
and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the
Holders requesting registration of Registrable Securities.
1.5 Furnish Information.
It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that
such Holder shall furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the
intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable
Securities.
1.6 Expenses of Demand Registration.
All expenses other than underwriting discounts
and commissions incurred in connection with registrations, filings
or qualifications pursuant to Section 1.2, including (without
limitation) all registration, filing and qualification fees,
printers' and accounting fees, fees and disbursements of counsel
for the Company, and the reasonable fees and disbursements (not
to exceed $15,000) of one counsel for the selling Holders (as
selected by the Holders of a majority of the Registrable
Securities to be registered) shall be borne by the Company;
provided, however, that the Company shall not be required to pay
for any expenses of any registration proceeding begun pursuant to
Section 1.2 if the registration request is subsequently withdrawn
at the request of the Holders of a majority of the Registrable
Securities to be registered (in which case all participating
Holders shall bear such expenses), unless the Holders of a
majority of the Registrable Securities agree to forfeit their
right to one demand registration pursuant to Section 1.2;
provided further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change
in the condition, business, or prospects of the Company from that
known to the Holders at the time of their request and have
withdrawn the request with reasonable promptness following
disclosure by the Company of such material adverse change, then
the Holders shall not be required to pay any of such expenses and
shall retain their rights pursuant to Section 1.2.
1.7 Expenses of Company Registration.
The Company shall bear and pay all expenses incurred
in connection with any registration, filing or qualification of
Registrable Securities with respect to the registrations pursuant
to Section 1.3 for each Holder (which right may be assigned as
provided in Section 1.13), including (without limitation) all
registration, filing, and qualification fees, printers and
accounting fees relating or apportionable thereto and the fees
and disbursements (not to exceed $15,000) of one counsel for the
selling Holders (as selected by the Holders of a majority of the
Registrable Securities to be registered), but excluding
underwriting discounts and commissions relating to Registrable
Securities.
1.8 Underwriting Requirements.
In connection with any offering involving an
underwriting of shares of the Company's capital stock, the
Company shall not be required under Section 1.3 to include any of
the Holders' securities in such underwriting unless they accept
the terms of the underwriting as agreed upon between the Company
and the underwriters selected by it (or by other persons entitled
to select the underwriters), and then only in such quantity as
the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the
total amount of securities, including Registrable Securities,
requested by shareholders to be included in such offering exceeds
the amount of securities sold other than by the Company that the
underwriters determine in their sole discretion is compatible
with the success of the offering, then the Company shall be
required to include in the offering only that number of such
securities, including Registrable Securities, which the
underwriters determine in their sole discretion will not
jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling
shareholders according to the total amount of securities entitled
to be included therein owned by each selling shareholder or in
such other proportions as shall mutually be agreed to by such
selling shareholders) but in no event shall (i) the amount of
securities of the selling Holders included in the offering be
reduced below twenty percent (20%) of the total amount of
securities included in such offering, or (ii) notwithstanding (i)
above, any shares being sold by a shareholder exercising a demand
registration right similar to that granted in Section 1.2 be
excluded from such offering. For purposes of the preceding
parenthetical concerning apportionment, for any selling
shareholder which is a holder of Registrable Securities and which
is a partnership or corporation, the partners, retired partners
and shareholders of such holder, or the estates and family
members of any such partners and retired partners and any trusts
for the benefit of any of the foregoing persons shall be deemed
to be a single "selling shareholder", and any pro-rata reduction
with respect to such "selling shareholder" shall be based upon
the aggregate amount of shares carrying registration rights owned
by all entities and individuals included in such "selling
shareholder", as defined in this sentence.
1.9 Delay of Registration.
No Holder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration
as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.10 Indemnification.
In the event any Registrable Securities are included
in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company
will indemnify and hold harmless each Holder, any underwriter
(as defined in the Act) for such Holder and each person, if any,
who controls such Holder or underwriter within the meaning of the
Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject
under the Act, the 1934 Act or other federal or state securities law,
insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact
contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments
or supplements thereto, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary
to make the statements therein not misleading, or (iii) any violation
or alleged violation by the Company of the Act, the 1934 Act, any
rule or regulation promulgated under the Act or the 1934 Act, or
any other federal or state securities law; and the Company will pay
to each such Holder, underwriter or controlling person any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability,
or action; provided, however, that the indemnity agreement
contained in this subsection 1.10(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case for any such loss,
claim, damage, liability, or action to the extent that it arises
out of or is based upon a Violation which occurs in reliance
upon and in conformity with written information furnished expressly
for use in connection with such registration by any such Holder,
underwriter or controlling person.
(b) To the extent permitted by law, each selling
Holder will indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the registration
statement, each person, if any, who controls the Company within
the meaning of the Act, any underwriter, any other Holder selling
securities in such registration statement and any controlling person
of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Act, the 1934 Act
or other federal or state securities law, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information
furnished by such Holder expressly for use in connection with
such registration; and each such Holder will pay any legal or
other expenses reasonably incurred by any person intended to be
indemnified pursuant to this subsection 1.10(b), in connection
with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity
agreement contained in this subsection 1.10(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the
consent of the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under
this subsection 1.10(b) exceed the gross proceeds from the
offering received by such Holder.
(c) Promptly after receipt by an indemnified party
under this Section 1.10 of notice of the commencement of any action
(including any governmental action), such indemnified party will,
if a claim in respect thereof is to be made against any
indemnifying party under this Section 1.10, deliver to the
indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate
in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party (together
with all other indemnified parties which may be represented
without conflict by one counsel) shall have the right to retain
one separate counsel, with the fees and expenses to be paid by
the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests
between such indemnified party and any other party represented by
such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 1.10, but
the omission so to deliver written notice to the indemnifying
party will not relieve it of any liability that it may have to
any indemnified party otherwise than under this Section 1.10.
(d) If the indemnification provided for in this
Section 1.10 is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss,
liability, claim, damage, or expense referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with
the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other
relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied
by the indemnifying party or by the indemnified party and the
parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the
underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall
control.
(f) The obligations of the Company and Holders
under this Section 1.10 shall survive the completion of any
offering of Registrable Securities in a registration statement
under this Section 1, and otherwise.
1.11 Reports Under Securities Exchange Act of 1934.
With a view to making available to the Holders the
benefits of Rule 144 promulgated under the Act and any other rule
or regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration
or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available,
as those terms are understood and defined in SEC Rule 144, at all
times;
(b) file with the SEC in a timely manner all
reports and other documents required of the Company under the Act
and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder
owns any Registrable Securities, forthwith upon request (i) a
written statement by the Company that it has complied with the
reporting requirements of SEC Rule 144 (at any time after ninety
(90) days after the effective date of the first registration
statement filed by the Company), the Act and the 1934 Act (at
any time after it has become subject to such reporting requirements),
or that it qualifies as a registrant whose securities may be resold
pursuant to Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company
and such other reports and documents so filed by the Company, and
(iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which
permits the selling of any such securities without registration
or pursuant to such form.
1.12 Form S-3 Registration.
In case the Company shall receive from any Holder or
Holders a written request or requests that the Company effect a
registration on Form S-3 for the resale of shares from time to
time in broker transactions (and not in connection with an
underwritten offering), and any related qualification or
compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all
other Holders; and
(b) as soon as practicable, effect such
registration and all such qualifications and compliances as may
be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Holder's or Holders'
Registrable Securities as are specified in such request, together
with all or such portion of the Registrable Securities of any
other Holder or Holders joining in such request as are specified
in a written request given within 15 days after receipt of such
written notice from the Company; provided, however, that the
Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this section 1.12: (1)
if Form S-3 is not available for such offering by the Holders; (2)
if the Holders, together with the holders of any other securities
of the Company entitled to inclusion in such registration, propose
to sell Registrable Securities and such other securities (if any)
at an aggregate price to the public (net of any underwriters'
discounts or commissions) of less than $300,000; (3) if the
Company shall furnish to the Holders a certificate signed by the
President of the Company stating that in the good faith judgment of
the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such Form S-3
Registration to be effected at such time, in which event the
Company shall have the right to defer the filing of the Form S-3
registration statement for a period of not more than 90 days after
receipt of the request of the Holder or Holders under this Section
1.12; provided, however, that the Company shall not utilize this
right more than once in any twelve month period; (4) if the Company
has, within the twelve (12) month period preceding the date of
such request, already effected two registrations on Form S-3 for
the Holders pursuant to this Section 1.12; (5) the Company has
previously effected four registrations on Form S-3 for the
Holders pursuant to this Section 1.12, or (6) in any particular
jurisdiction in which the Company would be required to qualify to
do business or to execute a general consent to service of process
in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file
a registration statement covering the Registrable Securities and
other securities so requested to be registered as soon as
practicable after receipt of the request or requests of the
Holders. All expenses incurred in connection with a registration
requested pursuant to Section 1.12, including (without
limitation) all registration, filing, qualification, printer's
and accounting fees, and the fees and disbursements (not to exceed
$15,000) of one counsel for the selling Holder (as selected by the
Holders of a majority of the Registrable Securities to be registered)
and counsel for the Company, shall be borne by the Company.
Registrations effected pursuant to this Section 1.12 shall not be
counted as demands for registration or registrations effected
pursuant to Sections 1.2 or 1.3, respectively.
1.13 Assignment of Registration Rights.
The rights to cause the Company to register Registrable
Securities pursuant to this Section 1 may be assigned (but only with
all related obligations) by a Holder to a transferee or assignee of
such securities, provided: (a) the Company is, within a reasonable
time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with
respect to which such registration rights are being assigned; (b)
such transferee or assignee agrees in writing to be bound by and
subject to the terms and conditions of this Agreement, including
without limitation the provisions of Section 1.15 below; and (c)
such assignment shall be effective only if immediately following
such transfer the further disposition of such securities by the
transferee or assignee is restricted under the Act.
1.14 Limitations on Subsequent Registration Rights.
From and after the date of this Agreement, the
Company shall not, without the prior written consent of the
Holders of a majority of the outstanding Registrable Securities,
enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow such holder or
prospective holder (a) to include such securities in any
registration filed under Section 1.2 hereof, unless under the
terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the
extent that the inclusion of his securities will not reduce the
amount of the Registrable Securities of the Holders which is
included or (b) to make a demand registration which could result
in such registration statement being declared effective prior to
the earlier of either of the dates set forth in subsection 1.2(a)
or within one hundred twenty (120) days of the effective date of
any registration effected pursuant to Section 1.2.
1.15 "Market Stand-Off" Agreement.
Each Holder hereby agrees that, during the period
of duration specified by the Company and an underwriter of common
stock or other securities of the Company, following the effective
date of a registration statement of the Company filed under the
Act in connection with an underwritten offering, it shall not, to
the extent requested by the Company and such underwriter,
directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option
to purchase or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) any securities of the
Company held by it at any time during such period except common
stock included in such registration; provided, however, that:
(a) all officers and directors of the Company and
all other persons with registration rights (whether or not pursuant
to this Agreement) enter into similar agreements; and
(b) such market stand-off time period shall not
exceed 90 days.
In order to enforce the foregoing covenant, the Company
may impose stop-transfer instructions with respect to the
Registrable Securities of each Investor (and the shares or
securities of every other person subject to the foregoing
restriction) until the end of such period.
Notwithstanding the foregoing, the obligations
described in this Section 1.15 shall not apply to a registration
relating solely to employee benefit plans on Form S-l or Form S-8
or similar forms which may be promulgated in the future, or a
registration relating solely to a Commission Rule 145 transaction
on Form S-14 or Form S-15 or similar forms which may be
promulgated in the future.
1.16 Termination of Registration Rights.
The right of any Holder to request registration or
inclusion in any registration pursuant to this Agreement shall
terminate if all shares of Registrable Securities held or
entitled to be held upon conversion by such Holder may
immediately be sold under Rule 144 during any 90-day period.
2. Right of First Offer.
Subject to the terms and conditions specified in this
Section 2, the Company hereby grants to each Major Investor (as
hereinafter defined) a right of first offer with respect to
future sales by the Company of its Shares (as hereinafter
defined). For purposes of this Section 2, a Major Investor shall
mean (i) any Investor who holds at least 30% of the original
investment such Investor makes in the Company pursuant to the
Securities Purchase Agreement and (ii) any person who acquires at
least 15% of the Series A Preferred Stock (or the common stock
issued upon conversion thereof) issued pursuant to the Securities
Purchase Agreement. For purposes of this Section 2, Investor
includes any general partners and affiliates of an Investor. An
Investor shall be entitled to apportion the right of first offer
hereby granted it among itself and its partners and affiliates in
such proportions as it deems appropriate.
Each time the Company proposes to offer any shares of,
or securities convertible into or exercisable for any shares of,
any class of its capital stock ("Shares"), the Company shall
first make an offering of such Shares to each Major Investor in
accordance with the following provisions:
(a) The Company shall deliver a notice by
certified mail ("Notice") to the Major Investors stating (i) its
bona fide intention to offer such Shares, (ii) the number of
such Shares to be offered, and (iii) the price and terms, if
any, upon which it proposes to offer such Shares.
(b) By written notification received by the
Company, within 20 calendar days after giving of the Notice,
the Major Investor may elect to purchase or obtain, at the price
and on the terms specified in the Notice, up to that portion of
such Shares which equals the proportion that the number of shares
of common stock issued and held, or issuable upon conversion of
the Series A Preferred Stock then held, by such Major Investor
bears to the total number of shares of common stock of the Company
then outstanding (assuming full conversion and exercise of all
convertible or exercisable securities). The Company shall
promptly, in writing, inform each Major Investor which purchases
all the shares available to it ("Fully-Exercising Investor") of
any other Major Investor's failure to do likewise. During the
ten-day period commencing after such information is given, each
Fully-Exercising Investor shall be entitled to obtain that
portion of the Shares for which Major Investors were entitled to
subscribe but which were not subscribed for by the Major
Investors which is equal to the proportion that the number of
shares of common stock issued and held, or issuable upon
conversion of Series A Preferred Stock then held, by such
Fully-Exercising Investor bears to the total number of shares of
common stock issued and held, or issuable upon conversion of the
Series A Preferred Stock then held, by all Fully-Exercising
Investors who wish to purchase some of the unsubscribed shares.
(c) If all Shares which Investors are entitled
to obtain pursuant to (b) are not elected to be obtained as
provided in (b) hereof, the Company may, during the 30-day
period following the expiration of the period provided in (b)
hereof, offer the remaining unsubscribed portion of such Shares
to any person or persons at a price not less than, and upon
terms no more favorable to the offeree than those specified in
the Notice. If the Company does not enter into an agreement
for the sale of the Shares within such period, or if such
agreement is not consummated within 30 days of the execution
thereof, the right provided hereunder shall be deemed to be
revived and such Shares shall not be offered unless first
reoffered to the Major Investors in accordance herewith.
(d) The right of first offer in this Section
2 shall not be applicable (i) to the issuance or sale of
shares of common stock (or options therefor) to employees for
the primary purpose of soliciting or retaining their employment
pursuant to a stock option or stock purchase plan, (ii) the
issuance of securities pursuant to the conversion or exercise
of convertible or exercisable securities, (iii) the issuance
of securities in connection with a bona fide business acquisition
of or by the Company, whether by merger, consolidation, sale of
assets, sale or exchange of stock or otherwise or (iv) the
issuance of stock, warrants or other securities or rights to
persons or entities with which the Company has business
relationships provided such issuances are for other than
primarily equity financing purposes and provided that at the
time of any such issuance, the aggregate of such issuance and
similar issuances in the preceding twelve month period do not
exceed 2% of the then outstanding Common Stock of the Company
(assuming full conversion and exercise of all convertible and
exercisable securities).
(e) The right of first refusal set forth in
this Section 2 may not be assigned or transferred, except that
(i) such right is assignable by each Holder to any wholly owned
subsidiary or parent of, or to any corporation or entity that is,
within the meaning of the Act, controlling, controlled by or
under common control with, any such Holder, and (ii) such right
is assignable between and among any of the Holders.
3. Miscellaneous.
3.1 Successors and Assigns.
Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties
(including transferees of any shares of Registrable Securities).
Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.2 Governing Law.
This Agreement shall be governed by and construed
under the laws of the State of California as applied to
agreements among California residents entered into and to be
performed entirely within California.
3.3 Counterparts.
This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
3.4 Titles and Subtitles.
The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.5 Notices.
Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and
shall be deemed effectively given upon personal delivery to the
party to be notified or upon deposit with the United States Post
Office, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated
for such party on the signature page hereof, or at such other
address as such party may designate by ten (10) days' advance
written notice to the other parties.
3.6 Expenses.
If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which
such party may be entitled.
3.7 Amendments and Waivers.
Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and
the holders of a majority of the Registrable Securities then
outstanding. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon each holder of any
Registrable Securities then outstanding, each future holder of
all such Registrable Securities, and the Company.
3.8 Severability.
If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement
shall be interpreted as if such provision were so excluded and
shall be enforceable in accordance with its terms.
3.9 Aggregation of Stock.
All shares of Registrable Securities held or acquired
by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights
under this Agreement.
3.10 Entire Agreement; Amendment; Waiver.
This Agreement (including the exhibits hereto, if
any) constitutes the full and entire understanding and agreement
between the parties with regard to the subjects hereof and
thereof.
IN WITNESS WHEREOF, the parties have executed this
Investors' Rights Agreement as of the date first above written.
AMERIGON INCORPORATED,
a California corporation
By: /s/ Lon E. Bell
Its: Chief Executive Officer
Address:
5462 Irwindale Avenue
Irwindale, CA 91706
INVESTORS:
By: Westar Capital Associates II, LLC
Manager
By: /s/ Alan B. Sellers
Alan B. Sellers, Member
Address:
949 South Coast Drive,
Suite 650
Costa Mesa, California 92626
BIG BEAVER INVESTMENTS LLC
By: /s/ O.B. Marx III
Its: President
Address:
801 W. Big Beaver Road,
Suite 201
Troy, Michigan 48084
CONTINGENT COMMON STOCK PURCHASE WARRANT
THIS SECURITY AND ANY SHARES ISSUED UPON EXERCISE OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE
APPLICABLE SECURITY HAS BEEN REGISTERED UNDER THE ACT AND SUCH
LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED AND (2)
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS FURNISHED TO
THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
AMERIGON INCORPORATED
WARRANT TO PURCHASE COMMON STOCK
This certifies that, for value received, Westar Capital
II LLC (the "Holder") is entitled to subscribe for and purchase
up to 523,530 shares (subject to adjustment from time to time
pursuant to the provisions of Section 5 hereof) of fully paid and
nonassessable Class A Common Stock of Amerigon Incorporated, a
California corporation (the "Company"), at the price specified in
Section 2 hereof, as such price may be adjusted from time to time
pursuant to Section 5 hereof (the "Warrant Price"), subject to
the provisions and upon the terms and conditions hereinafter set
forth.
As used herein, the term "Class A Common Stock" shall
mean the Company's presently authorized Class A Common Stock, no
par value, and any stock into or for which such Common Stock may
hereafter be converted or exchanged.
1. Term of Warrant; Contingent Exercise.
(a) Term. Subject to Section 1(b) hereof, the purchase
right represented by this Warrant is exercisable, in whole or in
part, at any time during a period beginning on June 7, 1999 and
ending ninety days after the Warrant Expiration Date as such
term is defined in the Warrant Agreement dated February
12, 1997, by and among the Company, U.S. Stock Transfer
Corporation, as Warrant Agent, and D.H. Blair Investment Banking
Corp. (the "1997 Warrant Agreement").
(b) Contingent Exercise. The number of shares that
may be purchased pursuant to the exercise of this Warrant is
limited to a number of shares equal to 36.9% multiplied by the
number of shares purchased pursuant to the exercise of Class A
Warrants of the Company after the date hereof. To the extent
that this would result in the right to purchase a fractional
number of shares, the number of shares permitted to be purchased
will be rounded down to the lowest whole share; provided,
however, that the number of shares with respect to which this
Warrant shall not then have been exercised will appropriately
reflect such adjustment.
2. Warrant Price.
The Warrant Price is $25.00 per share, subject to
adjustment from time to time pursuant to the provisions of
Section 5 hereof.
3. Method of Exercise or Conversion; Payment; Issuance
of New Warrant.
(a) Exercise. Subject to Section 1 hereof, the
purchase right represented by this Warrant may be exercised by
the Holder, in whole or in part, by the surrender of this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company and by the
payment to the Company, by cashier's check or wire transfer, of
an amount equal to the then applicable Warrant Price per share
multiplied by the number of shares then being purchased. The
Company agrees that the shares so purchased shall be deemed to be
issued to the Holder as the record owner of such shares as of the
close of business on the date on which this Warrant shall have
been surrendered and payment made for such shares as aforesaid.
In the event of any exercise of this Warrant, certificates for
the shares of stock so purchased shall be delivered to the Holder
within 15 business days thereafter and, unless this Warrant has
been fully exercised or expired, a new Warrant representing the
portion of the shares, if any, with respect to which this Warrant
shall not then have been exercised, shall also be issued to the
Holder within such 15 business day period.
(b) Conversion. Subject to Section 1 hereof, the
Holder may convert this Warrant (the "Conversion Right"), in
whole or in part, into the number of shares (less the number of
shares which have been previously exercised or as to which the
Conversion Right has been previously exercised) calculated
pursuant to the following formula by surrendering this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company specifying
the number of shares the rights to purchase which the Holder
desires to convert:
Y (A - B)
---------
X = A
where: X = the number of shares of Class A
Common Stock to be issued to the
Holder;
Y = the number of shares of Class A
Common Stock subject to this Warrant for
which the Conversion Right is being
exercised;
A = the Market Price of the Common
Stock (as defined below) as of the trading
day immediately preceding the date of
exercise of this Warrant; and
B = the Warrant Price
For purposes hereof, the "Market Price of the Common
Stock" shall be the closing price per share of the
Class A Common Stock of the Company on the principal
national securities exchange on which the Class A
Common Stock of the Company is then listed or admitted
to trading or, if not then listed or traded on any such
exchange, on the NASDAQ National Market System, or if
then not listed or traded on such system, the closing
bid price per share on NASDAQ or other over-the-counter
trading market. If at any time such quotations are not
available, the market price of a share of Class A
Common Stock shall be the highest price per share which
the Company could obtain from a willing buyer (not a
current employee or director) for shares of Class A
Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by the
Board of Directors of the Company, unless the Company
shall become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the
surviving party, in which case the market price of a
share of Class A Common Stock shall be deemed to be the
value received by the holders of the Company's Class A
Common Stock for each share of Class A Common Stock
pursuant to the Company's acquisition.
The Company agrees that the shares so converted shall
be deemed issued to the Holder as the record owner of
such shares as of the close of business on the date on
which this Warrant shall have been surrendered as
aforesaid. In the event of any conversion of this
Warrant, certificates for the shares of stock so
converted shall be delivered to the holder hereof
within 15 business days thereafter and, unless this
Warrant has been fully converted or expired, a new
Warrant representing the portion of the shares, if any,
with respect to which this Warrant shall not then have
been converted, shall also be issued to the holder
hereof within such 15-day period.
4. Stock Fully Paid; Reservation of Shares.
All Class A Common Stock which may be issued upon the
exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable, and free from all
United States taxes, liens and charges with respect to the issue
thereof. During the period within which the rights represented
by this Warrant may be exercised, the Company will at all times
have authorized, and reserved for the purpose of the issuance
upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Class A Common Stock to
provide for the exercise of the rights represented by this
Warrant.
5. Adjustment of Purchase Price and Number of Shares.
The exercise price and number of shares purchasable
on exercise of this Warrant shall adjust identically with any
adjustments made pursuant to the 1997 Warrant Agreement and the
provisions of Section 9 of the 1997 Warrant Agreement and the
definitions of the different terms therein are hereby incorporated
by reference.
6. Notice of Adjustments.
Whenever any Warrant Price shall be adjusted pursuant
to Section 5 hereof, the Company shall prepare a certificate
signed by its chief financial officer setting forth, in
reasonable detail, the event requiring the adjustment, the
amount of the adjustment, the method by which such adjustment
was calculated, the Warrant Price after giving effect to such
adjustment and the number of shares then purchasable upon
exercise of this Warrant, and shall cause copies of such
certificate to be mailed (by first class mail, postage prepaid)
to the Holder of this Warrant at the address specified in Section
10(c) hereof, or at such other address as may be provided to the
Company in writing by the Holder of this Warrant.
7. Fractional Shares.
No fractional shares of Class A Common Stock will be
issued in conjunction with any exercise hereunder, but in lieu
of such fractional shares the Company shall make a cash payment
therefore on the basis of the Warrant Price then in effect.
8. Compliance with Securities Act; Legends.
The Holder of this Warrant, by acceptance hereof,
agrees that this Warrant and the shares of Class A Common Stock
to be issued on exercise hereof are being acquired for investment
and that it will not offer, sell or otherwise dispose of this
Warrant or any shares of Class A Common Stock to be issued upon
exercise hereof except under circumstances which will not result
in a violation of the Securities Act of 1933, as amended (the
"Act"). This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER
THE ACT AND SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS
NOT REQUIRED AND (2) AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY IS FURNISHED TO THE COMPANY TO THE EFFECT THAT
REGISTRATION UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED."
This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE,
ENCUMBRANCE OR OTHER DISPOSITION (EACH, A "TRANSFER") AND
VOTING OF ANY OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE RESTRICTED BY THE TERMS OF A SHAREHOLDERS'
AGREEMENT AMONG CERTAIN SHAREHOLDERS NAMED THEREIN."
9. Notice of Exercise of Class A Warrants.
Whenever any Class A Warrant shall be exercised, within
30 days after such exercise the Company shall notify the Holder
(by first class mail, postage prepaid) at the address specified
in Section 10(c) hereof, or at such other address as may be
provided to the Company in writing by the Holder of this Warrant.
10. Miscellaneous.
(a) No Rights as Shareholder. The Holder of this
Warrant shall not be entitled to vote or receive dividends or be
deemed the Holder of Class A Common Stock or any other securities
of the Company that may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any
of the rights of a shareholder of the Company or any right to
vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock,
change of par value or change of stock to no par value,
consolidation, merger, conveyance or otherwise) or to receive
notice of meetings, or to receive dividends or subscription
rights or otherwise until the Warrant shall have been exercised
and the shares purchasable upon the exercise hereof shall have
become deliverable, as provided herein.
(b) Replacement. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant and, in the case of mutilation, on
surrender and cancellation of this Warrant, the Company, at the
Holder's expense, will execute and deliver, in lieu of this
Warrant, a new Warrant of like tenor.
(c) Notice. Any notice given to either party under
this Warrant shall be in writing, and any notice hereunder shall
be deemed to have been given upon the earlier of delivery
thereof by hand delivery, by courier, or by standard form of
telecommunication or three (3) business days after the mailing
thereof in the U.S. mail if sent registered mail with postage
prepaid, addressed to the Company at its principal executive
offices and to the Holder at its address set forth in the
Company's books and records or at such other address as the
Holder may have provided to the Company in writing.
(d) Governing Law. This Warrant shall be governed
and construed under the laws of the State of California.
[Remainder of page intentionally left blank]
This Warrant is executed as of this 8 day of June, 1999.
AMERIGON INCORPORATED
By: /s/ Lon E. Bell
Name: Lon E. Bell
-----------------------------
Title: Chief Executive Officer
EXHIBIT 1
NOTICE OF EXERCISE
TO: AMERIGON INCORPORATED
1. Check Box that Applies:
The undersigned hereby elects to purchase __________
shares of Class A Common Stock of AMERIGON INCORPORATED
pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price of such
shares in full.
The undersigned hereby elects to convert the attached
warrant into ________ shares of Class A Common Stock of
AMERIGON INCORPORATED pursuant to the terms of the
attached Warrant.
2. Please issue a certificate or certificates
representing said shares of Class A Common Stock in the name of
the undersigned or in such other name as is specified below:
------------------------------
(Name)
------------------------------
------------------------------
(Address)
3. The undersigned represents that the aforesaid
shares of Class A Common Stock are being acquired for the account
of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling
such shares.
---------------------------
Signature
CONTINGENT COMMON STOCK PURCHASE WARRANT
THIS SECURITY AND ANY SHARES ISSUED UPON EXERCISE OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE
APPLICABLE SECURITY HAS BEEN REGISTERED UNDER THE ACT AND SUCH
LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED AND (2)
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS FURNISHED TO
THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
AMERIGON INCORPORATED
WARRANT TO PURCHASE COMMON STOCK
This certifies that, for value received, Big Beaver
Investments LLC (the "Holder") is entitled to subscribe for and
purchase up to 523,530 shares (subject to adjustment from time to
time pursuant to the provisions of Section 5 hereof) of fully
paid and nonassessable Class A Common Stock of Amerigon
Incorporated, a California corporation (the "Company"), at the
price specified in Section 2 hereof, as such price may be
adjusted from time to time pursuant to Section 5 hereof (the
"Warrant Price"), subject to the provisions and upon the terms
and conditions hereinafter set forth.
As used herein, the term "Class A Common Stock" shall
mean the Company's presently authorized Class A Common Stock, no
par value, and any stock into or for which such Common Stock may
hereafter be converted or exchanged.
1. Term of Warrant; Contingent Exercise.
(a) Term. Subject to Section 1(b) hereof, the
purchase right represented by this Warrant is exercisable, in
whole or in part, at any time during a period beginning on June
7, 1999 and ending ninety days after the Warrant Expiration Date
as such term is defined in the Warrant Agreement dated February
12, 1997, by and among the Company, U.S. Stock Transfer
Corporation, as Warrant Agent, and D.H. Blair Investment Banking
Corp. (the "1997 Warrant Agreement").
(b) Contingent Exercise. The number of shares that
may be purchased pursuant to the exercise of this Warrant is
limited to a number of shares equal to 36.9% multiplied by the
number of shares purchased pursuant to the exercise of Class A
Warrants of the Company after the date hereof. To the extent
that this would result in the right to purchase a fractional
number of shares, the number of shares permitted to be purchased
will be rounded down to the lowest whole share; provided,
however, that the number of shares with respect to which this
Warrant shall not then have been exercised will appropriately
reflect such adjustment.
2. Warrant Price.
The Warrant Price is $25.00 per share, subject to
adjustment from time to time pursuant to the provisions of
Section 5 hereof.
3. Method of Exercise or Conversion; Payment; Issuance
of New Warrant.
(a) Exercise. Subject to Section 1 hereof, the
purchase right represented by this Warrant may be exercised by
the Holder, in whole or in part, by the surrender of this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company and by the
payment to the Company, by cashier's check or wire transfer, of
an amount equal to the then applicable Warrant Price per share
multiplied by the number of shares then being purchased. The
Company agrees that the shares so purchased shall be deemed to be
issued to the Holder as the record owner of such shares as of the
close of business on the date on which this Warrant shall have
been surrendered and payment made for such shares as aforesaid.
In the event of any exercise of this Warrant, certificates for
the shares of stock so purchased shall be delivered to the Holder
within 15 business days thereafter and, unless this Warrant has
been fully exercised or expired, a new Warrant representing the
portion of the shares, if any, with respect to which this Warrant
shall not then have been exercised, shall also be issued to the
Holder within such 15 business day period.
(b) Conversion. Subject to Section 1 hereof, the
Holder may convert this Warrant (the "Conversion Right"), in
whole or in part, into the number of shares (less the number of
shares which have been previously exercised or as to which the
Conversion Right has been previously exercised) calculated
pursuant to the following formula by surrendering this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company specifying
the number of shares the rights to purchase which the Holder
desires to convert:
Y (A - B)
---------
X = A
where: X = the number of shares of Class A
Common Stock to be issued to the
Holder;
Y = the number of shares of Class A
Common Stock subject to this Warrant for
which the Conversion Right is being
exercised;
A = the Market Price of the Common
Stock (as defined below) as of the trading
day immediately preceding the date of
exercise of this Warrant; and
B = the Warrant Price
For purposes hereof, the "Market Price of the Common
Stock" shall be the closing price per share of the
Class A Common Stock of the Company on the principal
national securities exchange on which the Class A
Common Stock of the Company is then listed or admitted
to trading or, if not then listed or traded on any such
exchange, on the NASDAQ National Market System, or if
then not listed or traded on such system, the closing
bid price per share on NASDAQ or other over-the-counter
trading market. If at any time such quotations are not
available, the market price of a share of Class A
Common Stock shall be the highest price per share which
the Company could obtain from a willing buyer (not a
current employee or director) for shares of Class A
Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by the
Board of Directors of the Company, unless the Company
shall become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the
surviving party, in which case the market price of a
share of Class A Common Stock shall be deemed to be the
value received by the holders of the Company's Class A
Common Stock for each share of Class A Common Stock
pursuant to the Company's acquisition.
The Company agrees that the shares so converted shall
be deemed issued to the Holder as the record owner of
such shares as of the close of business on the date on
which this Warrant shall have been surrendered as
aforesaid. In the event of any conversion of this
Warrant, certificates for the shares of stock so
converted shall be delivered to the holder hereof
within 15 business days thereafter and, unless this
Warrant has been fully converted or expired, a new
Warrant representing the portion of the shares, if any,
with respect to which this Warrant shall not then have
been converted, shall also be issued to the holder
hereof within such 15-day period.
4. Stock Fully Paid; Reservation of Shares.
All Class A Common Stock which may be issued upon the
exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable, and free from all
United States taxes, liens and charges with respect to the issue
thereof. During the period within which the rights represented
by this Warrant may be exercised, the Company will at all times
have authorized, and reserved for the purpose of the issuance
upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Class A Common Stock to
provide for the exercise of the rights represented by this
Warrant.
5. Adjustment of Purchase Price and Number of Shares.
The exercise price and number of shares purchasable on
exercise of this Warrant shall adjust identically with any
adjustments made pursuant to the 1997 Warrant Agreement and the
provisions of Section 9 of the 1997 Warrant Agreement and the
definitions of the different terms therein are hereby incorporated
by reference.
6. Notice of Adjustments.
Whenever any Warrant Price shall be adjusted pursuant
to Section 5 hereof, the Company shall prepare a certificate
signed by its chief financial officer setting forth, in
reasonable detail, the event requiring the adjustment, the
amount of the adjustment, the method by which such adjustment
was calculated, the Warrant Price after giving effect to such
adjustment and the number of shares then purchasable upon
exercise of this Warrant, and shall cause copies of such
certificate to be mailed (by first class mail, postage prepaid)
to the Holder of this Warrant at the address specified in Section
10(c) hereof, or at such other address as may be provided to the
Company in writing by the Holder of this Warrant.
7. Fractional Shares.
No fractional shares of Class A Common Stock will be
issued in conjunction with any exercise hereunder, but in lieu of
such fractional shares the Company shall make a cash payment
therefore on the basis of the Warrant Price then in effect.
8. Compliance with Securities Act; Legends.
The Holder of this Warrant, by acceptance hereof,
agrees that this Warrant and the shares of Class A Common Stock
to be issued on exercise hereof are being acquired for investment
and that it will not offer, sell or otherwise dispose of this
Warrant or any shares of Class A Common Stock to be issued upon
exercise hereof except under circumstances which will not result
in a violation of the Securities Act of 1933, as amended (the
"Act"). This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER
THE ACT AND SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS
NOT REQUIRED AND (2) AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY IS FURNISHED TO THE COMPANY TO THE EFFECT THAT
REGISTRATION UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED."
This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE,
ENCUMBRANCE OR OTHER DISPOSITION (EACH, A "TRANSFER") AND
VOTING OF ANY OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE RESTRICTED BY THE TERMS OF A SHAREHOLDERS'
AGREEMENT AMONG CERTAIN SHAREHOLDERS NAMED THEREIN."
9. Notice of Exercise of Class A Warrants.
Whenever any Class A Warrant shall be exercised, within
30 days after such exercise the Company shall notify the Holder
(by first class mail, postage prepaid) at the address specified
in Section 10(c) hereof, or at such other address as may be
provided to the Company in writing by the Holder of this Warrant.
10. Miscellaneous.
(a) No Rights as Shareholder. The Holder of this
Warrant shall not be entitled to vote or receive dividends or be
deemed the Holder of Class A Common Stock or any other securities
of the Company that may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any
of the rights of a shareholder of the Company or any right to
vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock,
change of par value or change of stock to no par value,
consolidation, merger, conveyance or otherwise) or to receive
notice of meetings, or to receive dividends or subscription
rights or otherwise until the Warrant shall have been exercised
and the shares purchasable upon the exercise hereof shall have
become deliverable, as provided herein.
(b) Replacement. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant and, in the case of mutilation, on
surrender and cancellation of this Warrant, the Company, at the
Holder's expense, will execute and deliver, in lieu of this
Warrant, a new Warrant of like tenor.
(c) Notice. Any notice given to either party under
this Warrant shall be in writing, and any notice hereunder shall
be deemed to have been given upon the earlier of delivery thereof
by hand delivery, by courier, or by standard form of
telecommunication or three (3) business days after the mailing
thereof in the U.S. mail if sent registered mail with postage
prepaid, addressed to the Company at its principal executive
offices and to the Holder at its address set forth in the
Company's books and records or at such other address as the
Holder may have provided to the Company in writing.
(d) Governing Law. This Warrant shall be governed
and construed under the laws of the State of California.
[Remainder of page intentionally left blank]
This Warrant is executed as of this 8 day of June, 1999.
AMERIGON INCORPORATED
By: /s/ Lon E. Bell
Name: Lon E. Bell
Title: Chief Executive Officer
EXHIBIT 1
NOTICE OF EXERCISE
TO: AMERIGON INCORPORATED
1. Check Box that Applies:
[ ] The undersigned hereby elects to purchase __________
shares of Class A Common Stock of AMERIGON INCORPORATED
pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price of such
shares in full.
[ ] The undersigned hereby elects to convert the attached
warrant into ________ shares of Class A Common Stock of
AMERIGON INCORPORATED pursuant to the terms of the
attached Warrant.
2. Please issue a certificate or certificates
representing said shares of Class A Common Stock in the name of
the undersigned or in such other name as is specified below:
------------------------------
(Name)
------------------------------
------------------------------
(Address)
3. The undersigned represents that the aforesaid
shares of Class A Common Stock are being acquired for the account
of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling
such shares.
---------------------------
Signature
CONTINGENT UNIT PURCHASE WARRANT
THIS SECURITY AND ANY SHARES OR WARRANTS ISSUED UPON EXERCISE OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
THE APPLICABLE SECURITY HAS BEEN REGISTERED UNDER THE ACT AND
SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED AND
(2) AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS
FURNISHED TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER
THE ACT AND THE APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
AMERIGON INCORPORATED
WARRANT TO PURCHASE COMMON STOCK AND CLASS A WARRANTS
This certifies that, for value received, Westar Capital
II LLC (the "Holder") is entitled to subscribe for and purchase
up to 627 units, each unit consisting of such number of Class A
Common Stock and such number of Class A Warrants of Amerigon
Incorporated, a California corporation (the "Company"), as
constitutes a Unit under the Unit Purchase Option dated February
18, 1997 from the Company to D. H. Blair Investment Banking
Corp., at the price specified in Section 2 hereof, subject to the
provisions and upon the terms and conditions hereinafter set
forth.
As used herein, the term "Class A Common Stock" shall
mean the Company's presently authorized Class A Common Stock, no
par value, and any stock into or for which such Common Stock may
hereafter be converted or exchanged, and the term "Unit" shall
mean that number of the Company's Class A Common Stock and Class
A Warrants that constitutes a Unit under the Unit Purchase
Options, as may be adjusted from time to time pursuant to the
terms of the Unit Purchase Option. Options to purchase a total
of 1700 Units were issued to D.H. Blair Investment Banking Corp.
and its assignees (collectively, the "Unit Purchase Option").
1. Term of Warrant; Contingent Exercise.
(a) Term. Subject to Section 1(b) hereof, the
purchase right represented by this Warrant is exercisable, in
whole or in part, at any time during a period beginning on June
8, 1999 and ending ninety days after the termination of the Unit
Purchase Option.
(b) Contingent Exercise. The number of units that may
be purchased pursuant to the exercise of this Warrant is limited
to a number of units equal to 36.9% multiplied by the number of
Units purchased pursuant to the exercise of the Unit Purchase
Option after the date hereof. To the extent that this would
result in the right to purchase a fractional number of shares,
the number of shares permitted to be purchased will be rounded
down to the lowest whole share; provided, however, that the
number of shares with respect to which this Warrant shall not
then have been exercised will appropriately reflect such
adjustment.
2. Warrant Price.
The Warrant Price per unit shall be the same price paid
by a holder to purchase a Unit under the Unit Purchase Option.
3. Method of Exercise or Conversion; Payment; Issuance of
New Warrant.
(a) Exercise. Subject to Section 1 hereof, the
purchase right represented by this Warrant may be exercised by
the Holder, in whole or in part, by the surrender of this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company and by the
payment to the Company, by cashier's check or wire transfer, of
an amount equal to the then applicable Warrant Price per unit
multiplied by the number of units then being purchased. The
Company agrees that the Class A Common Stock and Class A Warrants
constituting such units so purchased shall be deemed to be issued
to the Holder as the record owner of such shares and warrants as
of the close of business on the date on which this Warrant shall
have been surrendered and payment made for such units as
aforesaid. In the event of any exercise of this Warrant,
certificates for the shares of stock and the warrants
constituting the units so purchased shall be delivered to the
Holder within 15 business days thereafter and, unless this
Warrant has been fully exercised or expired, a new Warrant
representing the portion of the units, if any, with respect to
which this Warrant shall not then have been exercised, shall also
be issued to the Holder within such 15 business day period.
(b) Conversion. Subject to Section 1 hereof, the
Holder may convert this Warrant (the "Conversion Right"), in
whole or in part, into (i) the number of Class A Warrants that
constitute a Unit under the Unit Purchase Option multiplied by
the number of units for which this Warrant is being exercised and
(ii) the number of shares (less the number of shares which have
been previously exercised or as to which the Conversion Right has
been previously exercised) calculated pursuant to the following
formula by surrendering this Warrant (with the notice of exercise
form attached hereto as Exhibit 1 duly executed) at the principal
office of the Company specifying the number of shares the rights
to purchase which the Holder desires to convert:
X = Y -- B_
---
A
where: X = the number of shares of Class A
Common Stock to be issued to the
Holder;
Y = the number of shares of Class A
Common Stock subject to this Warrant for
which the Conversion Right is being
exercised;
A = the Market Price of the Common Stock
(as defined below) as of the trading
day immediately preceding the date of
exercise of this Warrant; and
B = the aggregate Warrant Price
For purposes hereof, the "Market Price of the Common
Stock" shall be the closing price per share of the
Class A Common Stock of the Company on the principal
national securities exchange on which the Class A
Common Stock of the Company is then listed or admitted
to trading or, if not then listed or traded on any such
exchange, on the NASDAQ National Market System, or if
then not listed or traded on such system, the closing
bid price per share on NASDAQ or other over-the-counter
trading market. If at any time such quotations are not
available, the market price of a share of Class A
Common Stock shall be the highest price per share which
the Company could obtain from a willing buyer (not a
current employee or director) for shares of Class A
Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by the
Board of Directors of the Company, unless the Company
shall become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the
surviving party, in which case the market price of a
share of Class A Common Stock shall be deemed to be the
value received by the holders of the Company's Class A
Common Stock for each share of Class A Common Stock
pursuant to the Company's acquisition.
The Company agrees that the shares and warrants issued
upon such conversion shall be deemed issued to the
Holder as the record owner of such shares and warrants
as of the close of business on the date on which this
Warrant shall have been surrendered as aforesaid. In
the event of any conversion of this Warrant,
certificates for the shares of stock so converted and
the warrants issued in connection therewith shall be
delivered to the holder hereof within 15 business days
thereafter and, unless this Warrant has been fully
converted or expired, a new Warrant representing the
portion of the units, if any, with respect to which
this Warrant shall not then have been converted, shall
also be issued to the holder hereof within such 15-day
period.
4. Stock Fully Paid; Reservation of Shares.
All Class A Common Stock which may be issued upon the
exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable, and free from all
United States taxes, liens and charges with respect to the issue
thereof. During the period within which the rights represented
by this Warrant may be exercised, the Company will at all times
have authorized, and reserved for the purpose of the issuance
upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Class A Common Stock to
provide for the exercise of the rights represented by this
Warrant.
5. Fractional Shares.
No fractional shares of Class A Common Stock and no
fractions of Class A Warrants will be issued in conjunction with
any exercise hereunder, but in lieu of such fractional shares the
Company shall make a cash payment therefore on the basis of the
Warrant Price then in effect.
6. Compliance with Securities Act; Legends.
The Holder of this Warrant, by acceptance hereof,
agrees that this Warrant and the Class A Warrants and the shares
of Class A Common Stock to be issued on exercise hereof are being
acquired for investment and that it will not offer, sell or
otherwise dispose of this Warrant or any shares of Class A Common
Stock or Class A Warrants to be issued upon exercise hereof
except under circumstances which will not result in a violation
of the Securities Act of 1933, as amended (the "Act"). This
Warrant and all shares of Class A Common Stock and all Class A
Warrants issued upon exercise of this Warrant (unless registered
under the Act) shall be stamped and imprinted with a legend
substantially in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER
THE ACT AND SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS
NOT REQUIRED AND (2) AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY IS FURNISHED TO THE COMPANY TO THE EFFECT THAT
REGISTRATION UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED."
This Warrant and all shares of Class A Common Stock issued upon
exercise of this Warrant and all Class A Warrants issued upon
exercise of this Warrant (unless registered under the Act) shall
also be stamped and imprinted with a legend substantially in the
following form:
"THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE,
ENCUMBRANCE OR OTHER DISPOSITION (EACH A "TRANSFER") AND
VOTING OF ANY OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE SHAREHOLDERS'
AGREEMENT AMONG CERTAIN SHAREHOLDERS NAMED THEREIN."
7. Notice of Exercise of Unit Purchase Option.
Whenever any units shall be purchased pursuant to the
Unit Purchase Option, within 30 days after such exercise the
Company shall notify the Holder (by first class mail, postage
prepaid) at the address specified in Section 8(c) hereof, or at
such other address as may be provided to the Company in writing
by the Holder of this Warrant.
8. Miscellaneous.
(a) No Rights as Shareholder. The Holder of this
Warrant shall not be entitled to vote or receive dividends or be
deemed the Holder of Class A Common Stock or any other securities
of the Company that may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any
of the rights of a shareholder of the Company or any right to
vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock,
change of par value or change of stock to no par value,
consolidation, merger, conveyance or otherwise) or to receive
notice of meetings, or to receive dividends or subscription
rights or otherwise until the Warrant shall have been exercised
and the securities purchasable upon the exercise hereof shall
have become deliverable, as provided herein.
(b) Replacement. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant and, in the case of mutilation, on
surrender and cancellation of this Warrant, the Company, at the
Holder's expense, will execute and deliver, in lieu of this
Warrant, a new Warrant of like tenor.
(c) Notice. Any notice given to either party under
this Warrant shall be in writing, and any notice hereunder shall
be deemed to have been given upon the earlier of delivery thereof
by hand delivery, by courier, or by standard form of
telecommunication or three (3) business days after the mailing
thereof in the U.S. mail if sent registered mail with postage
prepaid, addressed to the Company at its principal executive
offices and to the Holder at its address set forth in the
Company's books and records or at such other address as the
Holder may have provided to the Company in writing.
(d) Governing Law. This Warrant shall be governed and
construed under the laws of the State of California.
[Remainder of page intentionally left blank]
This Warrant is executed as of this 8th day of June, 1999.
AMERIGON INCORPORATED
By: /s/ Lon E. Bell
Name: Lon E. Bell
Title: Chief Executive Officer
EXHIBIT 1
NOTICE OF EXERCISE
TO: AMERIGON INCORPORATED
1. Check Box that Applies:
[ ] The undersigned hereby elects to purchase __________
"units" pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price of
such shares in full.
[ ] The undersigned hereby elects to convert the attached
warrant into ________ "units" pursuant to the terms of
the attached Warrant and to receive ______ shares of
Class A Common Stock and ________ Class A Warrants
pursuant thereto.
2. Please issue a certificate or certificates representing
said shares of the Class A Common Stock and Class A Warrants in the
name of the undersigned or in such other name as is specified below:
-----------------------------
(Name)
-----------------------------
-----------------------------
(Address)
3. The undersigned represents that the aforesaid
shares of Class A Common Stock and Class A Warrants are being
acquired for the account of the undersigned for investment and
not with a view to, or for resale in connection with, the
distribution thereof and that the undersigned has no present
intention of distributing or reselling such shares.
------------------------------
Signature
THIS SECURITY AND ANY SHARES OR WARRANTS ISSUED UPON EXERCISE OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
THE APPLICABLE SECURITY HAS BEEN REGISTERED UNDER THE ACT AND
SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED AND
(2) AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS
FURNISHED TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER
THE ACT AND THE APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
AMERIGON INCORPORATED
WARRANT TO PURCHASE COMMON STOCK AND CLASS A WARRANTS
This certifies that, for value received, Big Beaver
Investments LLC (the "Holder") is entitled to subscribe for and
purchase up to 627 units, each unit consisting of such number of
Class A Common Stock and such number of Class A Warrants of
Amerigon Incorporated, a California corporation (the "Company"),
as constitutes a Unit under the Unit Purchase Option dated
February 18, 1997 from the Company to D. H. Blair Investment
Banking Corp., at the price specified in Section 2 hereof,
subject to the provisions and upon the terms and conditions
hereinafter set forth.
As used herein, the term "Class A Common Stock" shall
mean the Company's presently authorized Class A Common Stock, no
par value, and any stock into or for which such Common Stock may
hereafter be converted or exchanged, and the term "Unit" shall
mean that number of the Company's Class A Common Stock and Class
A Warrants that constitutes a Unit under the Unit Purchase
Options, as may be adjusted from time to time pursuant to the
terms of the Unit Purchase Option. Options to purchase a total
of 1700 Units were issued to D.H. Blair Investment Banking Corp.
and its assignees (collectively, the "Unit Purchase Option").
1. Term of Warrant; Contingent Exercise.
(a) Term. Subject to Section 1(b) hereof, the
purchase right represented by this Warrant is exercisable, in
whole or in part, at any time during a period beginning on June
8, 1999 and ending ninety days after the termination of the Unit
Purchase Option.
(b) Contingent Exercise. The number of units that may
be purchased pursuant to the exercise of this Warrant is limited
to a number of units equal to 36.9% multiplied by the number of
Units purchased pursuant to the exercise of the Unit Purchase
Option after the date hereof. To the extent that this would
result in the right to purchase a fractional number of shares,
the number of shares permitted to be purchased will be rounded
down to the lowest whole share; provided, however, that the
number of shares with respect to which this Warrant shall not
then have been exercised will appropriately reflect such
adjustment.
2. Warrant Price.
The Warrant Price per unit shall be the same price paid
by a holder to purchase a Unit under the Unit Purchase Option.
3. Method of Exercise or Conversion; Payment; Issuance of
New Warrant.
(a) Exercise. Subject to Section 1 hereof, the
purchase right represented by this Warrant may be exercised by
the Holder, in whole or in part, by the surrender of this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company and by the
payment to the Company, by cashier's check or wire transfer, of
an amount equal to the then applicable Warrant Price per unit
multiplied by the number of units then being purchased. The
Company agrees that the Class A Common Stock and Class A Warrants
constituting such units so purchased shall be deemed to be issued
to the Holder as the record owner of such shares and warrants as
of the close of business on the date on which this Warrant shall
have been surrendered and payment made for such units as
aforesaid. In the event of any exercise of this Warrant,
certificates for the shares of stock and the warrants
constituting the units so purchased shall be delivered to the
Holder within 15 business days thereafter and, unless this
Warrant has been fully exercised or expired, a new Warrant
representing the portion of the units, if any, with respect to
which this Warrant shall not then have been exercised, shall also
be issued to the Holder within such 15 business day period.
(b) Conversion. Subject to Section 1 hereof, the
Holder may convert this Warrant (the "Conversion Right"), in
whole or in part, into (i) the number of Class A Warrants that
constitute a Unit under the Unit Purchase Option multiplied by
the number of units for which this Warrant is being exercised and
(ii) the number of shares (less the number of shares which have
been previously exercised or as to which the Conversion Right has
been previously exercised) calculated pursuant to the following
formula by surrendering this Warrant (with the notice of exercise
form attached hereto as Exhibit 1 duly executed) at the principal
office of the Company specifying the number of shares the rights
to purchase which the Holder desires to convert:
X = Y -- B
---
A
where: X = the number of shares of Class A
Common Stock to be issued to the
Holder;
Y = the number of shares of Class A
Common Stock subject to this Warrant for
which the Conversion Right is being
exercised;
A = the Market Price of the Common Stock
(as defined below) as of the trading
day immediately preceding the date of
exercise of this Warrant; and
B = the aggregate Warrant Price
For purposes hereof, the "Market Price of the Common
Stock" shall be the closing price per share of the
Class A Common Stock of the Company on the principal
national securities exchange on which the Class A
Common Stock of the Company is then listed or admitted
to trading or, if not then listed or traded on any such
exchange, on the NASDAQ National Market System, or if
then not listed or traded on such system, the closing
bid price per share on NASDAQ or other over-the-counter
trading market. If at any time such quotations are not
available, the market price of a share of Class A
Common Stock shall be the highest price per share which
the Company could obtain from a willing buyer (not a
current employee or director) for shares of Class A
Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by the
Board of Directors of the Company, unless the Company
shall become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the
surviving party, in which case the market price of a
share of Class A Common Stock shall be deemed to be the
value received by the holders of the Company's Class A
Common Stock for each share of Class A Common Stock
pursuant to the Company's acquisition.
The Company agrees that the shares and warrants issued
upon such conversion shall be deemed issued to the
Holder as the record owner of such shares and warrants
as of the close of business on the date on which this
Warrant shall have been surrendered as aforesaid. In
the event of any conversion of this Warrant,
certificates for the shares of stock so converted and
the warrants issued in connection therewith shall be
delivered to the holder hereof within 15 business days
thereafter and, unless this Warrant has been fully
converted or expired, a new Warrant representing the
portion of the units, if any, with respect to which
this Warrant shall not then have been converted, shall
also be issued to the holder hereof within such 15-day
period.
4. Stock Fully Paid; Reservation of Shares.
All Class A Common Stock which may be issued upon the
exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable, and free from all
United States taxes, liens and charges with respect to the issue
thereof. During the period within which the rights represented
by this Warrant may be exercised, the Company will at all times
have authorized, and reserved for the purpose of the issuance
upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Class A Common Stock to
provide for the exercise of the rights represented by this
Warrant.
5. Fractional Shares.
No fractional shares of Class A Common Stock and no
fractions of Class A Warrants will be issued in conjunction with
any exercise hereunder, but in lieu of such fractional shares the
Company shall make a cash payment therefore on the basis of the
Warrant Price then in effect.
6. Compliance with Securities Act; Legends.
The Holder of this Warrant, by acceptance hereof,
agrees that this Warrant and the Class A Warrants and the shares
of Class A Common Stock to be issued on exercise hereof are being
acquired for investment and that it will not offer, sell or
otherwise dispose of this Warrant or any shares of Class A Common
Stock or Class A Warrants to be issued upon exercise hereof
except under circumstances which will not result in a violation
of the Securities Act of 1933, as amended (the "Act"). This
Warrant and all shares of Class A Common Stock and all Class A
Warrants issued upon exercise of this Warrant (unless registered
under the Act) shall be stamped and imprinted with a legend
substantially in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER
THE ACT AND SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS
NOT REQUIRED AND (2) AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY IS FURNISHED TO THE COMPANY TO THE EFFECT THAT
REGISTRATION UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED."
This Warrant and all shares of Class A Common Stock issued upon
exercise of this Warrant and all Class A Warrants issued upon
exercise of this Warrant (unless registered under the Act) shall
also be stamped and imprinted with a legend substantially in the
following form:
"THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE,
ENCUMBRANCE OR OTHER DISPOSITION (EACH A "TRANSFER") AND
VOTING OF ANY OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE SHAREHOLDERS'
AGREEMENT AMONG CERTAIN SHAREHOLDERS NAMED THEREIN."
7. Notice of Exercise of Unit Purchase Option.
Whenever any units shall be purchased pursuant to the
Unit Purchase Option, within 30 days after such exercise the
Company shall notify the Holder (by first class mail, postage
prepaid) at the address specified in Section 8(c) hereof, or at
such other address as may be provided to the Company in writing
by the Holder of this Warrant.
8. Miscellaneous.
(a) No Rights as Shareholder. The Holder of this
Warrant shall not be entitled to vote or receive dividends or be
deemed the Holder of Class A Common Stock or any other securities
of the Company that may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any
of the rights of a shareholder of the Company or any right to
vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock,
change of par value or change of stock to no par value,
consolidation, merger, conveyance or otherwise) or to receive
notice of meetings, or to receive dividends or subscription
rights or otherwise until the Warrant shall have been exercised
and the securities purchasable upon the exercise hereof shall
have become deliverable, as provided herein.
(b) Replacement. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant and, in the case of mutilation, on
surrender and cancellation of this Warrant, the Company, at the
Holder's expense, will execute and deliver, in lieu of this
Warrant, a new Warrant of like tenor.
(c) Notice. Any notice given to either party under
this Warrant shall be in writing, and any notice hereunder shall
be deemed to have been given upon the earlier of delivery thereof
by hand delivery, by courier, or by standard form of
telecommunication or three (3) business days after the mailing
thereof in the U.S. mail if sent registered mail with postage
prepaid, addressed to the Company at its principal executive
offices and to the Holder at its address set forth in the
Company's books and records or at such other address as the
Holder may have provided to the Company in writing.
(d) Governing Law. This Warrant shall be governed and
construed under the laws of the State of California.
[Remainder of page intentionally left blank]
This Warrant is executed as of this 8th day of June, 1999.
AMERIGON INCORPORATED
By: /s/ Lon E. Bell
Name: Lon E. Bell
Title: Chief Executive Officer
EXHIBIT 1
NOTICE OF EXERCISE
TO: AMERIGON INCORPORATED
1. Check Box that Applies:
[ ] The undersigned hereby elects to purchase __________
"units" pursuant to the terms of the attached Warrant,
and tenders herewith payment of the purchase price of
such shares in full.
[ ] The undersigned hereby elects to convert the attached
warrant into ________ "units" pursuant to the terms of
the attached Warrant and to receive ______ shares of
Class A Common Stock and ________ Class A Warrants
pursuant thereto.
2. Please issue a certificate or certificates
representing said shares of the Class A Common Stock and Class A
Warrants in the name of the undersigned or in such other name as
is specified below:
---------------------------
(Name)
---------------------------
---------------------------
(Address)
3. The undersigned represents that the aforesaid
shares of Class A Common Stock and Class A Warrants are being
acquired for the account of the undersigned for investment and
not with a view to, or for resale in connection with, the
distribution thereof and that the undersigned has no present
intention of distributing or reselling such shares.
---------------------------
Signature
CONTINGENT COMMON STOCK PURCHASE WARRANT
THIS SECURITY AND ANY SHARES ISSUED UPON EXERCISE OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE
APPLICABLE SECURITY HAS BEEN REGISTERED UNDER THE ACT AND SUCH
LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED AND (2)
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS FURNISHED TO
THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
AMERIGON INCORPORATED
WARRANT TO PURCHASE COMMON STOCK
This certifies that, for value received, Westar Capital
II LLC (the "Holder") is entitled to subscribe for and purchase
up to 9225 shares (subject to adjustment from time to time
pursuant to the provisions of Section 5 hereof) of fully paid and
nonassessable Class A Common Stock of Amerigon Incorporated, a
California corporation (the "Company"), at the price specified in
Section 2 hereof, as such price may be adjusted from time to time
pursuant to Section 5 hereof (the "Warrant Price"), subject to
the provisions and upon the terms and conditions hereinafter set
forth.
As used herein, the term "Class A Common Stock" shall
mean the Company's presently authorized Class A Common Stock, no
par value, and any stock into or for which such Common Stock may
hereafter be converted or exchanged.
1. Term of Warrant; Contingent Exercise.
(a) Term. Subject to Section 1(b) hereof, the
purchase right represented by this Warrant is exercisable, in
whole or in part, at any time during a period beginning on June
7, 1999 and ending ninety days after the latest of the end of the
terms of the warrants as respectively set forth in Section 1(a)
of the Common Stock Purchase Warrant dated December 21, 1998 from
the Company to Spencer Trask Securities, Inc., Section 1(a) of
the Common Stock Purchase Warrant dated December 21, 1998 from
the Company to Adam K. Stern and Section 1(a) of the Common Stock
Purchase Warrant dated December 21, 1998 from the Company to
Roger K. Baumberger and Section 1(a) of the Common Stock Purchase
Warrant dated March 24, 1999 from the Company to Matthew
Schilowitz (the "Trask Warrants").
(b) Contingent Exercise. The number of shares that
may be purchased pursuant to the exercise of this Warrant is
limited to a number of shares equal to 36.9% multiplied by the
number of shares purchased pursuant to the exercise of the Trask
Warrants after the date hereof. To the extent that this would
result in the right to purchase a fractional number of shares,
the number of shares permitted to be purchased will be rounded
down to the lowest whole share; provided, however, that the
number of shares with respect to which this Warrant shall not
then have been exercised will appropriately reflect such
adjustment.
2. Warrant Price.
The Warrant Price is $5.30 per share, subject to
adjustment from time to time pursuant to the provisions of
Section 5 hereof.
3. Method of Exercise or Conversion; Payment; Issuance of
New Warrant.
(a) Exercise. Subject to Section 1 hereof, the
purchase right represented by this Warrant may be exercised by
the Holder, in whole or in part, by the surrender of this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company and by the
payment to the Company, by cashier's check or wire transfer, of
an amount equal to the then applicable Warrant Price per share
multiplied by the number of shares then being purchased. The
Company agrees that the shares so purchased shall be deemed to be
issued to the Holder as the record owner of such shares as of the
close of business on the date on which this Warrant shall have
been surrendered and payment made for such shares as aforesaid.
In the event of any exercise of this Warrant, certificates for
the shares of stock so purchased shall be delivered to the Holder
within 15 business days thereafter and, unless this Warrant has
been fully exercised or expired, a new Warrant representing the
portion of the shares, if any, with respect to which this Warrant
shall not then have been exercised, shall also be issued to the
Holder within such 15 business day period.
(b) Conversion. Subject to Section 1 hereof, the
Holder may convert this Warrant (the "Conversion Right"), in
whole or in part, into the number of shares (less the number of
shares which have been previously exercised or as to which the
Conversion Right has been previously exercised) calculated
pursuant to the following formula by surrendering this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company specifying
the number of shares the rights to purchase which the Holder
desires to convert:
Y (A - B)
---------
X = A
where: X = the number of shares of Class A
Common Stock to be issued to the
Holder;
Y = the number of shares of Class A
Common Stock subject to this Warrant for
which the Conversion Right is being
exercised;
A = the Market Price of the Common
Stock (as defined below) as of the trading
day immediately preceding the date of
exercise of this Warrant; and
B = the Warrant Price
For purposes hereof, the "Market Price of the Common
Stock" shall be the closing price per share of the
Class A Common Stock of the Company on the principal
national securities exchange on which the Class A
Common Stock of the Company is then listed or admitted
to trading or, if not then listed or traded on any such
exchange, on the NASDAQ National Market System, or if
then not listed or traded on such system, the closing
bid price per share on NASDAQ or other over-the-counter
trading market. If at any time such quotations are not
available, the market price of a share of Class A
Common Stock shall be the highest price per share which
the Company could obtain from a willing buyer (not a
current employee or director) for shares of Class A
Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by the
Board of Directors of the Company, unless the Company
shall become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the
surviving party, in which case the market price of a
share of Class A Common Stock shall be deemed to be the
value received by the holders of the Company's Class A
Common Stock for each share of Class A Common Stock
pursuant to the Company's acquisition.
The Company agrees that the shares so converted shall
be deemed issued to the Holder as the record owner of
such shares as of the close of business on the date on
which this Warrant shall have been surrendered as
aforesaid. In the event of any conversion of this
Warrant, certificates for the shares of stock so
converted shall be delivered to the holder hereof
within 15 business days thereafter and, unless this
Warrant has been fully converted or expired, a new
Warrant representing the portion of the shares, if any,
with respect to which this Warrant shall not then have
been converted, shall also be issued to the holder
hereof within such 15-day period.
4. Stock Fully Paid; Reservation of Shares.
All Class A Common Stock which may be issued upon the
exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable, and free from all
United States taxes, liens and charges with respect to the issue
thereof. During the period within which the rights represented
by this Warrant may be exercised, the Company will at all times
have authorized, and reserved for the purpose of the issuance
upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Class A Common Stock to
provide for the exercise of the rights represented by this
Warrant.
5. Adjustment of Purchase Price and Number of Shares.
The exercise price and number of shares purchasable on
exercise of this Warrant shall adjust identically with any
adjustments made pursuant to the Trask Warrants and the provisions
of Section 5 of the Trask Warrants and the definitions of the
different terms therein are hereby incorporated by reference.
6. Notice of Adjustments.
Whenever any Warrant Price shall be adjusted pursuant
to Section 5 hereof, the Company shall prepare a certificate
signed by its chief financial officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount
of the adjustment, the method by which such adjustment was
calculated, the Warrant Price after giving effect to such
adjustment and the number of shares then purchasable upon
exercise of this Warrant, and shall cause copies of such
certificate to be mailed (by first class mail, postage prepaid)
to the Holder of this Warrant at the address specified in Section
10(c) hereof, or at such other address as may be provided to the
Company in writing by the Holder of this Warrant.
7. Fractional Shares.
No fractional shares of Class A Common Stock will be
issued in conjunction with any exercise hereunder, but in lieu of
such fractional shares the Company shall make a cash payment
therefore on the basis of the Warrant Price then in effect.
8. Compliance with Securities Act; Legends.
The Holder of this Warrant, by acceptance hereof,
agrees that this Warrant and the shares of Class A Common Stock
to be issued on exercise hereof are being acquired for investment
and that it will not offer, sell or otherwise dispose of this
Warrant or any shares of Class A Common Stock to be issued upon
exercise hereof except under circumstances which will not result
in a violation of the Securities Act of 1933, as amended (the
"Act"). This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER
THE ACT AND SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS
NOT REQUIRED AND (2) AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY IS FURNISHED TO THE COMPANY TO THE EFFECT THAT
REGISTRATION UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED."
This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE,
ENCUMBRANCE OR OTHER DISPOSITION (EACH, A "TRANSFER") AND
VOTING OF ANY OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE RESTRICTED BY THE TERMS OF A SHAREHOLDERS'
AGREEMENT AMONG CERTAIN SHAREHOLDERS NAMED THEREIN."
9. Notice of Exercise of Class A Warrants.
Whenever any Trask Warrants shall be exercised, within
30 days after such exercise the Company shall notify the Holder
(by first class mail, postage prepaid) at the address specified
in Section 10(c) hereof, or at such other address as may be
provided to the Company in writing by the Holder of this Warrant.
10. Miscellaneous.
(a) No Rights as Shareholder. The Holder of this
Warrant shall not be entitled to vote or receive dividends or be
deemed the Holder of Class A Common Stock or any other securities
of the Company that may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any
of the rights of a shareholder of the Company or any right to
vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock,
change of par value or change of stock to no par value,
consolidation, merger, conveyance or otherwise) or to receive
notice of meetings, or to receive dividends or subscription
rights or otherwise until the Warrant shall have been exercised
and the shares purchasable upon the exercise hereof shall have
become deliverable, as provided herein.
(b) Replacement. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant and, in the case of mutilation, on
surrender and cancellation of this Warrant, the Company, at the
Holder's expense, will execute and deliver, in lieu of this
Warrant, a new Warrant of like tenor.
(c) Notice. Any notice given to either party under
this Warrant shall be in writing, and any notice hereunder shall
be deemed to have been given upon the earlier of delivery thereof
by hand delivery, by courier, or by standard form of
telecommunication or three (3) business days after the mailing
thereof in the U.S. mail if sent registered mail with postage
prepaid, addressed to the Company at its principal executive
offices and to the Holder at its address set forth in the
Company's books and records or at such other address as the
Holder may have provided to the Company in writing.
(d) Governing Law. This Warrant shall be governed and
construed under the laws of the State of California.
[Remainder of page intentionally left blank]
This Warrant is executed as of this 8 day of June, 1999.
AMERIGON INCORPORATED
By: /s/ Lon E. Bell
Name: Lon E. Bell
Title: Chief Executive Officer
EXHIBIT 1
NOTICE OF EXERCISE
TO: AMERIGON INCORPORATED
1. Check Box that Applies:
[ ] The undersigned hereby elects to purchase __________
shares of Class A Common Stock of AMERIGON INCORPORATED
pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price of such
shares in full.
[ ] The undersigned hereby elects to convert the attached
warrant into _______ shares of Class A Common Stock of
AMERIGON INCORPORATED pursuant to the terms of the
attached Warrant.
2. Please issue a certificate or certificates
representing said shares of Class A Common Stock in the name of
the undersigned or in such other name as is specified below:
-----------------------------
(Name)
-----------------------------
-----------------------------
(Address)
3. The undersigned represents that the aforesaid
shares of Class A Common Stock are being acquired for the account
of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling
such shares.
----------------------------
Signature
CONTINGENT COMMON STOCK PURCHASE WARRANT
THIS SECURITY AND ANY SHARES ISSUED UPON EXERCISE OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE
APPLICABLE SECURITY HAS BEEN REGISTERED UNDER THE ACT AND SUCH
LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED AND (2)
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS FURNISHED TO
THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
AMERIGON INCORPORATED
WARRANT TO PURCHASE COMMON STOCK
This certifies that, for value received, Big Beaver
Investments LLC (the "Holder") is entitled to subscribe for and
purchase up to 9225 shares (subject to adjustment from time to
time pursuant to the provisions of Section 5 hereof) of fully
paid and nonassessable Class A Common Stock of Amerigon
Incorporated, a California corporation (the "Company"), at the
price specified in Section 2 hereof, as such price may be
adjusted from time to time pursuant to Section 5 hereof (the
"Warrant Price"), subject to the provisions and upon the terms
and conditions hereinafter set forth.
As used herein, the term "Class A Common Stock" shall
mean the Company's presently authorized Class A Common Stock, no
par value, and any stock into or for which such Common Stock may
hereafter be converted or exchanged.
1. Term of Warrant; Contingent Exercise.
(a) Term. Subject to Section 1(b) hereof, the
purchase right represented by this Warrant is exercisable, in
whole or in part, at any time during a period beginning on June
7, 1999 and ending ninety days after the latest of the end of the
terms of the warrants as respectively set forth in Section 1(a)
of the Common Stock Purchase Warrant dated December 21, 1998 from
the Company to Spencer Trask Securities, Inc., Section 1(a) of
the Common Stock Purchase Warrant dated December 21, 1998 from
the Company to Adam K. Stern and Section 1(a) of the Common Stock
Purchase Warrant dated December 21, 1998 from the Company to
Roger K. Baumberger and Section 1(a) of the Common Stock Purchase
Warrant dated March 24, 1999 from the Company to Matthew
Schilowitz (the "Trask Warrants").
(b) Contingent Exercise. The number of shares that
may be purchased pursuant to the exercise of this Warrant is
limited to a number of shares equal to 36.9% multiplied by the
number of shares purchased pursuant to the exercise of the Trask
Warrants after the date hereof. To the extent that this would
result in the right to purchase a fractional number of shares,
the number of shares permitted to be purchased will be rounded
down to the lowest whole share; provided, however, that the
number of shares with respect to which this Warrant shall not
then have been exercised will appropriately reflect such
adjustment.
2. Warrant Price.
The Warrant Price is $5.30 per share, subject to
adjustment from time to time pursuant to the provisions of
Section 5 hereof.
3. Method of Exercise or Conversion; Payment; Issuance of
New Warrant.
(a) Exercise. Subject to Section 1 hereof, the
purchase right represented by this Warrant may be exercised by
the Holder, in whole or in part, by the surrender of this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company and by the
payment to the Company, by cashier's check or wire transfer, of
an amount equal to the then applicable Warrant Price per share
multiplied by the number of shares then being purchased. The
Company agrees that the shares so purchased shall be deemed to be
issued to the Holder as the record owner of such shares as of the
close of business on the date on which this Warrant shall have
been surrendered and payment made for such shares as aforesaid.
In the event of any exercise of this Warrant, certificates for
the shares of stock so purchased shall be delivered to the Holder
within 15 business days thereafter and, unless this Warrant has
been fully exercised or expired, a new Warrant representing the
portion of the shares, if any, with respect to which this Warrant
shall not then have been exercised, shall also be issued to the
Holder within such 15 business day period.
(b) Conversion. Subject to Section 1 hereof, the
Holder may convert this Warrant (the "Conversion Right"), in
whole or in part, into the number of shares (less the number of
shares which have been previously exercised or as to which the
Conversion Right has been previously exercised) calculated
pursuant to the following formula by surrendering this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company specifying
the number of shares the rights to purchase which the Holder
desires to convert:
Y (A - B)
-------
X = A
where: X = the number of shares of Class A
Common Stock to be issued to the
Holder;
Y = the number of shares of Class A
A Common Stock subject to this Warrant for
which the Conversion Right is being
exercised;
A = the Market Price of the Common Stock
(as defined below) as of the trading
day immediately preceding the date of
exercise of this Warrant; and
B = the Warrant Price
For purposes hereof, the "Market Price of the Common
Stock" shall be the closing price per share of the
Class A Common Stock of the Company on the principal
national securities exchange on which the Class A
Common Stock of the Company is then listed or admitted
to trading or, if not then listed or traded on any such
exchange, on the NASDAQ National Market System, or if
then not listed or traded on such system, the closing
bid price per share on NASDAQ or other over-the-counter
trading market. If at any time such quotations are not
available, the market price of a share of Class A
Common Stock shall be the highest price per share which
the Company could obtain from a willing buyer (not a
current employee or director) for shares of Class A
Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by the
Board of Directors of the Company, unless the Company
shall become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the
surviving party, in which case the market price of a
share of Class A Common Stock shall be deemed to be the
value received by the holders of the Company's Class A
Common Stock for each share of Class A Common Stock
pursuant to the Company's acquisition.
The Company agrees that the shares so converted shall
be deemed issued to the Holder as the record owner of
such shares as of the close of business on the date on
which this Warrant shall have been surrendered as
aforesaid. In the event of any conversion of this
Warrant, certificates for the shares of stock so
converted shall be delivered to the holder hereof
within 15 business days thereafter and, unless this
Warrant has been fully converted or expired, a new
Warrant representing the portion of the shares, if any,
with respect to which this Warrant shall not then have
been converted, shall also be issued to the holder
hereof within such 15-day period.
4. Stock Fully Paid; Reservation of Shares.
All Class A Common Stock which may be issued upon the
exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable, and free from all
United States taxes, liens and charges with respect to the issue
thereof. During the period within which the rights represented
by this Warrant may be exercised, the Company will at all times
have authorized, and reserved for the purpose of the issuance
upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Class A Common Stock to
provide for the exercise of the rights represented by this
Warrant.
5. Adjustment of Purchase Price and Number of Shares.
The exercise price and number of shares purchasable on
exercise of this Warrant shall adjust identically with any
adjustments made pursuant to the Trask Warrants and the provisions
of Section 5 of the Trask Warrants and the definitions of the
different terms therein are hereby incorporated by reference.
6. Notice of Adjustments.
Whenever any Warrant Price shall be adjusted pursuant
to Section 5 hereof, the Company shall prepare a certificate
signed by its chief financial officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount
of the adjustment, the method by which such adjustment was
calculated, the Warrant Price after giving effect to such
adjustment and the number of shares then purchasable upon
exercise of this Warrant, and shall cause copies of such
certificate to be mailed (by first class mail, postage prepaid)
to the Holder of this Warrant at the address specified in Section
10(c) hereof, or at such other address as may be provided to the
Company in writing by the Holder of this Warrant.
7. Fractional Shares.
No fractional shares of Class A Common Stock will be
issued in conjunction with any exercise hereunder, but in lieu of
such fractional shares the Company shall make a cash payment
therefore on the basis of the Warrant Price then in effect.
8. Compliance with Securities Act; Legends.
The Holder of this Warrant, by acceptance hereof,
agrees that this Warrant and the shares of Class A Common Stock
to be issued on exercise hereof are being acquired for investment
and that it will not offer, sell or otherwise dispose of this
Warrant or any shares of Class A Common Stock to be issued upon
exercise hereof except under circumstances which will not result
in a violation of the Securities Act of 1933, as amended (the
"Act"). This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER
THE ACT AND SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS
NOT REQUIRED AND (2) AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY IS FURNISHED TO THE COMPANY TO THE EFFECT THAT
REGISTRATION UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED."
This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE,
ENCUMBRANCE OR OTHER DISPOSITION (EACH, A "TRANSFER") AND
VOTING OF ANY OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE RESTRICTED BY THE TERMS OF A SHAREHOLDERS'
AGREEMENT AMONG CERTAIN SHAREHOLDERS NAMED THEREIN."
9. Notice of Exercise of Class A Warrants.
Whenever any Trask Warrants shall be exercised, within
30 days after such exercise the Company shall notify the Holder
(by first class mail, postage prepaid) at the address specified
in Section 10(c) hereof, or at such other address as may be
provided to the Company in writing by the Holder of this Warrant.
10. Miscellaneous.
(a) No Rights as Shareholder. The Holder of this
Warrant shall not be entitled to vote or receive dividends or be
deemed the Holder of Class A Common Stock or any other securities
of the Company that may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any
of the rights of a shareholder of the Company or any right to
vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock,
change of par value or change of stock to no par value,
consolidation, merger, conveyance or otherwise) or to receive
notice of meetings, or to receive dividends or subscription
rights or otherwise until the Warrant shall have been exercised
and the shares purchasable upon the exercise hereof shall have
become deliverable, as provided herein.
(b) Replacement. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant and, in the case of mutilation, on
surrender and cancellation of this Warrant, the Company, at the
Holder's expense, will execute and deliver, in lieu of this
Warrant, a new Warrant of like tenor.
(c) Notice. Any notice given to either party under
this Warrant shall be in writing, and any notice hereunder shall
be deemed to have been given upon the earlier of delivery thereof
by hand delivery, by courier, or by standard form of
telecommunication or three (3) business days after the mailing
thereof in the U.S. mail if sent registered mail with postage
prepaid, addressed to the Company at its principal executive
offices and to the Holder at its address set forth in the
Company's books and records or at such other address as the
Holder may have provided to the Company in writing.
(d) Governing Law. This Warrant shall be governed and
construed under the laws of the State of California.
[Remainder of page intentionally left blank]
This Warrant is executed as of this 8 day of June, 1999.
AMERIGON INCORPORATED
By: /s/ Lon E. Bell
Name: Lon E. Bell
Title: Chief Executive Officer
EXHIBIT 1
NOTICE OF EXERCISE
TO: AMERIGON INCORPORATED
1. Check Box that Applies:
[ ] The undersigned hereby elects to purchase __________
shares of Class A Common Stock of AMERIGON INCORPORATED
pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price of such
shares in full.
[ ] The undersigned hereby elects to convert the attached
warrant into ________ shares of Class A Common Stock of
AMERIGON INCORPORATED pursuant to the terms of the
attached Warrant.
2. Please issue a certificate or certificates
representing said shares of Class A Common Stock in the name of
the undersigned or in such other name as is specified below:
-----------------------------
(Name)
-----------------------------
-----------------------------
(Address)
3. The undersigned represents that the aforesaid
shares of Class A Common Stock are being acquired for the account
of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling
such shares.
----------------------------
Signature
CONTINGENT COMMON STOCK PURCHASE WARRANT
THIS SECURITY AND ANY SHARES ISSUED UPON EXERCISE OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE
APPLICABLE SECURITY HAS BEEN REGISTERED UNDER THE ACT AND SUCH
LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED AND (2)
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS FURNISHED TO
THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
AMERIGON INCORPORATED
WARRANT TO PURCHASE COMMON STOCK
This certifies that, for value received, Westar Capital
II LLC (the "Holder") is entitled to subscribe for and purchase
up to 4428 shares (subject to adjustment from time to time
pursuant to the provisions of Section 5 hereof) of fully paid and
nonassessable Class A Common Stock of Amerigon Incorporated, a
California corporation (the "Company"), at the price specified in
Section 2 hereof, as such price may be adjusted from time to time
pursuant to Section 5 hereof (the "Warrant Price"), subject to
the provisions and upon the terms and conditions hereinafter set
forth.
As used herein, the term "Class A Common Stock" shall
mean the Company's presently authorized Class A Common Stock, no
par value, and any stock into or for which such Common Stock may
hereafter be converted or exchanged.
1. Term of Warrant; Contingent Exercise.
(a) Term. Subject to Section 1(b) hereof, the
purchase right represented by this Warrant is exercisable, in
whole or in part, at any time during a period beginning on June
7, 1999 and ending ninety days after the later of the two
"Warrant Expiration Dates" as defined in the Warrant to Purchase
Class A Common Stock dated December 29, 1995 from the Company to
Sutro & Co. and the Warrant to Purchase Class A Common Stock
dated December 29, 1995 from the Company to Lido Consulting, Inc.
(the "1995 Private Placement Warrants").
(b) Contingent Exercise. The number of shares that
may be purchased pursuant to the exercise of this Warrant is
limited to a number of shares equal to 36.9% multiplied by the
number of shares purchased pursuant to the exercise of the 1995
Private Placement Warrants after the date hereof. To the extent
that this would result in the right to purchase a fractional
number of shares, the number of shares permitted to be purchased
will be rounded down to the lowest whole share; provided,
however, that the number of shares with respect to which this
Warrant shall not then have been exercised will appropriately
reflect such adjustment.
2. Warrant Price.
The Warrant Price is $51.25 per share, subject to
adjustment from time to time pursuant to the provisions of
Section 5 hereof.
3. Method of Exercise or Conversion; Payment; Issuance of
New Warrant.
(a) Exercise. Subject to Section 1 hereof, the
purchase right represented by this Warrant may be exercised by
the Holder, in whole or in part, by the surrender of this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company and by the
payment to the Company, by cashier's check or wire transfer, of
an amount equal to the then applicable Warrant Price per share
multiplied by the number of shares then being purchased. The
Company agrees that the shares so purchased shall be deemed to be
issued to the Holder as the record owner of such shares as of the
close of business on the date on which this Warrant shall have
been surrendered and payment made for such shares as aforesaid.
In the event of any exercise of this Warrant, certificates for
the shares of stock so purchased shall be delivered to the Holder
within 15 business days thereafter and, unless this Warrant has
been fully exercised or expired, a new Warrant representing the
portion of the shares, if any, with respect to which this Warrant
shall not then have been exercised, shall also be issued to the
Holder within such 15 business day period.
(b) Conversion. Subject to Section 1 hereof, the
Holder may convert this Warrant (the "Conversion Right"), in
whole or in part, into the number of shares (less the number of
shares which have been previously exercised or as to which the
Conversion Right has been previously exercised) calculated
pursuant to the following formula by surrendering this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company specifying
the number of shares the rights to purchase which the Holder
desires to convert:
Y (A - B)
---------
X = A
where: X = the number of shares of Class A
Common Stock to be issued to the
Holder;
Y = the number of shares of Class A
Common Stock subject to this Warrant for
which the Conversion Right is being
exercised;
A = the Market Price of the Common Stock
(as defined below) as of the trading
day immediately preceding the date of
exercise of this Warrant; and
B = the Warrant Price
For purposes hereof, the "Market Price of the Common
Stock" shall be the closing price per share of the
Class A Common Stock of the Company on the principal
national securities exchange on which the Class A
Common Stock of the Company is then listed or admitted
to trading or, if not then listed or traded on any such
exchange, on the NASDAQ National Market System, or if
then not listed or traded on such system, the closing
bid price per share on NASDAQ or other over-the-counter
trading market. If at any time such quotations are not
available, the market price of a share of Class A
Common Stock shall be the highest price per share which
the Company could obtain from a willing buyer (not a
current employee or director) for shares of Class A
Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by the
Board of Directors of the Company, unless the Company
shall become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the
surviving party, in which case the market price of a
share of Class A Common Stock shall be deemed to be the
value received by the holders of the Company's Class A
Common Stock for each share of Class A Common Stock
pursuant to the Company's acquisition.
The Company agrees that the shares so converted shall
be deemed issued to the Holder as the record owner of
such shares as of the close of business on the date on
which this Warrant shall have been surrendered as
aforesaid. In the event of any conversion of this
Warrant, certificates for the shares of stock so
converted shall be delivered to the holder hereof
within 15 business days thereafter and, unless this
Warrant has been fully converted or expired, a new
Warrant representing the portion of the shares, if any,
with respect to which this Warrant shall not then have
been converted, shall also be issued to the holder
hereof within such 15-day period.
4. Stock Fully Paid; Reservation of Shares.
All Class A Common Stock which may be issued upon the
exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable, and free from all
United States taxes, liens and charges with respect to the issue
thereof. During the period within which the rights represented
by this Warrant may be exercised, the Company will at all times
have authorized, and reserved for the purpose of the issuance
upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Class A Common Stock to
provide for the exercise of the rights represented by this
Warrant.
5. Adjustment of Purchase Price and Number of Shares.
The exercise price and number of shares purchasable on
exercise of this Warrant shall adjust identically with any
adjustments made pursuant to the 1995 Private Placement Warrants
and the provisions of Section 7 of the 1995 Private Placement
Warrants or other adjustment provisions set forth in the 1995
Private Placement Warrants and the definitions of the different
terms therein are hereby incorporated by reference.
6. Notice of Adjustments.
Whenever any Warrant Price shall be adjusted pursuant
to Section 5 hereof, the Company shall prepare a certificate
signed by its chief financial officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount
of the adjustment, the method by which such adjustment was
calculated, the Warrant Price after giving effect to such
adjustment and the number of shares then purchasable upon
exercise of this Warrant, and shall cause copies of such
certificate to be mailed (by first class mail, postage prepaid)
to the Holder of this Warrant at the address specified in Section
10(c) hereof, or at such other address as may be provided to the
Company in writing by the Holder of this Warrant.
7. Fractional Shares.
No fractional shares of Class A Common Stock will be
issued in conjunction with any exercise hereunder, but in lieu of
such fractional shares the Company shall make a cash payment
therefore on the basis of the Warrant Price then in effect.
8. Compliance with Securities Act; Legends.
The Holder of this Warrant, by acceptance hereof,
agrees that this Warrant and the shares of Class A Common Stock
to be issued on exercise hereof are being acquired for investment
and that it will not offer, sell or otherwise dispose of this
Warrant or any shares of Class A Common Stock to be issued upon
exercise hereof except under circumstances which will not result
in a violation of the Securities Act of 1933, as amended (the
"Act"). This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER
THE ACT AND SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS
NOT REQUIRED AND (2) AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY IS FURNISHED TO THE COMPANY TO THE EFFECT THAT
REGISTRATION UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED."
This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE,
ENCUMBRANCE OR OTHER DISPOSITION (EACH, A "TRANSFER") AND
VOTING OF ANY OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE RESTRICTED BY THE TERMS OF A SHAREHOLDERS'
AGREEMENT AMONG CERTAIN SHAREHOLDERS NAMED THEREIN."
9. Notice of Exercise of Class A Warrants.
Whenever any 1995 Private Placement Warrants shall be
exercised, within 30 days after such exercise the Company shall
notify the Holder (by first class mail, postage prepaid) at the
address specified in Section 10(c) hereof, or at such other
address as may be provided to the Company in writing by the
Holder of this Warrant.
10. Miscellaneous.
(a) No Rights as Shareholder. The Holder of this
Warrant shall not be entitled to vote or receive dividends or be
deemed the Holder of Class A Common Stock or any other securities
of the Company that may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any
of the rights of a shareholder of the Company or any right to
vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock,
change of par value or change of stock to no par value,
consolidation, merger, conveyance or otherwise) or to receive
notice of meetings, or to receive dividends or subscription
rights or otherwise until the Warrant shall have been exercised
and the shares purchasable upon the exercise hereof shall have
become deliverable, as provided herein.
(b) Replacement. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant and, in the case of mutilation, on
surrender and cancellation of this Warrant, the Company, at the
Holder's expense, will execute and deliver, in lieu of this
Warrant, a new Warrant of like tenor.
(c) Notice. Any notice given to either party under
this Warrant shall be in writing, and any notice hereunder shall
be deemed to have been given upon the earlier of delivery thereof
by hand delivery, by courier, or by standard form of
telecommunication or three (3) business days after the mailing
thereof in the U.S. mail if sent registered mail with postage
prepaid, addressed to the Company at its principal executive
offices and to the Holder at its address set forth in the
Company's books and records or at such other address as the
Holder may have provided to the Company in writing.
(d) Governing Law. This Warrant shall be governed and
construed under the laws of the State of California.
[Remainder of page intentionally left blank]
This Warrant is executed as of this 8 day of June, 1999.
AMERIGON INCORPORATED
By: /s/ Lon E. Bell
Name: Lon E. Bell
Title: Chief Executive Officer
EXHIBIT 1
NOTICE OF EXERCISE
TO: AMERIGON INCORPORATED
1. Check Box that Applies:
[ ] The undersigned hereby elects to purchase __________
shares of Class A Common Stock of AMERIGON INCORPORATED
pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price of such
shares in full.
[ ] The undersigned hereby elects to convert the attached
warrant into ________ shares of Class A Common Stock of
AMERIGON INCORPORATED pursuant to the terms of the
attached Warrant.
2. Please issue a certificate or certificates
representing said shares of Class A Common Stock in the name of
the undersigned or in such other name as is specified below:
------------------------------
(Name)
------------------------------
------------------------------
(Address)
3. The undersigned represents that the aforesaid
shares of Class A Common Stock are being acquired for the account
of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling
such shares.
------------------------------
Signature
CONTINGENT COMMON STOCK PURCHASE WARRANT
THIS SECURITY AND ANY SHARES ISSUED UPON EXERCISE OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE
APPLICABLE SECURITY HAS BEEN REGISTERED UNDER THE ACT AND SUCH
LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED AND (2)
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS FURNISHED TO
THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
AMERIGON INCORPORATED
WARRANT TO PURCHASE COMMON STOCK
This certifies that, for value received, Big Beaver
Investments LLC (the "Holder") is entitled to subscribe for and
purchase up to 4428 shares (subject to adjustment from time to
time pursuant to the provisions of Section 5 hereof) of fully
paid and nonassessable Class A Common Stock of Amerigon
Incorporated, a California corporation (the "Company"), at the
price specified in Section 2 hereof, as such price may be
adjusted from time to time pursuant to Section 5 hereof (the
"Warrant Price"), subject to the provisions and upon the terms
and conditions hereinafter set forth.
As used herein, the term "Class A Common Stock" shall
mean the Company's presently authorized Class A Common Stock, no
par value, and any stock into or for which such Common Stock may
hereafter be converted or exchanged.
1. Term of Warrant; Contingent Exercise.
(a) Term. Subject to Section 1(b) hereof, the
purchase right represented by this Warrant is exercisable, in
whole or in part, at any time during a period beginning on June
7, 1999 and ending ninety days after the later of the two
"Warrant Expiration Dates" as defined in the Warrant to Purchase
Class A Common Stock dated December 29, 1995 from the Company to
Sutro & Co. and the Warrant to Purchase Class A Common Stock
dated December 29, 1995 from the Company to Lido Consulting, Inc.
(the "1995 Private Placement Warrants").
(b) Contingent Exercise. The number of shares that
may be purchased pursuant to the exercise of this Warrant is
limited to a number of shares equal to 36.9% multiplied by the
number of shares purchased pursuant to the exercise of the 1995
Private Placement Warrants after the date hereof. To the extent
that this would result in the right to purchase a fractional
number of shares, the number of shares permitted to be purchased
will be rounded down to the lowest whole share; provided,
however, that the number of shares with respect to which this
Warrant shall not then have been exercised will appropriately
reflect such adjustment.
2. Warrant Price.
The Warrant Price is $51.25 per share, subject to
adjustment from time to time pursuant to the provisions of
Section 5 hereof.
3. Method of Exercise or Conversion; Payment; Issuance of
New Warrant.
(a) Exercise. Subject to Section 1 hereof, the
purchase right represented by this Warrant may be exercised by
the Holder, in whole or in part, by the surrender of this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company and by the
payment to the Company, by cashier's check or wire transfer, of
an amount equal to the then applicable Warrant Price per share
multiplied by the number of shares then being purchased. The
Company agrees that the shares so purchased shall be deemed to be
issued to the Holder as the record owner of such shares as of the
close of business on the date on which this Warrant shall have
been surrendered and payment made for such shares as aforesaid.
In the event of any exercise of this Warrant, certificates for
the shares of stock so purchased shall be delivered to the Holder
within 15 business days thereafter and, unless this Warrant has
been fully exercised or expired, a new Warrant representing the
portion of the shares, if any, with respect to which this Warrant
shall not then have been exercised, shall also be issued to the
Holder within such 15 business day period.
(b) Conversion. Subject to Section 1 hereof, the
Holder may convert this Warrant (the "Conversion Right"), in
whole or in part, into the number of shares (less the number of
shares which have been previously exercised or as to which the
Conversion Right has been previously exercised) calculated
pursuant to the following formula by surrendering this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company specifying
the number of shares the rights to purchase which the Holder
desires to convert:
Y (A - B)
---------
X = A
where: X = the number of shares of Class A
Common Stock to be issued to the
Holder;
Y = the number of shares of Class A
Common Stock subject to this Warrant for
which the Conversion Right is being
exercised;
A = the Market Price of the Common
Stock (as defined below) as of the trading
day immediately preceding the date of
exercise of this Warrant; and
B = the Warrant Price
For purposes hereof, the "Market Price of the Common
Stock" shall be the closing price per share of the
Class A Common Stock of the Company on the principal
national securities exchange on which the Class A
Common Stock of the Company is then listed or admitted
to trading or, if not then listed or traded on any such
exchange, on the NASDAQ National Market System, or if
then not listed or traded on such system, the closing
bid price per share on NASDAQ or other over-the-counter
trading market. If at any time such quotations are not
available, the market price of a share of Class A
Common Stock shall be the highest price per share which
the Company could obtain from a willing buyer (not a
current employee or director) for shares of Class A
Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by the
Board of Directors of the Company, unless the Company
shall become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the
surviving party, in which case the market price of a
share of Class A Common Stock shall be deemed to be the
value received by the holders of the Company's Class A
Common Stock for each share of Class A Common Stock
pursuant to the Company's acquisition.
The Company agrees that the shares so converted shall
be deemed issued to the Holder as the record owner of
such shares as of the close of business on the date on
which this Warrant shall have been surrendered as
aforesaid. In the event of any conversion of this
Warrant, certificates for the shares of stock so
converted shall be delivered to the holder hereof
within 15 business days thereafter and, unless this
Warrant has been fully converted or expired, a new
Warrant representing the portion of the shares, if any,
with respect to which this Warrant shall not then have
been converted, shall also be issued to the holder
hereof within such 15-day period.
4. Stock Fully Paid; Reservation of Shares.
All Class A Common Stock which may be issued upon the
exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable, and free from all
United States taxes, liens and charges with respect to the issue
thereof. During the period within which the rights represented
by this Warrant may be exercised, the Company will at all times
have authorized, and reserved for the purpose of the issuance
upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Class A Common Stock to
provide for the exercise of the rights represented by this
Warrant.
5. Adjustment of Purchase Price and Number of Shares.
The exercise price and number of shares purchasable on
exercise of this Warrant shall adjust identically with any
adjustments made pursuant to the 1995 Private Placement Warrants
and the provisions of Section 7 of the 1995 Private Placement
Warrants or other adjustment provisions set forth in the 1995
Private Placement Warrants and the definitions of the different
terms therein are hereby incorporated by reference.
6. Notice of Adjustments.
Whenever any Warrant Price shall be adjusted pursuant
to Section 5 hereof, the Company shall prepare a certificate
signed by its chief financial officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount
of the adjustment, the method by which such adjustment was
calculated, the Warrant Price after giving effect to such
adjustment and the number of shares then purchasable upon
exercise of this Warrant, and shall cause copies of such
certificate to be mailed (by first class mail, postage prepaid)
to the Holder of this Warrant at the address specified in Section
10(c) hereof, or at such other address as may be provided to the
Company in writing by the Holder of this Warrant.
7. Fractional Shares.
No fractional shares of Class A Common Stock will be
issued in conjunction with any exercise hereunder, but in lieu of
such fractional shares the Company shall make a cash payment
therefore on the basis of the Warrant Price then in effect.
8. Compliance with Securities Act; Legends.
The Holder of this Warrant, by acceptance hereof,
agrees that this Warrant and the shares of Class A Common Stock
to be issued on exercise hereof are being acquired for investment
and that it will not offer, sell or otherwise dispose of this
Warrant or any shares of Class A Common Stock to be issued upon
exercise hereof except under circumstances which will not result
in a violation of the Securities Act of 1933, as amended (the
"Act"). This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER
THE ACT AND SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS
NOT REQUIRED AND (2) AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY IS FURNISHED TO THE COMPANY TO THE EFFECT THAT
REGISTRATION UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED."
This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE,
ENCUMBRANCE OR OTHER DISPOSITION (EACH, A "TRANSFER") AND
VOTING OF ANY OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE RESTRICTED BY THE TERMS OF A SHAREHOLDERS'
AGREEMENT AMONG CERTAIN SHAREHOLDERS NAMED THEREIN."
9. Notice of Exercise of Class A Warrants.
Whenever any 1995 Private Placement Warrants shall be
exercised, within 30 days after such exercise the Company shall
notify the Holder (by first class mail, postage prepaid) at the
address specified in Section 10(c) hereof, or at such other
address as may be provided to the Company in writing by the
Holder of this Warrant.
10. Miscellaneous.
(a) No Rights as Shareholder. The Holder of this
Warrant shall not be entitled to vote or receive dividends or be
deemed the Holder of Class A Common Stock or any other securities
of the Company that may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any
of the rights of a shareholder of the Company or any right to
vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock,
change of par value or change of stock to no par value,
consolidation, merger, conveyance or otherwise) or to receive
notice of meetings, or to receive dividends or subscription
rights or otherwise until the Warrant shall have been exercised
and the shares purchasable upon the exercise hereof shall have
become deliverable, as provided herein.
(b) Replacement. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant and, in the case of mutilation, on
surrender and cancellation of this Warrant, the Company, at the
Holder's expense, will execute and deliver, in lieu of this
Warrant, a new Warrant of like tenor.
(c) Notice. Any notice given to either party under
this Warrant shall be in writing, and any notice hereunder shall
be deemed to have been given upon the earlier of delivery thereof
by hand delivery, by courier, or by standard form of
telecommunication or three (3) business days after the mailing
thereof in the U.S. mail if sent registered mail with postage
prepaid, addressed to the Company at its principal executive
offices and to the Holder at its address set forth in the
Company's books and records or at such other address as the
Holder may have provided to the Company in writing.
(d) Governing Law. This Warrant shall be governed and
construed under the laws of the State of California.
[Remainder of page intentionally left blank]
This Warrant is executed as of this 8 day of June, 1999.
AMERIGON INCORPORATED
By: /s/ Lon E. Bell
Name: Lon E. Bell
Title: Chief Executive Officer
EXHIBIT 1
NOTICE OF EXERCISE
TO: AMERIGON INCORPORATED
1. Check Box that Applies:
[ ] The undersigned hereby elects to purchase __________
shares of Class A Common Stock of AMERIGON INCORPORATED
pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price of such
shares in full.
[ ] The undersigned hereby elects to convert the attached
warrant into ________ shares of Class A Common Stock of
AMERIGON INCORPORATED pursuant to the terms of the
attached Warrant.
2. Please issue a certificate or certificates
representing said shares of Class A Common Stock in the name of
the undersigned or in such other name as is specified below:
--------------------------
(Name)
--------------------------
--------------------------
(Address)
3. The undersigned represents that the aforesaid
shares of Class A Common Stock are being acquired for the account
of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling
such shares.
---------------------------
Signature
AMERIGON COMPLETES PRIVATE PLACEMENT OF CONVERTIBLE PREFERRED
SHARES; RAISES $9 MILLION
IRWINDALE, Calif.-June 9, 1999--Amerigon Incorporated
(Nasdaq:ARGNA), announced today that it has completed a private
placement of $9 million of convertible preferred shares with Big
Beaver Investments LLC of Troy, MI and Westar Capital II LLC of
Costa Mesa, CA, both private investment companies. The financing
proposal was initially announced March 30,1999, and received
shareholder approval at Amerigon's Annual Shareholder Meeting at
the Company's Irwindale, CA headquarters on May 26, 1999.
Big Beaver Investments President Oscar (Bud) Marx commented, "We
are pleased to be in a position to assist Amerigon with its
financing. Now that our agreement is finalized and funding is in
place, Amerigon is positioned to transition from a development
stage company to a proprietary technology supplier to the global
automotive industry."
Westar Capital General Partner and Amerigon Board Member John
Clark said "The new financing provides the capital needed to
launch Amerigon's first high tech product, the Climate Control
SeatT, during this year. Additionally, it provides the Company
with the ability to continue the development and field evaluation
of its AmeriGuardT radar speed and distance sensing systems."
Amerigon President, Richard Weisbart said, "This financing
provides us with working capital to support our CCS launch late
this year for a `big three' North American automaker, and our
planned launch next year for a foreign car company. Additionally,
the financing provides us with the capital to continue working
with European, Asian, and other North American automotive
companies and their seat suppliers to introduce the CCS system in
other 2001 and 2002 model year vehicles.
"We are also excited to have the professional insight and advice
of our two key financial investors," Weisbart continued. "Bud is
a leading automotive industry insider who has spent the majority
of his career with Ford Motor Company, and John has extensive
experience with growth companies, leading the Westar private
equity group in the management of equity investments in eleven
companies with collective 1998 revenues in excess of $2 billion.
These two industrialists have committed to help support and guide
Amerigon during this critical growth phase."
Amerigon, an emerging player in the global automotive industry,
develops and markets proprietary products for automotive OEMs.
The Climate Control SeatT (CCST) technology provides active
heating, cooling and dehumidification for seat occupants. CCS
will debut in a "big three" model year 2000 luxury vehicle. The
Company's other products include its AmeriGuardT radar sensor
systems designed to extend the driver's field of view in such
vehicle applications as enhanced parking aids, back-up warning
systems and side object detection.
This release contains forward-looking statements within the
meaning of the "safe harbor" provisions of the Private
Securities Litigation Reform Act of 1995 that involve risks and
uncertainties. Such statements are based on management's current
expectations and are subject to a number of factors and
uncertainties which could cause actual results to differ
materially from those described in the forward-looking
statements, including, without limitation, demand for the
Company's products, uncertainties in the development of high
technology products, risks and delays in obtaining customer
orders, technological change, competition and other risks and
uncertainties that are detailed in the Company's Annual Report on
Form 10-K and other reports filed by it with the Securities and
Exchange Commission.
Contact:
Sitrick And Company, Los Angeles
Tom J. Ekman, 310/788-2850