Exhibit 4.9
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
EXEMPTION FROM REGISTRATION UNDER THE FOREGOING LAWS.
SUBJECT TO THE PROVISIONS OF SECTION 10 HEREOF, THIS WARRANT SHALL BE VOID
AFTER 5:00 P.M. EASTERN TIME ON FEBRUARY 25, 2007 (the "EXPIRATION DATE").
No. 2002 RC-1
AMERIGON INCORPORATED
WARRANT TO PURCHASE 550,005 SHARES OF
COMMON STOCK, NO PAR VALUE
For VALUE RECEIVED, Xxxx Capital Partners, LLC ("Warrantholder"), is
entitled to purchase, subject to the provisions of this Warrant, from Amerigon
Incorporated, a California corporation ("Company"), at any time not later than
5:00 P.M., Eastern time, on the Expiration Date, at an exercise price per share
equal to $2.00 (the exercise price in effect being herein called the "Warrant
Price"), 550,005 shares ("Warrant Shares") of the Company's Common Stock, no par
value ("Common Stock"). The number of Warrant Shares purchasable upon exercise
of this Warrant and the Warrant Price shall be subject to adjustment from time
to time as described herein.
Section 1. Registration. The Company shall maintain books for the transfer
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and registration of the Warrant. Upon the initial issuance of this Warrant, the
Company shall issue and register the Warrant in the name of the Warrantholder.
Section 2. Transfers. As provided herein, this Warrant may be transferred
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only pursuant to a registration statement filed under the Securities Act of
1933, as amended ("Securities Act"), or an exemption from such registration.
Subject to such restrictions, the Company shall transfer this Warrant from time
to time upon the books to be maintained by the Company for that purpose, upon
surrender thereof for transfer properly endorsed or accompanied by appropriate
instructions for transfer and such other documents as may be reasonably required
by the Company, including, if required by the Company, an opinion of its counsel
to the effect that such transfer is exempt from the registration requirements of
the Securities Act of 1933, to establish that such transfer is being made in
accordance with the terms hereof, and a new Warrant shall be issued to the
transferee and the surrendered Warrant shall be canceled by the Company.
Section 3. Exercise of Warrant. Subject to the provisions hereof, the
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Warrantholder may exercise this Warrant in whole or in part at any time upon
surrender of the Warrant, together with delivery of the duly executed Warrant
exercise form attached hereto as Appendix A (the "Exercise Agreement") and
payment by cash, certified check or wire transfer of funds for the aggregate
Warrant Price for that number of Warrant Shares then being purchased, to the
Company during normal business hours on any business day at the Company's
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the holder hereof). The Warrant Shares so purchased
shall be deemed to be issued to the holder hereof or such holder's designee, as
the record owner of such shares, as of the close of business on the date on
which this Warrant shall have been surrendered (or evidence of loss, theft or
destruction thereof and security or indemnity satisfactory to the Company), the
Warrant Price shall have been paid and the completed Exercise Agreement shall
have been delivered. Certificates for the Warrant Shares so purchased,
representing the aggregate number of shares specified in the Exercise Agreement,
shall be delivered to the holder hereof within a reasonable time, not exceeding
three (3) business days, after this Warrant shall have been so exercised. The
certificates so delivered shall be in such denominations as may be requested by
the holder hereof and shall be registered in the name of such holder or such
other name as shall be designated by such holder. If this Warrant shall have
been exercised only in part, then, unless this Warrant has expired, the Company
shall, at its expense, at the time of delivery of such certificates, deliver to
the holder a new Warrant representing the number of shares with respect to which
this Warrant shall not then have been exercised. As used herein, "business day"
means a day, other than a Saturday or Sunday, on which banks in New York City
are open for the general transaction of business. As a condition to each
exercise hereof, the Warrantholder shall represent and warrant as true and
correct that the securities to be received upon exercise are being acquired for
the Warrantholder's own account and not with a view to the resale or
distribution of any part thereof in violation of the Securities Act, that the
Warrantholder can bear the economic risk and complete loss of its investment and
is knowledgeable and experienced in financial or business matters such that it
is capable of evaluating the merits and risks of its investment, and that the
Warrantholder is an "accredited investor" as defined in Rule 501(a) of
Regulation D, as amended, under the Securities Act.
Section 4. Compliance with the Securities Act of 1933. The Company may
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cause the legend set forth on the first page of this Warrant to be set forth on
each Warrant or similar legend on any security issued or issuable upon exercise
of this Warrant, unless counsel for the Company is of the opinion as to any such
security that such legend is unnecessary.
Section 5. Payment of Taxes. The Company will pay any documentary stamp
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taxes attributable to the initial issuance of Warrant Shares issuable upon the
exercise of the Warrant; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificates for Warrant Shares in a
name other than that of the registered holder of this Warrant in respect of
which such shares are issued, and in such case, the Company shall not be
required to issue or deliver any certificate for Warrant Shares or any Warrant
until the person requesting the same has paid to the Company the amount of such
tax or has established to the Company's reasonable
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satisfaction that such tax has been paid. The holder shall be responsible for
income and gift taxes due under federal, state or other law, if any such tax is
due.
Section 6. Mutilated or Missing Warrants. In case this Warrant shall be
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mutilated, lost, stolen, or destroyed, the Company shall issue in exchange and
substitution of and upon cancellation of the mutilated Warrant, or in lieu of
and substitution for the Warrant lost, stolen or destroyed, a new Warrant of
like tenor and for the purchase of a like number of Warrant Shares, but only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect thereto, if
requested by the Company.
Section 7. Reservation of Common Stock. The Company hereby represents and
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warrants that there have been reserved, and the Company shall at all applicable
times keep reserved until issued (if necessary) as contemplated by this Section
7, out of the authorized and unissued shares of Common Stock, sufficient shares
to provide for the exercise of the rights of purchase represented by this
Warrant. The Company agrees that all Warrant Shares issued upon exercise of the
Warrant shall be, at the time of delivery of the certificates for such Warrant
Shares upon the due exercise of this Warrant, duly authorized, validly issued,
fully paid and non-assessable shares of Common Stock of the Company.
Section 8. Adjustments. Subject and pursuant to the provisions of this
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Section 8, the Warrant Price and number of Warrant Shares subject to this
Warrant shall be subject to adjustment from time to time as set forth
hereinafter.
(a) If the Company shall, at any time or from time to time while this
Warrant is outstanding, pay a dividend or make a distribution on its Common
Stock in shares of Common Stock, subdivide its outstanding shares of Common
Stock into a greater number of shares or combine its outstanding shares of
Common Stock into a smaller number of shares or issue by reclassification of its
outstanding shares of Common Stock any shares of its capital stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing corporation), then the number of Warrant Shares
purchasable upon exercise of the Warrant and the Warrant Price in effect
immediately prior to the date upon which such change shall become effective,
shall be adjusted by the Company so that the Warrantholder thereafter exercising
the Warrant shall be entitled to receive the number of shares of Common Stock or
other capital stock which the Warrantholder would have received if the Warrant
had been exercised immediately prior to such event upon payment of a Warrant
Price that has been adjusted to reflect a fair allocation of the economics of
such event to the Warrantholder. Such adjustments shall be made successively
whenever any event listed above shall occur.
(b) If any capital reorganization, reclassification of the capital
stock of the Company, consolidation or merger of the Company with another
corporation in which the Company is not the survivor, or sale, transfer or other
disposition of all or substantially all of the Company's assets to another
corporation shall be effected, then, as a condition of such reorganization,
reclassification, consolidation, merger, sale, transfer or other disposition,
lawful and adequate provision shall be made whereby each Warrantholder shall
thereafter have the right
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to purchase and receive upon the basis and upon the terms and conditions herein
specified and in lieu of the Warrant Shares immediately theretofore issuable
upon exercise of the Warrant, such shares of stock, securities or assets
(including cash) as would have been issuable or payable with respect to or in
exchange for a number of Warrant Shares equal to the number of Warrant Shares
immediately theretofore issuable upon exercise of the Warrant, had such
reorganization, reclassification, consolidation, merger, sale, transfer or other
disposition not taken place, and in any such case appropriate provision shall be
made with respect to the rights and interests of each Warrantholder to the end
that the provisions hereof (including, without limitation, provision for
adjustment of the Warrant Price) shall thereafter be applicable, as nearly
equivalent as may be practicable in relation to any shares of stock, securities
or assets (including cash) thereafter deliverable upon the exercise thereof. The
Company shall not effect any such consolidation, merger, sale, transfer or other
disposition unless prior to or simultaneously with the consummation thereof the
successor corporation (if other than the Company) resulting from such
consolidation or merger, or the corporation purchasing or otherwise acquiring
such assets or other appropriate corporation or entity shall assume the
obligation to deliver to the holder of the Warrant such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holder may be entitled to purchase, and the other obligations under this
Warrant. The provisions of this paragraph (b) shall similarly apply to
successive reorganizations, reclassifications, consolidations, mergers, sales,
transfers or other dispositions.
(c) In case the Company shall fix a payment date for the making of a
distribution to all holders of Common Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing corporation) of evidences of indebtedness or assets (other than (i)
cash dividends or cash distributions payable out of consolidated earnings or
earned surplus, (ii) dividends or distributions referred to in Section 8(a), or
(iii) distributions of the assets or equity interests of BSST LLC, a Delaware
limited liability company (or its successor in interest)), or subscription
rights or warrants, the Warrant Price to be in effect after such payment date
shall be determined by multiplying the Warrant Price in effect immediately prior
to such payment date by a fraction, the numerator of which shall be the total
number of shares of Common Stock outstanding multiplied by the Market Price (as
defined below) per share of Common Stock immediately prior to such payment date,
less the fair market value (as determined by the Company's Board of Directors in
good faith) of said assets or evidences of indebtedness so distributed, or of
such subscription rights or warrants, and the denominator of which shall be the
total number of shares of Common Stock outstanding multiplied by such Market
Price per share of Common Stock immediately prior to such payment date. "Market
Price" as of a particular date (the "Valuation Date") shall mean the following:
(a) if the Common Stock is then listed on a national stock exchange, the closing
sale price of one share of Common Stock on such exchange on the last trading day
prior to the Valuation Date; (b) if the Common Stock is then quoted on the
NASDAQ Stock Market, Inc. National Market System or SmallCap Market System
("Nasdaq"), the closing sale price of one share of Common Stock on Nasdaq on the
last trading day prior to the Valuation Date or, if no such closing sale price
is available, the average of the high bid and the low asked price quoted on
Nasdaq on the last trading day prior to the Valuation Date; or (c) if the Common
Stock is not then listed on a national stock exchange or quoted on Nasdaq, the
Fair Market Value of one share of Common Stock as of the Valuation Date, shall
be determined in good faith by the Board of Directors of the
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Company and the Warrantholder. The Board of Directors of the Company shall
respond promptly, in writing, to an inquiry by the Warrantholder prior to the
exercise hereunder as to the Market Value of a share of Common Stock as
determined by the Board of Directors of the Company. In the event that the Board
of Directors of the Company and the Warrantholder are unable to agree upon the
Market Value in respect of subpart (c) hereof, the Company and the Warrantholder
shall jointly select an appraiser, who is experienced in such matters. The
decision of such appraiser shall be final and conclusive, and the cost of such
appraiser shall be borne evenly by the Company and the Warrantholder. Such
adjustment shall be made successively whenever such a payment date is fixed.
(d) For the term of this Warrant, in addition to the provisions
contained above, the Warrant Price shall be subject to adjustment as provided
below. An adjustment to the Warrant Price shall become effective immediately
after the payment date in the case of each dividend or distribution and
immediately after the effective date of each other event which requires an
adjustment.
(e) In the event that, as a result of an adjustment made pursuant to
this Section 8, the holder of this Warrant shall become entitled to receive any
shares of capital stock of the Company other than shares of Common Stock, the
number of such other shares so receivable upon exercise of this Warrant shall be
subject thereafter to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Warrant
Shares contained in this Warrant.
(f) Except as provided in subsection (g) hereof, if and whenever the
Company shall issue or sell, or is, in accordance with any of subsections (f)(l)
through (f)(6) hereof, deemed to have issued or sold, any shares of Common Stock
for a consideration per share less than the Warrant Price in effect immediately
prior to the time of such issue or sale, then and in each such case (a "Trigger
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Issuance") the then-existing Warrant Price, shall be reduced, as of the close of
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business on the effective date of the Trigger Issuance, to a price determined as
follows:
Adjusted Warrant Price = (A x B) + D
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A+C
where
"A" equals the number of shares of Common Stock outstanding,
including Additional Shares (as defined below) deemed to be issued hereunder
(whether deemed to be issued prior to, on or after the date hereof), immediately
preceding such Trigger Issuance;
"B" equals the Warrant Price in effect immediately preceding
such Trigger Issuance;
"C" equals the number of Additional Shares of Common Stock
issued or deemed issued hereunder as a result of the Trigger Issuance; and
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"D" equals the aggregate consideration, if any, received or
deemed to be received by the Company upon such Trigger Issuance;
provided, however, that in no event shall the Warrant Price after
giving effect to such Trigger Issuance be greater than the Warrant Price in
effect prior to such Trigger Issuance.
For purposes of this subsection (f), "Additional Shares of Common
Stock" shall mean all shares of Common Stock issued by the Company or deemed to
be issued pursuant to this subsection (f), other than Excluded Issuances (as
defined in subsection (g) hereof).
For purposes of this subsection (f), the following subsections (f)(l)
to (f)(6) shall also be applicable (subject, in each such case, to the
provisions of subsection (g) hereof) and to each other subsection contained in
this subsection (f):
(f)(1) Issuance of Rights or Options. In case at any time the
Company shall in any manner grant (directly and not by assumption in a
merger or otherwise) any warrants or other rights to subscribe for or
to purchase, or any options for the purchase of, Common Stock or any
stock or security convertible into or exchangeable for Common Stock
(such warrants, rights or options being called "Options" and such
convertible or exchangeable stock or securities being called
"Convertible Securities") whether or not such Options or the right to
convert or exchange any such Convertible Securities are immediately
exercisable, and the price per share for which Common Stock is
issuable upon the exercise of such Options or upon the conversion or
exchange of such Convertible Securities (determined by dividing (i)
the sum (which sum shall constitute the applicable consideration) of
(x) the total amount, if any, received or receivable by the Company as
consideration for the granting of such Options, plus (y) the aggregate
amount of additional consideration payable to the Company upon the
exercise of all such Options, plus (z), in the case of such Options
which relate to Convertible Securities, the aggregate amount of
additional consideration, if any, payable upon the issue or sale of
such Convertible Securities and upon the conversion or exchange
thereof, by (ii) the total maximum number of shares of Common Stock
issuable upon the exercise of such Options or upon the conversion or
exchange of all such Convertible Securities issuable upon the exercise
of such Options) shall be less than the Warrant Price in effect
immediately prior to the time of the granting of such Options, then
the total number of shares of Common Stock issuable upon the exercise
of such Options or upon conversion or exchange of the total amount of
such Convertible Securities issuable upon the exercise of such Options
shall be deemed to have been issued for such price per share as of the
date of granting of such Options or the issuance of such Convertible
Securities and thereafter shall be deemed to be outstanding for
purposes of adjusting the Warrant Price. Except as otherwise provided
in subsection 8(f)(3), no adjustment of the Warrant Price shall be
made upon the actual issue of such Common Stock
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or of such Convertible Securities upon exercise of such Options or
upon the actual issue of such Common Stock upon conversion or exchange
of such Convertible Securities.
(f)(2) Issuance of Convertible Securities. In case the Company
shall in any manner issue (directly and not by assumption in a merger
or otherwise) or sell any Convertible Securities, whether or not the
rights to exchange or convert any such Convertible Securities are
immediately exercisable, and the price per share for which Common
Stock is issuable upon such conversion or exchange (determined by
dividing (i) the sum (which sum shall constitute the applicable
consideration) of (x) the total amount received or receivable by the
Company as consideration for the issue or sale of such Convertible
Securities, plus (y) the aggregate amount of additional consideration,
if any, payable to the Company upon the conversion or exchange
thereof, by (ii) the total number of shares of Common Stock issuable
upon the conversion or exchange of all such Convertible Securities)
shall be less than the Warrant Price in effect immediately prior to
the time of such issue or sale, then the total maximum number of
shares of Common Stock issuable upon conversion or exchange of all
such Convertible Securities shall be deemed to have been issued for
such price per share as of the date of the issue or sale of such
Convertible Securities and thereafter shall be deemed to be
outstanding for purposes of adjusting the Warrant Price, provided that
(a) except as otherwise provided in subsection 8(f)(3), no adjustment
of the Warrant Price shall be made upon the actual issuance of such
Common Stock upon conversion or exchange of such Convertible
Securities and (b) no further adjustment of the Warrant Price shall be
made by reason of the issue or sale of Convertible Securities upon
exercise of any Options to purchase any such Convertible Securities
for which adjustments of the Warrant Price have been made pursuant to
the other provisions of subsection 8(f).
(f)(3) Change in Option Price or Conversion Rate. Upon the
happening of any of the following events, namely, if the purchase
price provided for in any Option referred to in subsection 8(f)(l)
hereof, the additional consideration, if any, payable upon the
conversion or exchange of any Convertible Securities referred to in
subsections 8(f)(l) or 8(f)(2), or the rate at which Convertible
Securities referred to in subsections 8(f)(l) or 8(f)(2) are
convertible into or exchangeable for Common Stock shall change at any
time (including, but not limited to, changes under or by reason of
provisions designed to protect against dilution), the Warrant Price in
effect at the time of such event shall forthwith be readjusted to the
Warrant Price which would have been in effect at such time had such
Options or Convertible Securities still outstanding provided for such
changed purchase price, additional consideration or conversion rate,
as the case may be, at the time initially granted, issued or sold. On
the termination of any Option for which any adjustment was made
pursuant to this subsection 8(f) or any right to convert or exchange
Convertible Securities for which any adjustment was made pursuant to
this subsection 8(f) (including without limitation upon the redemption
or purchase for consideration of Convertible Securities by the
Company), the Warrant Price
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then in effect hereunder shall forthwith be changed to the Warrant
Price which would have been in effect at the time of such termination
had such Option or Convertible Securities, to the extent outstanding
immediately prior to such termination, never been issued.
(f)(4) Consideration for Stock. In case any shares of Common
Stock, Options or Convertible Securities shall be issued or sold for
cash, the consideration received therefor shall be deemed to be the
cash amount received by the Company therefor, without deduction
therefrom of any expenses incurred or any underwriting commissions or
concessions paid or allowed by the Company in connection therewith. In
case any shares of Common Stock, Options or Convertible Securities
shall be issued or sold for a consideration other than cash, the
amount of the consideration other than cash received by the Company
shall be deemed to be the fair value of such consideration as
determined in good faith by the Board of Directors of the Company,
after deduction of any expenses incurred or any underwriting
commissions or concessions paid or allowed by the Company in
connection therewith. In case any Options shall be issued in
connection with the issue and sale of other securities of the Company,
together comprising one integral transaction in which no specific
consideration is allocated to such Options by the parties thereto,
such Options shall be deemed to have been issued for such
consideration as determined in good faith by the Board of Directors of
the Company.
(f)(5) Record Date. In case the Company shall take a record of
the holders of its Common Stock for the purpose of entitling them (i)
to receive a dividend or other distribution payable in Common Stock,
Options or Convertible Securities or (ii) to subscribe for or purchase
Common Stock, Options or Convertible Securities, then such record date
shall be deemed to be the date of the issue or sale of the shares of
Common Stock deemed to have been issued or sold upon the declaration
of such dividend or the making of such other distribution or the date
of the granting of such right of subscription or purchase, as the case
may be.
(f)(6) Treasury Shares. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held
by or for the account of the Company or any of its wholly-owned
subsidiaries, and the disposition of any such shares (other than the
cancellation or retirement thereof) shall be considered an issue or
sale of Common Stock for the purpose of this subsection (f).
(g) Anything herein to the contrary notwithstanding, the Company shall
not be required to make any adjustment of the Warrant Price in the case of the
issuance of (A) capital stock, Options or Convertible Securities issued to
directors, officers, employees or consultants of the Company in connection with
their service as directors of the Company, their employment by the Company or
their retention as consultants by the Company pursuant to an equity compensation
program approved by the Board of Directors or the shareholders of the Company,
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(B) shares of Common Stock upon the conversion or exercise of Options or
Convertible Securities issued prior to the date hereof, (C) shares of Common
Stock and Convertible Securities issued to Big Beaver Investments, LLC pursuant
to the terms of the Exchange Agreement, dated February 12, 2002, and shares of
Common Stock issuable upon the exercise or conversion of such Convertible
Securities in accordance with their terms, (D) Convertible Securities issued to
Xxxx Capital in payment of the placement agency fees as disclosed in the
Purchase Agreement; and shares of Common Stock issuable upon the exercise or
conversion of such Convertible Securities in accordance with their terms, and
(E) shares of Common Stock issued or issuable by reason of a dividend, stock
split or other distribution on the Common Stock (but only to the extent that
such a dividend, split or distribution results in an adjustment in the Warrant
Price pursuant to the other provisions of this Warrant) (collectively, "Excluded
Issuances").
Section 9. Fractional Interest. The Company shall not be required to issue
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fractions of Warrant Shares upon the exercise of the Warrant. If any fractional
share of Common Stock would, except for the provisions of the first sentence of
this Section 9, be delivered upon such exercise, the Company, in lieu of
delivering such fractional share, shall pay to the exercising holder of this
Warrant an amount in cash equal to the Fair Market Value of such fractional
share of Common Stock on the date of exercise. As used in this Warrant, "Fair
Market Value" of a share of Common Stock as of a particular date (the "Valuation
Date") shall mean the following: (a) if the Common Stock is then listed on a
national stock exchange, the closing sale price of one share of Common Stock on
such exchange on the last trading day prior to the Valuation Date; (b) if the
Common Stock is then quoted on Nasdaq, the closing sale price of one share of
Common Stock on Nasdaq on the last trading day prior to the Valuation Date or,
if no such closing sale price is available, the average of the high bid and the
low sales price quoted on Nasdaq on the last trading day prior to the Valuation
Date; or (c) if the Common Stock is not then listed on a national stock exchange
or quoted on Nasdaq, the Fair Market Value of one share of Common Stock as of
the Valuation Date, shall be determined in good faith by the Board of Directors
of the Company.
Section 10. [Intentionally Omitted].
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Section 11. Benefits. Nothing in this Warrant shall be construed to give
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any person, firm or corporation (other than the Company and the Warrantholder)
any legal or equitable right, remedy or claim, it being agreed that this Warrant
shall be for the sole and exclusive benefit of the Company and the
Warrantholder.
Section 12. Notices to Warrantholder. Upon the happening of any event
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requiring an adjustment of the Warrant Price, the Company shall promptly give
written notice thereof to the Warrantholder at the address appearing in the
records of the Company, stating the adjusted Warrant Price and the adjusted
number of Warrant Shares resulting from such event and setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Failure to give such notice to the Warrantholder or any
defect therein shall not affect the legality or validity of the subject
adjustment.
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Section 13. Identity of Transfer Agent. The Transfer Agent for the Common
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Stock is US Stock Transfer. Upon the appointment of any subsequent transfer
agent for the Common Stock or other shares of the Company's capital stock
issuable upon the exercise of the rights of purchase represented by the Warrant,
the Company will mail to the Warrantholder a statement setting forth the name
and address of such transfer agent.
Section 14. Notices. Unless otherwise provided, any notice required or
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permitted under this Warrant shall be given in writing and shall be deemed
effectively given as hereinafter described (i) if given by personal delivery,
then such notice shall be deemed given upon such delivery, (ii) if given by
telex or telecopier, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice
shall be deemed given upon the earlier of (A) receipt of such notice by the
recipient or (B) three days after such notice is deposited in first class mail,
postage prepaid, and (iv) if given by an internationally recognized overnight
air courier, then such notice shall be deemed given one day after delivery to
such carrier. All notices shall be addressed as follows: (i) if to the
Warrantholder, at its address as set forth in the Company's books and records
and, if to the Company, at the address as follows, or at such other address as
the Warrantholder or the Company may designate by ten days' advance written
notice to the other:
If to the Company:
Amerigon Incorporated
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Fax: 000.000.0000
With a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxx
Fax: 000.000.0000
Section 15. Registration Rights. The initial holder of this Warrant is
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entitled to the benefit of certain registration rights with respect to the
shares of Common Stock issuable upon the exercise of this Warrant as provided in
the Appendix B hereto, and any subsequent holder hereof may be entitled to such
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rights.
Section 16. Successors. All the covenants and provisions hereof by or for
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the benefit of the Warrantholder shall bind and inure to the benefit of its
respective successors and assigns hereunder.
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Section 17. Governing Law. This Warrant shall be governed by, and construed
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in accordance with, the internal laws of the State of New York, without
reference to the choice of law provisions thereof. The Company and, by accepting
this Warrant, the Warrantholder, each irrevocably submits to the exclusive
jurisdiction of the courts of the State of New York located in New York County
and the United States District Court for the Southern District of New York for
the purpose of any suit, action, proceeding or judgment relating to or arising
out of this Warrant and the transactions contemplated hereby. Service of process
in connection with any such suit, action or proceeding may be served on each
party hereto anywhere in the world by the same methods as are specified for the
giving of notices under this Warrant. The Company and, by accepting this
Warrant, the Warrantholder, each irrevocably consents to the jurisdiction of any
such court in any such suit, action or proceeding and to the laying of venue in
such court. The Company and, by accepting this Warrant, the Warrantholder, each
irrevocably waives any objection to the laying of venue of any such suit, action
or proceeding brought in such courts and irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
Section 18. Call Provision. Notwithstanding any other provision contained
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herein to the contrary, in the event that the closing bid price of a share of
Common Stock as traded on the Nasdaq (or such other exchange or stock market on
which the Common Stock may then be listed or quoted) exceeds $4.00
(appropriately adjusted for any stock split, reverse stock split, stock dividend
or other reclassification or combination of the Common Stock occurring after the
date hereof) for twenty (20) consecutive trading sessions and all of the shares
of Common Stock issuable hereunder either (i) are registered pursuant to an
effective registration statement under the Securities Act which is available for
sales of such shares of Common Stock or (ii) no longer constitute Registrable
Securities (as defined in the Appendix B), the Company, upon thirty (30) days
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prior written notice (the "Notice Period") following such twenty (20) day
period, to the Warrantholder, may call this Warrant, in whole but not in part,
at a redemption price equal to $0.01 per share of Common Stock then purchasable
pursuant to this Warrant. Notwithstanding any such notice by the Company, the
Warrantholder shall have the right to exercise this Warrant prior to the end of
the Notice Period.
Section 19. No Rights as Stockholder. Prior to the exercise of this
------------------------
Warrant, the Warrantholder shall not have or exercise any rights as a
stockholder of the Company by virtue of its ownership of this Warrant.
Section 20. Amendment; Waiver. Any term of this Warrant may be amended or
-----------------
waived (including the adjustment provisions included in Section 8 of this
Warrant) upon the written consent of the Company and the Warrantholder.
Section 21. Section Headings. The section heading in this Warrant are for
----------------
the convenience of the Company and the Warrantholder and in no way alter,
modify, amend, limit or restrict the provisions hereof.
-11-
IN WITNESS WHEREOF, the Company has caused this Warrant to be duly
executed, as of the 25th day of February, 2002.
AMERIGON INCORPORATED
By:
---------------------------
Name:
Title:
-12-
APPENDIX A
AMERIGON INCORPORATED
WARRANT EXERCISE FORM
To: Amerigon Incorporated
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant ("Warrant") for, and to purchase thereunder by
the payment of the Warrant Price and surrender of the Warrant,
---------------
shares of Common Stock ("Warrant Shares") provided for therein, and requests
that certificates for the Warrant Shares be issued as follows:
--------------------------------
Name
--------------------------------
Address
--------------------------------
--------------------------------
Federal Tax ID or Social Security No.
and delivered by (euro) certified mail to the above address, or
(euro) electronically (provide DWAC
Instructions: ), or
-------------------
(euro) other (specify:
).
--------------------------------------------------------------
and, if the number of Warrant Shares shall not be all the Warrant Shares
purchasable upon exercise of the Warrant, that a new Warrant for the balance of
the Warrant Shares purchasable upon exercise of this Warrant be registered in
the name of the undersigned Warrantholder or the undersigned's Assignee as below
indicated and delivered to the address stated below.
Dated: ,
------------------- ----
Note: The signature must correspond with
Signature:
------------------------------
the name of the registered holder as written
on the first page of the Warrant in every
particular, without alteration or enlargement ---------------------------
or any change whatever, unless the Warrant Name (please print)
has been assigned.
---------------------------
---------------------------
Address
---------------------------
Federal Identification or
Social Security No.
Assignee:
---------------------------
---------------------------
---------------------------
14
APPENDIX B
AMERIGON INCORPORATED
REGISTRATION RIGHTS
1. Demand Registration Rights.
--------------------------
(a) Registration. Prior to the expiration of this Warrant, the holders
------------
of a majority of the Warrants shall have the right, exercisable at any time by
written notice (the "Demand Notice") to the Company, to request the Company to
file a registration statement, on such form as shall be appropriate under the
Securities Act covering the resale of the Common Stock issuable pursuant to this
Warrant ( the "Registrable Securities"), and to use commercially reasonable
efforts to qualify the Registrable Securities for sale under the blue sky laws
of any applicable state or local jurisdiction reasonably requested, in each case
as soon as reasonably practicable but in no event later than 60 days after such
Demand Notice (a "Demand Registration Statement"); provided, however, the
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Company shall not be required to file such registration statement for a period
not to exceed one hundred twenty (120) days immediately following the date a
public offering of the Common Stock (pursuant to an effective registration
statement under the Securities Act) is commenced; provided, further, if in the
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good faith opinion of the Company such registration or qualification would, if
not deferred, materially and adversely affect a proposed business or financial
transaction of substantial importance to the Company, the Company may defer such
registration or qualification for a single period (specified in such notice) of
not more than ninety (90) days. The Demand Notice shall specify the number of
shares to be registered or qualified and the jurisdictions in which such
registration or qualification is desired. The Warrantholder may only exercise
the rights pursuant to this Appendix B once.
Upon the receipt of a Demand Notice, the Company shall promptly (a)
take such steps as are necessary or appropriate to prepare for a registration or
qualification of the Registrable Securities and (b) give written notice to the
holders of the Registrable Securities of a proposed registration or
qualification by the Company under the Securities Act and under the securities
or blue sky laws of the requested jurisdictions and shall, as expeditiously as
possible, in good faith, use commercially reasonable efforts to effect any such
registration or qualification of the Registrable Securities reasonably
designated in such request, all to the extent required to permit the disposition
(in accordance with the intended methods thereof) by the prospective sellers of
Registrable Securities to be registered or qualified, with notification to or
approval of any governmental authority under any Federal or state law or any
listing with any securities exchange, which may be required to permit the sale
or disposition of any Registrable Securities which the holders of such shares
propose to make, and the Company shall keep effective and current such
registration or qualification for a period of one hundred twenty (120) days.
If the managing underwriter, if any, who shall be selected by the
Person who originally requested such registration to manage the distribution of
the Registrable Securities being registered, advises the prospective sellers in
writing that the aggregate number of Registrable Securities to be sold in the
proposed distribution and other shares of Common Stock, if any, requested to be
registered by other holders of registration rights or proposed to be included in
such registration by the Company would exceed the amount of securities that can
be successfully offered then there shall be included in such offering the number
of such securities
which the underwriter believes will not jeopardize the success of the offering
and the Registrable Securities to be sold by each prospective seller shall be
reduced on a pro rata basis.
(b) Registration and Qualification Procedures. Whenever the Company is
-----------------------------------------
required by the provisions of Section 1(a) of this Appendix B to use
commercially reasonable efforts to effect the registration of any of its
securities under the Securities Act and state securities or blue sky laws, the
Company will, as expeditiously as is possible:
(i) prepare and file with the Commission a registration statement
with respect to such securities (which registration statement shall be on Form
S-3 (or any successor form) if the Company is eligible to file a registration
statement on Form S-3 (or any successor form) and the Warrantholder hereof
requests that the Company use such Form S-3) in connection with which the
Company will give the sellers, their underwriters, if any, and their respective
counsel and accountants the opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give each
of them such access to its books and records and such opportunities to discuss
the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of such sellers' and such underwriters' respective counsel, to
conduct a reasonable investigation within the meaning of the Securities Act;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
the prospectus current and to comply with the provisions of the Securities Act
with respect to the sale of all securities covered by such registration
statement whenever the seller of such securities shall desire to sell the same;
provided, however, the Company shall have no obligation to file any amendment or
-------- -------
supplement at its own expense more than one hundred twenty (120) days after the
effective date of such registration statement;
(iii) furnish to each seller such numbers of copies of
preliminary prospectuses and prospectuses and each supplement or amendment
thereto and such other documents as each seller may reasonably request in order
to facilitate the sale or other disposition of the securities owned by such
seller in conformity with (i) the requirements of the Securities Act and (ii)
the seller's proposed method of distribution;
(iv) use commercially reasonable efforts to register or qualify
the securities covered by such registration statement under the securities or
blue sky laws of such jurisdictions within the United States as each seller
shall reasonably request, and do such other reasonable acts and things as may be
required of it to enable each seller to consummate the sale or other disposition
in such jurisdictions of the securities owned by such seller; provided, however,
-------- -------
that the Company shall not be required to (i) qualify as a foreign corporation
or consent to a general and unlimited service of process in any such
jurisdiction, or (ii) qualify as a dealer in securities;
(v) notify each seller at any time when a prospectus relating to
the registration is required to be delivered under the Securities Act, upon
discovery that, or upon 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 any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, at the request of any such seller
promptly prepare and furnish to such seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus shall
not include an untrue statement of a material fact or omit 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 under which they were made; and
(vi) keep each prospective seller of Registrable securities
advised in writing as to the initiation and progress of any registration under
Section 1(a) of this Appendix B.
(c) Expenses. All "Registration Expenses" (as defined below) shall be
--------
borne by the Company. All "Selling Expenses" (as defined below) shall be borne
by the Warrantholder pro rata with all other selling shareholders participating
in such registration on the basis of the number of the shares registered on
their behalf. "Registration Expenses" shall mean all expenses incurred by the
Company in complying with the provisions of this Appendix B, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, and the expense of any special audits incident to or required by
any such registration (but excluding the compensation of regular employees of
the Company, which shall be paid in any event by the Company), but excluding
Selling Expenses. "Selling Expenses" shall mean all fees of counsel to selling
stockholders, underwriting discounts, selling commissions and stock transfer
taxes applicable to the sale of the Common Stock pursuant to the registration
statement.
(d) Suspension of Effectiveness. The Company's obligations under
---------------------------
paragraph (a) above shall not restrict its ability to suspend the effectiveness
of, or direct the Warrantholder not to offer or sell securities under, the
registration statement, at any time, for such reasonable period of time which
the Company believes is necessary to prevent the premature disclosure of any
events or information having a material effect on the Company. In addition, The
Company shall not be required to keep the registration statement effective, or
may, without suspending such effectiveness, instruct the Warrantholder not to
sell the Common Stock during any period during which the Company is instructed,
directed, ordered or otherwise requested by any governmental agency or
self-regulatory organization to stop or suspend such trading or sales.
(e) Holdback Agreement. In the event of any filing of a prospectus
------------------
supplement or the commencement of an underwritten public distribution of the
Company's securities under a registration statement, the Warrantholder agrees
not to effect any public sale or distribution of the Company's Common Stock
(except pursuant to such registration statement to the extent the
Warrantholder's Registrable Securities are included therein), including a sale
pursuant to Rule 144 under the Act, during a period designated by the Company in
a written notice duly given to the Warrantholder, which period shall commence
approximately 14 days prior to the effective date of any such filing of such
prospectus supplement or the commencement of such
underwritten public distribution of such Common Stock under a registration
statement and shall continue for up to 134 consecutive days.
(f) Information. The Company may require the Warrantholder to furnish
-----------
to the Company such information regarding itself and the distribution of the
Common Stock as the Company may from time to time reasonably request in writing
and such other information as may be legally required in connection with such
registration. The Warrantholder agrees to furnish promptly to the Company all
information required to be disclosed in order to make any previously furnished
information not materially misleading.
(g) Indemnification.
---------------
(i) The Company will indemnify the Warrantholder against all
reasonable expenses, claims, losses, damages and liabilities (or actions in
respect thereof), including any of the foregoing incurred in the defense and
settlement of any litigation, arising out of or based upon any untrue statement
(or alleged untrue statement) of a material fact contained in the registration
statement, prospectus or documents incorporated by reference therein, or based
upon any omission (or alleged omission) of a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
including any of the foregoing incurred or arising out of any violation by the
Company of the Act or any rule or regulation promulgated under the Act;
provided, however, that the Company will not be under an obligation to indemnify
-------- -------
the Warrantholder if any of the foregoing are based upon any untrue statement or
omission or alleged untrue statement or omission made in reliance upon
information furnished to the Company by the Warrantholder; provided further that
-------- -------
the indemnity agreements contained in this subsection shall not apply to amounts
paid in any settlement if such settlement is effected without the prior written
consent of the Company.
(ii) The Warrantholder, if participating in the registration
pursuant hereto, will indemnify the Company, its directors and officers, each
person who controls the Company within the meaning of Section 15 of the Act, and
each other selling shareholder participating in such registration (a "Selling
Member"), against all reasonable expenses, claims, losses, damages and
liabilities incurred and actions arising out of any untrue statement (or alleged
untrue statement) of a material fact contained in any registration statement and
any documents related thereto or based upon any omission (or alleged omission)
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, and including any of the foregoing incurred
or arising out of the violation by any the Warrantholder of the Act or any rule
or regulation promulgated thereunder or under the Securities Exchange Act of
1934; provided, however, that the Warrantholder will only be obligated to
indemnify any of them for any of the foregoing based upon a material
misstatement or an omission (alleged or otherwise) made in reliance upon
information furnished to the Company by the Warrantholder.
(iii) Each party entitled to indemnification under this Section
("Indemnified Party") shall give prompt notice to the party required to provide
indemnification ("Indemnifying Party") as soon as Indemnified Party has actual
knowledge of any claim for which indemnity may be sought, and shall permit
Indemnifying Party to assume and control the defense of any such claim or any
litigation resulting therefrom, provided that Indemnified Party will have the
right to approve (whose approval shall not be unreasonably withheld) of the
counsel chosen by Indemnifying Party to defend such claim or litigation, and
provided that Indemnified Party may participate in such defense at Indemnified
Party's expense. The failure of any Indemnified Party to give notice of a claim
subject to indemnification shall not relieve Indemnifying Party of its
obligations under this Agreement unless the failure to give such notice is
prejudicial to Indemnifying Party's ability to defend such claim. Indemnifying
Party shall not assume the defense for matters as to which there is a conflict
of interest or separate and different defense. In defending such claim,
Indemnifying Party shall not, without the prior written consent of Indemnified
Party, consent to the entry of any judgment or enter into any settlement which
does not include an unconditional provision releasing Indemnified Party from all
liability in respect to such claim or litigation.
(iv) The obligations of the Company and the Warrantholder under
this subsection (g) shall survive the completion of any offering of Common Stock
pursuant to the registration statement hereunder, and otherwise.
(h) Other Covenants. The Warrantholder agrees, in connection with any
---------------
disposition of Common Stock, to comply with all applicable prospectus delivery
requirements of the Securities and Exchange Commission. The Warrantholder
further agrees that upon receipt of any notice from the Company of the happening
of any event of the kind requiring the cessation of the distribution of a
prospectus or the distribution of a supplemented or amended prospectus, the
Warrantholder will forthwith discontinue disposition of Common Stock pursuant to
the registration statement covering such shares until the Warrantholder's
receipt of the copies of the supplemented or amended prospectus from the
Company, or until it is advised in writing by the Company that the use of the
prospectus may be resumed, and, if so directed by the Company, the Warrantholder
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in the Warrantholder's possession, of the prospectus
covering such shares current at the time of receipt of such notice.
(i) Assignment. The rights granted to the Warrantholder pursuant to
----------
this Appendix B may not be, directly or indirectly, assigned or transferred
except in connection with a transfer of this Warrant.
