CONTINGENT UNIT PURCHASE WARRANT
THIS SECURITY AND ANY SHARES OR WARRANTS 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 AND CLASS A WARRANTS
This certifies that, for value received, Westar Capital
II LLC (the "Holder") is entitled to subscribe for and purchase
up to 627 units, each unit consisting of such number of Class A
Common Stock and such number of Class A Warrants of Amerigon
Incorporated, a California corporation (the "Company"), as
constitutes a Unit under the Unit Purchase Option dated February
18, 1997 from the Company to D. H. Blair Investment Banking
Corp., at the price specified in Section 2 hereof, 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, and the term "Unit" shall
mean that number of the Company's Class A Common Stock and Class
A Warrants that constitutes a Unit under the Unit Purchase
Options, as may be adjusted from time to time pursuant to the
terms of the Unit Purchase Option. Options to purchase a total
of 1700 Units were issued to D.H. Blair Investment Banking Corp.
and its assignees (collectively, the "Unit Purchase Option").
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
8, 1999 and ending ninety days after the termination of the Unit
Purchase Option.
(b) Contingent Exercise. The number of units that may
be purchased pursuant to the exercise of this Warrant is limited
to a number of units equal to 36.9% multiplied by the number of
Units purchased pursuant to the exercise of the Unit Purchase
Option 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 per unit shall be the same price paid
by a holder to purchase a Unit under the Unit Purchase Option.
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 unit
multiplied by the number of units then being purchased. The
Company agrees that the Class A Common Stock and Class A Warrants
constituting such units so purchased shall be deemed to be issued
to the Holder as the record owner of such shares and warrants as
of the close of business on the date on which this Warrant shall
have been surrendered and payment made for such units as
aforesaid. In the event of any exercise of this Warrant,
certificates for the shares of stock and the warrants
constituting the units 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 units, 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 (i) the number of Class A Warrants that
constitute a Unit under the Unit Purchase Option multiplied by
the number of units for which this Warrant is being exercised and
(ii) 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:
X = Y -- B_
---
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 aggregate 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 and warrants issued
upon such conversion shall be deemed issued to the
Holder as the record owner of such shares and warrants
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 and
the warrants issued in connection therewith 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 units, 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. Fractional Shares.
No fractional shares of Class A Common Stock and no
fractions of Class A Warrants 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.
6. Compliance with Securities Act; Legends.
The Holder of this Warrant, by acceptance hereof,
agrees that this Warrant and the Class A Warrants 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 or Class A Warrants 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 and all Class A
Warrants 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 and all Class A Warrants issued upon
exercise of this Warrant (unless registered under the Act) shall
also 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 THE SHAREHOLDERS'
AGREEMENT AMONG CERTAIN SHAREHOLDERS NAMED THEREIN."
7. Notice of Exercise of Unit Purchase Option.
Whenever any units shall be purchased pursuant to the
Unit Purchase Option, within 30 days after such exercise the
Company shall notify the Holder (by first class mail, postage
prepaid) 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.
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 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 securities 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 8th 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 __________
"units" 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 ________ "units" pursuant to the terms of
the attached Warrant and to receive ______ shares of
Class A Common Stock and ________ Class A Warrants
pursuant thereto.
2. Please issue a certificate or certificates representing
said shares of the Class A Common Stock and Class A Warrants in the
name of the undersigned or in such other name as is specified below:
-----------------------------
(Name)
-----------------------------
-----------------------------
(Address)
3. The undersigned represents that the aforesaid
shares of Class A Common Stock and Class A Warrants 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