CONTINGENT COMMON STOCK PURCHASE WARRANT
THIS SECURITY AND ANY SHARES ISSUED UPON EXERCISE OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES LAWS
AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THE
APPLICABLE SECURITY HAS BEEN REGISTERED UNDER THE ACT AND SUCH
LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS NOT REQUIRED AND (2)
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS FURNISHED TO
THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.
AMERIGON INCORPORATED
WARRANT TO PURCHASE COMMON STOCK
This certifies that, for value received, Westar Capital
II LLC (the "Holder") is entitled to subscribe for and purchase
up to 523,530 shares (subject to adjustment from time to time
pursuant to the provisions of Section 5 hereof) of fully paid and
nonassessable Class A Common Stock of Amerigon Incorporated, a
California corporation (the "Company"), at the price specified in
Section 2 hereof, as such price may be adjusted from time to time
pursuant to Section 5 hereof (the "Warrant Price"), subject to
the provisions and upon the terms and conditions hereinafter set
forth.
As used herein, the term "Class A Common Stock" shall
mean the Company's presently authorized Class A Common Stock, no
par value, and any stock into or for which such Common Stock may
hereafter be converted or exchanged.
1. Term of Warrant; Contingent Exercise.
(a) Term. Subject to Section 1(b) hereof, the purchase
right represented by this Warrant is exercisable, in whole or in
part, at any time during a period beginning on June 7, 1999 and
ending ninety days after the Warrant Expiration Date as such
term is defined in the Warrant Agreement dated February
12, 1997, by and among the Company, U.S. Stock Transfer
Corporation, as Warrant Agent, and D.H. Blair Investment Banking
Corp. (the "1997 Warrant Agreement").
(b) Contingent Exercise. The number of shares that
may be purchased pursuant to the exercise of this Warrant is
limited to a number of shares equal to 36.9% multiplied by the
number of shares purchased pursuant to the exercise of Class A
Warrants of the Company after the date hereof. To the extent
that this would result in the right to purchase a fractional
number of shares, the number of shares permitted to be purchased
will be rounded down to the lowest whole share; provided,
however, that the number of shares with respect to which this
Warrant shall not then have been exercised will appropriately
reflect such adjustment.
2. Warrant Price.
The Warrant Price is $25.00 per share, subject to
adjustment from time to time pursuant to the provisions of
Section 5 hereof.
3. Method of Exercise or Conversion; Payment; Issuance
of New Warrant.
(a) Exercise. Subject to Section 1 hereof, the
purchase right represented by this Warrant may be exercised by
the Holder, in whole or in part, by the surrender of this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company and by the
payment to the Company, by cashier's check or wire transfer, of
an amount equal to the then applicable Warrant Price per share
multiplied by the number of shares then being purchased. The
Company agrees that the shares so purchased shall be deemed to be
issued to the Holder as the record owner of such shares as of the
close of business on the date on which this Warrant shall have
been surrendered and payment made for such shares as aforesaid.
In the event of any exercise of this Warrant, certificates for
the shares of stock so purchased shall be delivered to the Holder
within 15 business days thereafter and, unless this Warrant has
been fully exercised or expired, a new Warrant representing the
portion of the shares, if any, with respect to which this Warrant
shall not then have been exercised, shall also be issued to the
Holder within such 15 business day period.
(b) Conversion. Subject to Section 1 hereof, the
Holder may convert this Warrant (the "Conversion Right"), in
whole or in part, into the number of shares (less the number of
shares which have been previously exercised or as to which the
Conversion Right has been previously exercised) calculated
pursuant to the following formula by surrendering this Warrant
(with the notice of exercise form attached hereto as Exhibit 1
duly executed) at the principal office of the Company specifying
the number of shares the rights to purchase which the Holder
desires to convert:
Y (A - B)
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X = A
where: X = the number of shares of Class A
Common Stock to be issued to the
Holder;
Y = the number of shares of Class A
Common Stock subject to this Warrant for
which the Conversion Right is being
exercised;
A = the Market Price of the Common
Stock (as defined below) as of the trading
day immediately preceding the date of
exercise of this Warrant; and
B = the Warrant Price
For purposes hereof, the "Market Price of the Common
Stock" shall be the closing price per share of the
Class A Common Stock of the Company on the principal
national securities exchange on which the Class A
Common Stock of the Company is then listed or admitted
to trading or, if not then listed or traded on any such
exchange, on the NASDAQ National Market System, or if
then not listed or traded on such system, the closing
bid price per share on NASDAQ or other over-the-counter
trading market. If at any time such quotations are not
available, the market price of a share of Class A
Common Stock shall be the highest price per share which
the Company could obtain from a willing buyer (not a
current employee or director) for shares of Class A
Common Stock sold by the Company, from authorized but
unissued shares, as determined in good faith by the
Board of Directors of the Company, unless the Company
shall become subject to a merger, acquisition or other
consolidation pursuant to which the Company is not the
surviving party, in which case the market price of a
share of Class A Common Stock shall be deemed to be the
value received by the holders of the Company's Class A
Common Stock for each share of Class A Common Stock
pursuant to the Company's acquisition.
The Company agrees that the shares so converted shall
be deemed issued to the Holder as the record owner of
such shares as of the close of business on the date on
which this Warrant shall have been surrendered as
aforesaid. In the event of any conversion of this
Warrant, certificates for the shares of stock so
converted shall be delivered to the holder hereof
within 15 business days thereafter and, unless this
Warrant has been fully converted or expired, a new
Warrant representing the portion of the shares, if any,
with respect to which this Warrant shall not then have
been converted, shall also be issued to the holder
hereof within such 15-day period.
4. Stock Fully Paid; Reservation of Shares.
All Class A Common Stock which may be issued upon the
exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable, and free from all
United States taxes, liens and charges with respect to the issue
thereof. During the period within which the rights represented
by this Warrant may be exercised, the Company will at all times
have authorized, and reserved for the purpose of the issuance
upon exercise of the purchase rights evidenced by this Warrant, a
sufficient number of shares of its Class A Common Stock to
provide for the exercise of the rights represented by this
Warrant.
5. Adjustment of Purchase Price and Number of Shares.
The exercise price and number of shares purchasable
on exercise of this Warrant shall adjust identically with any
adjustments made pursuant to the 1997 Warrant Agreement and the
provisions of Section 9 of the 1997 Warrant Agreement and the
definitions of the different terms therein are hereby incorporated
by reference.
6. Notice of Adjustments.
Whenever any Warrant Price shall be adjusted pursuant
to Section 5 hereof, the Company shall prepare a certificate
signed by its chief financial officer setting forth, in
reasonable detail, the event requiring the adjustment, the
amount of the adjustment, the method by which such adjustment
was calculated, the Warrant Price after giving effect to such
adjustment and the number of shares then purchasable upon
exercise of this Warrant, and shall cause copies of such
certificate to be mailed (by first class mail, postage prepaid)
to the Holder of this Warrant at the address specified in Section
10(c) hereof, or at such other address as may be provided to the
Company in writing by the Holder of this Warrant.
7. Fractional Shares.
No fractional shares of Class A Common Stock will be
issued in conjunction with any exercise hereunder, but in lieu
of such fractional shares the Company shall make a cash payment
therefore on the basis of the Warrant Price then in effect.
8. Compliance with Securities Act; Legends.
The Holder of this Warrant, by acceptance hereof,
agrees that this Warrant and the shares of Class A Common Stock
to be issued on exercise hereof are being acquired for investment
and that it will not offer, sell or otherwise dispose of this
Warrant or any shares of Class A Common Stock to be issued upon
exercise hereof except under circumstances which will not result
in a violation of the Securities Act of 1933, as amended (the
"Act"). This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER
THE ACT AND SUCH LAWS OR (1) REGISTRATION UNDER SUCH LAWS IS
NOT REQUIRED AND (2) AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY IS FURNISHED TO THE COMPANY TO THE EFFECT THAT
REGISTRATION UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED."
This Warrant and all shares of Class A Common Stock
issued upon exercise of this Warrant (unless registered under the
Act) shall be stamped and imprinted with a legend substantially
in the following form:
"THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE,
ENCUMBRANCE OR OTHER DISPOSITION (EACH, A "TRANSFER") AND
VOTING OF ANY OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE RESTRICTED BY THE TERMS OF A SHAREHOLDERS'
AGREEMENT AMONG CERTAIN SHAREHOLDERS NAMED THEREIN."
9. Notice of Exercise of Class A Warrants.
Whenever any Class A Warrant shall be exercised, within
30 days after such exercise the Company shall notify the Holder
(by first class mail, postage prepaid) at the address specified
in Section 10(c) hereof, or at such other address as may be
provided to the Company in writing by the Holder of this Warrant.
10. Miscellaneous.
(a) No Rights as Shareholder. The Holder of this
Warrant shall not be entitled to vote or receive dividends or be
deemed the Holder of Class A Common Stock or any other securities
of the Company that may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained herein be
construed to confer upon the Holder of this Warrant, as such, any
of the rights of a shareholder of the Company or any right to
vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock,
change of par value or change of stock to no par value,
consolidation, merger, conveyance or otherwise) or to receive
notice of meetings, or to receive dividends or subscription
rights or otherwise until the Warrant shall have been exercised
and the shares purchasable upon the exercise hereof shall have
become deliverable, as provided herein.
(b) Replacement. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant and, in the case of mutilation, on
surrender and cancellation of this Warrant, the Company, at the
Holder's expense, will execute and deliver, in lieu of this
Warrant, a new Warrant of like tenor.
(c) Notice. Any notice given to either party under
this Warrant shall be in writing, and any notice hereunder shall
be deemed to have been given upon the earlier of delivery
thereof by hand delivery, by courier, or by standard form of
telecommunication or three (3) business days after the mailing
thereof in the U.S. mail if sent registered mail with postage
prepaid, addressed to the Company at its principal executive
offices and to the Holder at its address set forth in the
Company's books and records or at such other address as the
Holder may have provided to the Company in writing.
(d) Governing Law. This Warrant shall be governed
and construed under the laws of the State of California.
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This Warrant is executed as of this 8 day of June, 1999.
AMERIGON INCORPORATED
By: /s/ Lon E. Bell
Name: Lon E. Bell
-----------------------------
Title: Chief Executive Officer
EXHIBIT 1
NOTICE OF EXERCISE
TO: AMERIGON INCORPORATED
1. Check Box that Applies:
The undersigned hereby elects to purchase __________
shares of Class A Common Stock of AMERIGON INCORPORATED
pursuant to the terms of the attached Warrant, and
tenders herewith payment of the purchase price of such
shares in full.
The undersigned hereby elects to convert the attached
warrant into ________ shares of Class A Common Stock of
AMERIGON INCORPORATED pursuant to the terms of the
attached Warrant.
2. Please issue a certificate or certificates
representing said shares of Class A Common Stock in the name of
the undersigned or in such other name as is specified below:
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(Name)
------------------------------
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(Address)
3. The undersigned represents that the aforesaid
shares of Class A Common Stock are being acquired for the account
of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the
undersigned has no present intention of distributing or reselling
such shares.
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Signature