Exhibit 4.5
SECOND AMENDED AND RESTATED
BRIDGE LOAN WARRANT
THIS SECURITY AND ANY SHARES ISSUED UPON EXERCISE OF THIS SECURITY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS THE APPLICABLE SECURITY HAS BEEN REGISTERED UNDER THE ACT AND
SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED AND (2) AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY IS FURNISHED TO THE COMPANY TO THE EFFECT
THAT REGISTRATION UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS IS NOT
REQUIRED.
AMERIGON INCORPORATED
SECOND AMENDED AND RESTATED
WARRANT TO PURCHASE COMMON STOCK
This Second Amended and Restated Warrant (this "Warrant") represents
and certifies that, for value received, Big Beaver Investments LLC, a Delaware
limited liability company (the "Holder"), is entitled to subscribe for and
purchase three hundred twenty six thousand eighty seven (326,087) shares
(subject to adjustment from time to time pursuant to the provisions of Section 4
hereof) of fully paid and nonassessable Common Stock of Amerigon Incorporated, a
California corporation (the "Company"), at $1.15 per shares (the "Exercise
Price"). The number of shares purchasable upon exercise of this Warrant and the
Exercise Price shall be subject to adjustment from time to time as described in
Section 4 hereof.
As used herein, the term "Common Stock" shall mean the Company's
presently authorized Common Stock, no par value, and any securities or other
property into or for which such Common Stock may hereafter be converted or
exchanged.
1. TERM OF WARRANT.
The purchase right represented by this Warrant is exercisable, in
whole or in part, at any time during a period beginning on the effective date of
this Warrant (as set forth in the last paragraph of this Warrant) and ending
five (5) years after such date (the "Warrant Term").
2. METHOD OF EXERCISE; PAYMENT; ISSUANCE OF NEW WARRANT.
a. Subject to Section 1 hereof, the purchase right represented by this
Warrant may be exercised by the Holder, in whole or in part, by the surrender of
this Warrant (with the notice of exercise form attached hereto as Exhibit 1 duly
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executed) at the principal office of the Company and by the payment to the
Company, by cashier's check or wire transfer, of an amount equal to the then
applicable Exercise Price per share multiplied by the number of shares then
being purchased. The Company agrees that the shares so purchased shall be deemed
to be issued to the Holder as the record owner of such shares as of the close of
business on the date on
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which this Warrant shall have been surrendered and payment made for such shares
as aforesaid. In the event of any exercise of this Warrant, a certificate or
certificates for the shares of stock so purchased shall be delivered to the
Holder within fifteen (15) business days thereafter and, unless this Warrant has
been fully exercised or expired, a new warrant representing the portion of the
shares, if any, with respect to which this Warrant shall not then have been
exercised, shall also be issued to the Holder within such fifteen (15) business
day period.
3. STOCK FULLY PAID; RESERVATION OF SHARES.
All Common Stock which may be issued upon the exercise of the rights
represented by this Warrant will, upon issuance, be fully paid and
nonassessable, and free from all liens, charges and United States taxes with
respect to the issue thereof. During the period within which the rights
represented by this Warrant may be exercised, the Company will at all times have
authorized, and reserved for the purpose of the issuance upon exercise of the
purchase rights evidenced by this Warrant, a sufficient number of shares of its
Common Stock to provide for the exercise of the rights represented by this
Warrant.
4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES.
a. STOCK SPLITS AND COMBINATIONS. If the Company at any time or from
time to time after the date this Warrant is issued effects a subdivision of the
outstanding Common Stock pursuant to a stock split or similar event, the
Exercise Price shall be proportionately decreased, and conversely, if the
Company at any time or from time to time after the date this Warrant is issued
combines the outstanding shares of Common Stock into a smaller number of shares
in a reverse stock split or similar event, the Exercise Price shall be
proportionately increased. Upon the adjustment of the Exercise Price pursuant to
the foregoing provisions, the number of shares of Common Stock subject to the
exercise of the Warrant shall be adjusted to the nearest full share by
multiplying the shares subject to the Warrant by a fraction, the numerator of
which is the Exercise Price immediately prior to such adjustment and the
denominator of which is the Exercise Price immediately after such adjustment.
Any adjustment under this subsection (a) shall be effective at the close of
business on the date the subdivision or combination becomes effective.
b. CERTAIN DIVIDENDS AND DISTRIBUTIONS. If the Company at any time or
from time to time after the date this Warrant is issued makes or fixes a record
date for the determination of holders of Common Stock entitled to receive a
dividend or other distribution payable in additional shares of Common Stock,
then and in each such event the number of shares of Common Stock subject to this
Warrant shall be increased and the Exercise Price then in effect shall be
decreased as of the date of such issuance or, in the event such record date is
fixed, as of the close of business on such record date, by:
(i) multiplying the Exercise Price then in effect by a fraction
(A) the numerator of which is the total number of shares of Common Stock
issued and outstanding immediately prior to the time of such issuance orthe
close of business on such record date, and (B) the denominator of which
shall be the total number of shares of Common Stock issued and outstanding
immediately prior to the time of such issuance or
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the close of business on such record date plus the number of shares of
Common Stock issuable in payment of such dividend or distribution; and
(ii) multiplying the number of shares of Common Stock subject to
the Warrant by a fraction (A) the numerator of which is the total number of
shares of Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date plus the
number of shares of Common Stock issuable in payment of such dividend or
distribution, and (B) the denominator of which shall be the total number of
shares of Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date.
If, however, such record date is fixed and such dividend is not fully
paid or if such distribution is not fully made on the date fixed therefor, the
number of shares of Common Stock subject to the Warrant and the Exercise Price
thereof shall be recomputed accordingly as of the close of business on such
record date and thereafter shall be adjusted pursuant to this subsection (b) as
of the time of actual payment of such dividends or distributions.
c. OTHER ADJUSTMENTS. In the event the Company at any time or from
time to time after the date this Warrant is issued:
(i) makes a dividend or other distribution payable in securities
of the Company other than shares of Common Stock, or
(ii) changes any Common Stock into the same or a different number
of shares of any class or classes of stock, whether by recapitalization,
reclassification or otherwise (other than a subdivision or combination of
shares or stock dividend or a reorganization, merger, consolidation or sale
of assets provided for elsewhere in this Section 4), or
(iii) effects a capital reorganization of the Common Stock (other
than a recapitalization, subdivision, combination, reclassification or
exchange of shares provided for elsewhere in this Section 4) or merger or
consolidation of the Company with or into another corporation or entity, or
the sale of all or substantially all of the Company's properties and assets
to any other person,
then, in each such event, any and all new, substituted or additional
securities to which the Holder is or would be entitled by reason of its
ownership of the shares underlying this Warrant shall be immediately subject to
this Warrant and be included in the shares underlying this Warrant for all
purposes hereunder. After each such event, the Exercise Price per share shall be
proportionately adjusted so that the aggregate Exercise Price upon exercise of
this Warrant shall remain the same as before such event.
5. NOTICE OF ADJUSTMENTS.
Whenever any Exercise Price shall be adjusted pursuant to Section 4
hereof, the Company shall prepare a certificate signed by its chief financial
officer setting forth, in reasonable detail, the event requiring the adjustment,
the amount of the adjustment, the method
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by which such adjustment was calculated, the Exercise Price after giving effect
to such adjustment and the number of shares then purchasable upon exercise of
this Warrant, and shall cause copies of such certificate to be mailed (by first
class mail, postage prepaid) to the Holder of this Warrant at the address
specified in Section 8(c) hereof, or at such other address as may be provided to
the Company in writing by the Holder of this Warrant.
6. FRACTIONAL SHARES.
No fractional shares of Common Stock will be issued in conjunction
with any exercise hereunder, but in lieu of such fractional shares the Company
shall make a cash payment therefore on the basis of the Exercise Price then in
effect.
7. COMPLIANCE WITH SECURITIES ACT.
The Holder of this Warrant, by acceptance hereof, agrees that this
Warrant and the shares of Common Stock to be issued on exercise hereof are being
acquired for investment and that it will not offer, sell or otherwise dispose of
this Warrant or any shares of Common Stock to be issued upon exercise hereof
except under circumstances which will not result in a violation of the
Securities Act of 1933, as amended (the "Act"). This Warrant and all shares of
Common Stock issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially in the following
form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS AND
MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN
REGISTERED UNDER THE ACT AND SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS
IS NOT REQUIRED AND (2) AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
IS FURNISHED TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE ACT
AND THE APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED."
8. MISCELLANEOUS.
a. NO RIGHTS AS SHAREHOLDER. The Holder of this Warrant shall not be
entitled to vote or receive dividends or be deemed the Holder of Common Stock or
any other securities of the Company that may at any time be issuable on the
exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value or change of stock to no par value, consolidation, merger, conveyance or
otherwise) or to receive notice of meetings, or to receive dividends or
subscription rights or otherwise, until the Warrant shall have been exercised
and the shares purchasable upon the exercise hereof shall have become
deliverable, as provided herein.
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b. REPLACEMENT. On receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction, or mutilation of this Warrant and, in
the case of mutilation, on surrender and cancellation of this Warrant, the
Company, at the Holder's expense, will execute and deliver, in lieu of this
Warrant, a new Warrant of like tenor.
c. NOTICE. Any notice given to either party under this Warrant shall
be in writing, and any notice hereunder shall be deemed to have been given upon
the earlier of delivery thereof by hand delivery, by courier, or by standard
form of telecommunication or three (3) business days after the mailing thereof
in the U.S. mail if sent registered mail with postage prepaid, addressed to the
Company at its principal executive offices and to the Holder at its address set
forth in the Company's books and records or at such other address as the Holder
may have provided to the Company in writing.
d. GOVERNING LAW. This Warrant shall be governed and construed under
the laws of the State of California.
e. PRIOR WARRANT SUPERCEDED. Upon due execution of this Warrant by the
Company, receipt of this Warrant by the Holder and, effectiveness of this
Warrant in accordance with the next paragraph of this Warrant, this Warrant
shall supercede and replace the Amended and Restated Bridge Loan Warrant dated
December 1, 2001, which prior warrant shall be terminated.
[Signature Page Follows]
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This Second Amended and Restated Bridge Loan Warrant is effective as
of the closing of the sale of shares and warrants to purchase shares of the
Company pursuant to that certain Purchase Agreement dated February 12, 2002 by
and among the Company and Special Situations Fund III, L.P., Special Situation
Funds Cayman Fund, L.P., Special Situations Private Equity Fund, L.P. and
Special Situations Technology Fund, L.P.
AMERIGON INCORPORATED, a California
corporation
By:
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Name:
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Title:
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Agreed and Acknowledged:
Big Beaver Investments, LLC
By:
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Name:
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Title:
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EXHIBIT 1
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NOTICE OF EXERCISE
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TO: AMERIGON INCORPORATED
1. Check Box that Applies:
[ ] The undersigned hereby elects to purchase shares of
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Cmmon Stock of AMERIGON INCORPORATED pursuant to the terms of the
attached Warrant, and tenders herewith payment of the purchase
price of such shares in full.
2. Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
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(Name)
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(Address)
3. The undersigned represents that the aforesaid shares of Common Stock are
being acquired for the account of the undersigned for investment and not with a
view to, or for resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling such shares.
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Signature
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