CERTIFICATE OF DETERMINATION
OF RIGHTS, PREFERENCES AND PRIVILEGES
OF
THE SERIES A PREFERRED STOCK
OF
AMERIGON INCORPORATED
(as amended, August 2000)
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.
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
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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
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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
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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,
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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.
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(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
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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, acting Chief Financial Officer, as of
this 24th day of May, 1999.
/s/ LON E. BELL
Lon E. Bell, Chairman of the Board
/s/SANDRA L. GROUF
Sandra L. Grouf, Assistant Secretary
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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
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