As filed with the Securities and Exchange Commission on October 29, 2002.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERIGON INCORPORATED
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(Exact name of registrant as specified in its charter)
California 95-4318554
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5462 Irwindale Avenue
Irwindale, California 91706
(Address of principal executive offices)
AMERIGON INCORPORATED 1997 STOCK INCENTIVE PLAN
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(Full title of the plan)
Oscar B. Marx III
Amerigon Incorporated
5462 Irwindale Avenue
Irwindale, California 91706
(626) 815-7400
(Name, address, and telephone number, including area code, of agent for service)
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COPY TO:
John A. Laco, Esq.
O'Melveny & Myers LLP
400 South Hope Street
Los Angeles, California 90071-2889
(213) 430-6000
CALCULATION OF REGISTRATION FEE
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===============================================================================
Title of Amount to be Proposed Proposed Amount of
securities to be registered maximum maximum registration
registered offering price aggregate fee
per unit offering price
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Common Stock, no 500,000 $1.1125(2) $556,250(2) $51.18(2)
par value shares(1)
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(1) This Registration Statement covers, in addition to the number of shares
of Common Stock stated above, options and other rights to purchase or
acquire the shares of Common Stock covered by the Prospectus and,
pursuant to Rule 416(c) under the Securities Act of 1933, as amended
(the "Securities Act"), an additional indeterminate number of shares,
options and rights, which by reason of certain events specified in the
Amerigon Incorporated 1997 Stock Incentive Plan, as amended (the "Plan")
may become subject to the Plan.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in
the aggregate, and the registration fee were calculated based upon the
average of the high and low prices of the Common Stock on October 28,
2002 as reported on the Nasdaq SmallCap Market.
The Exhibit Index for this Registration Statement is at page 4.
PART I
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INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
optionees as specified by Rule 428(b)(1) of the Securities Act. Such documents
need not be filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act. These documents, which
include the statement of availability required by Item 2 of Form S-8, and the
documents incorporated by reference in this Registration Statement pursuant to
Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
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INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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Amerigon Incorporated (the "Registrant") filed Registration
Statements relating to the Plan on Form S-8 with the Commission on January 9,
1998 (Registration No. 333-44007) and May 24, 2001 (Registration No. 333-61632).
The contents of which are incorporated herein by reference.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
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Not applicable.
ITEM 8. EXHIBITS
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See the attached Exhibit Index at page 4.
1
SIGNATURES
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Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irwindale, State of California, on October 28,
2002.
AMERIGON INCORPORATED
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By: /s/ O.B. Marx III
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Oscar B. Marx III
Chief Executive Officer and Director
POWER OF ATTORNEY
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KNOW ALL PERSONS BY THESE PRESENTS, each person whose signature
appears below constitutes and appoints Oscar B. Marx III and Sandra L. Grouf,
his or her true and lawful attorney-in-fact and agent, with full powers of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to the Registration Statement (or any other
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ O.B. Marx III Chief Executive Officer and October 28, 2002
- ------------------------- Director (Principal Executive
Oscar B. Marx III Officer)
/s/ Sandra L. Grouf Chief Financial Officer,
- ------------------------- Treasurer and Secretary October 28, 2002
Sandra L. Grouf (Principal Financial and
Accounting Officer)
/s/ Lon E. Bell Vice Chairman of the Board October 28, 2002
- -------------------------
Lon E. Bell, Ph.D
/s/ Francois Castaing Director October 2, 2002
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Francois J. Castaing
/s/ John W. Clark Director October 28, 2002
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John W. Clark
/s/ Paul Oster Director October 3, 2002
- -------------------------
Paul Oster
2
SIGNATURE TITLE DATE
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/s/ James J. Paulsen Director October 3, 2002
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James J. Paulsen
3
EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.1 Amerigon Incorporated 1997 Stock Incentive Plan (as Amended and Restated
April 30, 2002) (1)
4.2 Form of Employee Combination Incentive/Nonqualified Stock Option Agreement
4.3 Form of Non-Employee Director Nonqualified Stock Option Agreement (1)
5.1 Opinion of Counsel regarding the legality of the common stock to be issued
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Powers of Attorney (included in this Registration Statement on page 2)
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(1) Previously filed and incorporated by reference as Appendix A to the
Company's Definitive Proxy Statement on Schedule 14A filed with the
Commission on April 30, 2002 (file number 000-21810)
4
AMERIGON INCORPORATED
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("Company")
EMPLOYEE COMBINATION INCENTIVE/NONQUALIFIED
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STOCK OPTION AGREEMENT
----------------------
THIS OPTION AGREEMENT is between the Company and the Optionee named below and
evidences the Company's grant to the Optionee of a Combined Incentive/
Nonqualified Stock Option to purchase a number of shares of the Company's
Common Stock. The Option is granted pursuant to and subject to the Company's
1997 Stock Incentive Plan (the "PLAN") and the Terms and Conditions for Stock
Options Granted Under the Plan (the "TERMS"), incorporated herein by this
reference.
OPTIONEE: EXERCISE PRICE
----------------------- PER SHARE: $ 1
NUMBER OF SHARES: 1 --------------
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GRANT DATE: EXPIRES: 2
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VESTING SCHEDULE: The options shall become vested as to 25% of the total number
of shares of common stock subject to each option on the one year anniversary of
the grant date.1,2 The remaining 75% of the total number of shares of common
stock subject to each option shall vest in 36 substantially equal monthly
installments, with the first installment vesting on the one-month anniversary
date of the grant date following the month in which the one year anniversary of
the grant date occurs and each of the 35 remaining installments vesting on the
last day of each of the 35 months thereafter.1,2 The options granted are
intended to be treated as Incentive Stock Options.3
- ------------------
1 Subject to adjustment under Section 5.2 of the Plan.
2 Subject to early termination if the Optionee's employment terminates or in
certain other circumstances. See Sections 3 through 5 of the Terms and Sections
1.6 and 6.2 of the Plan for exceptions and additional details regarding possible
early termination of the Option.
3 The ISO limit is a maximum of $100,000 divided by the applicable exercise
price in any calendar year for this option and any other options intended as
ISOs under any other plan of the company or any parent or subsidiary.
NOTWITHSTANDING THE INTENTION TO TREAT THESE OPTIONS AS ISOS, IF THESE OPTIONS,
WHEN COMBINED WITH ANY OTHER ISO THAT VESTS IN THE APPLICABLE CALENDAR YEAR,
RESULTS IN THE AGGREGATE AMOUNTS VESTING EXCEEDING THE ISO LIMIT, THESE OPTIONS
WILL BE TREATED AS BEING ACQUIRED UPON EXERCISE OF A NONQUALIFIED STOCK OPTION
TO THE EXTENT OF ANY AMOUNT OF SHARES EXCEEDS SUCH LIMIT.
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Optionee accepts the Option and agrees to and acknowledges receipt of a copy of
the Plan and the Terms.
AMERIGON INCORPORATED AGREED AND ACKNOWLEDGED:
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(a California corporation)
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By: (Optionee's Signature)
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Its:
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(Address)
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(City, State, Zip Code)
NOTE: WITH RESPECT TO OPTIONEES WHO ARE ALSO 10% SHAREHOLDERS OF THE COMPANY ON
THE GRANT DATE, THE EXERCISE PRICE OF THE ISO MUST BE AT LEAST 110% OF THE FAIR
MARKET VALUE ON THE GRANT DATE AND THE TERM OF THE OPTION MUST BE NO LONGER THAN
FIVE YEARS. ANY OPTION GRANTED TO SUCH A 10% SHAREHOLDER THAT DOES NOT MEET
THESE REQUIREMENTS WILL BE RENDERED A NONQUALIFIED STOCK OPTION.
1
CONSENT OF SPOUSE
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In consideration of the execution of the foregoing Stock Option Agreement
by the Company, I, the spouse of the employee named above, join with my spouse
in executing this Agreement and agree to be bound by all of the terms and
provisions of this Agreement and of the Plan.
Date:
------------------------- ----------------------------
Signature of Spouse
2
TERMS AND CONDITIONS FOR
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COMBINATION INCENTIVE/NONQUALIFIED STOCK OPTIONS
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GRANTED UNDER THE 1997 STOCK INCENTIVE PLAN
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1. EXERCISABILITY OF OPTION. The Option shall vest and become
exercisable in percentage installments of the aggregate number of shares of
Common Stock of the Company as set forth in the Option Agreement. The Option
may be exercised only to the extent the Option is exercisable and vested, and,
during the Optionee's lifetime, only by the Optionee.
(a) CUMULATIVE EXERCISABILITY. To the extent the Optionee does
not in any year purchase all the shares that the Optionee may then
exercise, the Optionee has the right cumulatively thereafter to purchase
any shares not so purchased until the Option terminates or expires.
(b) NO FRACTIONAL SHARES. Fractional share interests shall be
disregarded, but may be cumulated.
(c) MINIMUM EXERCISE. No fewer than 100 shares may be
purchased at any one time, unless the number purchased is the total
number at the time exercisable under the Option.
2. METHOD OF EXERCISE OF OPTION. To the extent exercisable, the Option
may be exercised by the delivery to the Company of a written notice from the
Optionee stating the number of shares to be purchased pursuant to the Option and
accompanied by payment in the full amount of the purchase price of the shares
and amounts required to satisfy any applicable withholding taxes in one or a
combination of the following methods:
(a) in cash or by electronic funds transfer, or by check
payable to the order of the Company;
(b) by notice and third party payment in such manner as may be
authorized by the Committee; and
(c) by the delivery of shares that have been held by the
Optionee for at least six months, in accordance with Section 2.2(b) of
the Plan, unless otherwise provided by the Committee.
3. CONTINUANCE OF EMPLOYMENT REQUIRED. The vesting schedule requires
continued service through each applicable vesting date as a condition to the
vesting of the applicable installment and rights and benefits under this
Agreement. Partial service, even if substantial, during any vesting period will
not entitle the Optionee to any proportionate vesting or avoid or mitigate a
termination of rights and benefits upon or following a termination of employment
or service as provided in Section 4 below or under the Plan.
4. EFFECT OF TERMINATION OF EMPLOYMENT OR DEATH. If the Optionee's
employment by either the Company or any subsidiary terminates, the Option and
all other rights and benefits under this Agreement terminate except that the
Optionee may, at any time within the following periods after the date of
1
termination, exercise the Option to the extent the Option was exercisable on the
date of termination and has not otherwise expired:
o Total Disability or death of Optionee -- for a period of
12 months.
o Termination by the Company or a subsidiary, for any reason
other than retirement, Total Disability or death of Optionee -- for a
period of 3 months commencing upon the earlier of the date of Optionee's
employment terminates or the date the Optionee receives written notice
that his or her employment is or will be terminated; or
o Retirement (either pursuant to a Company retirement plan,
if any, or pursuant to the approval of the Compensation Committee) --
for a period of 3 months.
Notwithstanding the foregoing post-termination exercise periods, the Option will
qualify as an ISO under Section 422 of the Code only if it is exercised within
the applicable exercise periods for ISOs and meets all other requirements of the
Code for ISOs. In the case of a Total Disability that is not a permanent and
total disability within the meaning of Section 22(e)(3) of the Code, the Option
must be exercised within three months of the termination date in order to
qualify as an "incentive stock option" under Section 422 of the Code. If an
Option is not exercised within the applicable exercise periods or does not meet
such other requirements, the Option will be rendered a Nonqualified Stock
Option.
5. CHANGE IN SUBSIDIARY'S STATUS; LEAVES OF ABSENCE. If the Optionee
is employed by an entity that ceases to be a subsidiary, this event is deemed
for purposes of this Agreement to be a termination of the Optionee's employment
by the Company other than a retirement, Total Disability or death of Optionee.
Absence from work caused by military service, authorized sick leave or other
leave approved in writing by the Company or the Committee shall not be
considered a termination of employment by the Company for purposes of Section 4;
provided that unless reemployment upon the expiration of such leave is
guaranteed by contract or law, such leave is for a period of not more than 90
days.
6. ADDITIONAL ISO PROVISIONS.
(a) ISO VALUE LIMIT. If the aggregate Fair Market Value of
Shares with respect to which ISOs (whether granted under this Option or
otherwise) first become exercisable by the Participant in any calendar
year exceeds $100,000 as measured on the applicable Grant Dates, the
limitations of Section 2.3 of the Plan shall apply and to such extent
this Option will be rendered a Nonqualified Stock Option.
(b) NOTICE OF SALE. The Participant agrees to notify the
Corporation of any sale or other disposition of any Shares (within 30
days of such disposition) if such sale or disposition of any Shares
occurs within two years after the Grant Date or within one year after
the date of exercise.
2
(c) TRANSFERABILITY. In accordance with Section 1.8 of the
Plan and the Code, the Option is not transferable by the Optionee other
than by will or the laws of descent and distribution, and is exercisable
during the Optionee's lifetime only by the Optionee.
(d) TAX WITHHOLDING. If any portion of the Option is
rendered a Nonqualified Stock Option in accordance with the terms
hereof, the Participant shall pay or make provision for the payment of
any applicable withholding taxes upon exercise of the Option as provided
in Section 5.5 of the Plan.
7. OPTIONEE NOT A STOCKHOLDER. Neither the Optionee nor any other
person entitled to exercise the Option shall have any of the rights or
privileges of a stockholder of the Company as to any shares of Common Stock
until the issuance and delivery to him or her of a certificate evidencing the
shares registered in his or her name. No adjustment will be made for dividends
or other rights as to a stockholder for which a record date is prior to such
date of delivery.
8. NO EMPLOYMENT COMMITMENT BY COMPANY. Nothing contained in this
Option Agreement or the Plan constitutes an employment commitment by the
Company, affects the Optionee's status as an employee at will who is subject to
termination without cause, confers upon the Optionee any right to remain
employed by the Company or any subsidiary, interferes in any way with the right
of the company or any subsidiary at any time to terminate such employment, or
affects the right of the Company or any subsidiary to increase or decrease the
Optionee's other compensation.
9. NOTICES. Any notice to be given shall be in writing and addressed to
the Company at its principal office, to the attention of the Secretary, and to
the Optionee at his or her last address of record, or at such other address as
either party may hereafter designate in writing to the other for purposes of
notices in respect of the Option.
10. EFFECT OF AWARD AGREEMENT. The Option Agreement shall be binding
upon and inure to the benefit of any successor or successors of the Company,
except to the extent the Committee determines otherwise.
11. CHOICE OF LAW. The constructive interpretation, performance and
enforcement of the Option Agreement and the Option shall be governed by the
laws of the State of California.
12. DEFINED TERMS. Capitalized terms used herein and not otherwise
defined herein shall have the meaning assigned by the Plan.
13. PLAN. The Option and all rights of Optionee thereunder are subject
to, and the Optionee agrees to be bound by, all of the terms and conditions of
the provisions of the Plan. Unless otherwise expressly provided in these Terms
and Conditions, provisions of the Plan that confer discretionary authority on
the Committee do not (and shall not be deemed to) create any additional rights
in the Optionee not expressly set forth in the Optionee's Option Agreement or in
a written amendment thereto. If there is any conflict or inconsistency between
the terms and conditions of this Option Agreement and of the Plan, the terms and
conditions of the Plan shall govern. The Participant acknowledges receipt of a
complete copy of the Plan and agrees to be bound by its terms.
3
O'MELVENY & MYERS LLP
---------------------
CENTURY CITY 400 SOUTH HOPE STREET TYSONS CORNER
IRVINE SPECTRUM LOS ANGELES, CALIFORNIA 90071-2899 WASHINGTON, D.C.
MENLO PARK TELEPHONE (213) 430-6000 HONG KONG
NEWPORT BEACH FACSIMILE (213) 430-6407 LONDON
NEW YORK INTERNET: WWW.OMM.COM SHANGHAI
SAN FRANCISCO TOKYO
OUR FILE NUMBER
020,727-999
October 28, 2002
Amerigon Incorporated
5462 Irwindale Avenue
Irwindale, CA 91706
RE: REGISTRATION OF SECURITIES OF AMERIGON INCORPORATED
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Ladies and Gentlemen:
At your request, we have examined the Registration Statement (the
"Registration Statement") on Form S-8 of Amerigon Incorporated, a California
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933 of 500,000 shares of Common Stock of the Company, no par
value per share (the "Shares"), to be issued pursuant to the Amerigon
Incorporated 1997 Stock Incentive Plan, as amended and restated (the "Plan").
Subject to certain proposed additional proceedings being taken as
contemplated by the Plan and the Registration Statement prior to the issuance
and sale of the Shares, we are of the opinion that the Shares will be duly
authorized by all necessary corporate action on the part of the Company and,
upon payment for and delivery of the Shares as contemplated by the Plan and the
Registration Statement and the countersigning of any certificates representing
the Shares by a duly authorized signatory of the registrar for the Company's
Common Stock, the Shares will be validly issued, fully paid and non-assessable.
We consent to your filing of this opinion as an exhibit to the
Registration Statement.
Respectfully submitted,
/s/ O'MELVENY & MYERS LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 pertaining to the Amerigon Incorporated 1997 Stock
Incentive Plan of our report dated March 20, 2002 relating to the financial
statements and financial statement schedule of Amerigon Incorporated, which
appears in Amerigon Incorporated's Annual Report on Form 10-K for the year
ended December 31, 2001.
/s/ PricewaterhouseCoopers LLP
Orange County, California
September 26, 2002