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EXHIBIT 4.2
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, ____________ a Delaware
corporation (the "Holder") is entitled to subscribe for and purchase up to
___________ 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 "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.
The purchase right represented by this Warrant is exercisable, in
whole or in part, at any time during a period beginning on __________, ____ and
ending __________, ____.
2. Warrant Price.
The Warrant Price is $_____ 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
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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 Common
Stock to be issued to the Holder;
Y = the number of shares of 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
Common Stock of the Company on the principal national
securities exchange on which the 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 Common Stock shall be the
highest price per share which the Company could obtain
from a willing buyer (not a current employee or
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director) for shares of 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 Common Stock
shall be deemed to be the value received by the holders
of the Company's Common Stock for each share of 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 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 Common Stock to provide for
the exercise of the rights represented by this Warrant.
5. Adjustment of Purchase Price and Number of Shares.
The kind of securities purchasable upon the exercise of
this Warrant, the Warrant Price and the number of shares
purchasable upon exercise of this Warrant shall be subject to
adjustment from time to time upon the occurrence of the following
events:
(a) Reclassification, Consolidation, or Merger. In
case of any reclassification or change of outstanding
securities of the class issuable upon exercise of this
Warrant (other than a change in par value, or from par
value to no par value, or from no par value to par
value, or as a result of a subdivision or combination),
or in case of any consolidation or merger of the
Company with or into another corporation, other than a
merger with another corporation in which the Company is
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a continuing corporation and which does not result in
any reclassification or change of outstanding
securities issuable upon exercise of this Warrant, the
Company, or such successor, as the case may be, shall
execute a new Warrant, providing that the Holder of
this Warrant shall have the right to exercise such new
Warrant and procure upon such exercise, in lieu of each
share of Common Stock theretofore issuable upon
exercise of this Warrant, the kind and amount of shares
of stock, other securities, money and property
receivable upon such reclassification, change,
consolidation, or merger by a Holder of one share of
Common Stock; provided, however, that the Board of
Directors of the Company may determine that, upon the
occurrence of any of the following listed events, this
Warrant will, on such date of occurrence and if
unexercised, in whole or in part, by the Holder, will
thereupon terminate: (i) a stockholder approved
dissolution or liquidation of the Company; (ii) a
stockholder approved sale of substantially all of the
Company's business and/or assets to a person or entity
that is not a subsidiary or affiliate of the Company;
or (iii) any consolidation or merger of the Company
with or into one or more entities that are not
subsidiaries or other affiliates of the Company where
the Company does not survive. Any new Warrant shall
provide for adjustments, which shall be as nearly
equivalent as may be practicable to the adjustments
provided for in this Section 5. The provisions of this
subparagraph (a) shall similarly apply to successive
reclassification, changes, consolidations, and mergers.
(b) Subdivision or Combination of Shares. If the
Company at any time while this Warrant remains
outstanding and unexpired shall subdivide or combine
its common stock, or distribute dividends on its common
stock payable in Common Stock, the Warrant Price shall
be proportionately decreased in the case of a
subdivision or increased in the case of a combination
or dividend.
(c) Adjustment of Number of Shares. Upon each
adjustment in the Warrant Price pursuant to any of
subparagraphs (a) through (c) of this Section 5, the
number of shares of Common Stock purchasable hereunder
shall be adjusted, to the nearest whole share, to the
product obtained by multiplying the number of shares
purchasable immediately prior to such adjustment in the
Warrant Price by a fraction, the numerator of which
shall be the Warrant Price immediately prior to such
adjustment and the denominator of which shall be the
Warrant Price immediately thereafter.
6. Notice of Adjustments.
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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
11(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 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.
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."
9. Transfer and Exchange of Warrant.
This Warrant is not transferrable or exchangeable without
the consent of the Company which is not to be unreasonably
withheld upon the Holder providing to Company a written opinion
by independent counsel satisfactory to the Company opining that
the transfer or exchange will not violate any Federal or state
securities laws.
10. Piggy-Back Registration Rights.
(a) Registration. If prior to expiration of this
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Warrant, the Company proposes to register any of its securities under the Act,
in connection with the public offering of such securities (other than a
registration form relating to: (i) a registration of a stock option plan, stock
purchase or compensation or incentive plan or of stock issued or issuable
pursuant to any such plan, or a dividend investment plan; (ii) a registration of
securities proposed to be issued in exchange for securities or assets of or in
connection with a merger or consolidation with, another entity; or (iii) a
registration of securities proposed to be issued in exchange for, or as a right
exercisable only by holders of, other securities of the Company), the Company
shall promptly (but in no event later than 30 days prior to such registration)
give the Holder written notice of such registration together with a list of the
jurisdictions in which the Company intends to attempt to qualify such securities
under applicable state securities laws. Upon the written request of the Holder
given within 10 days after receipt of such written notice from the Company in
accordance with Section 11(c), the Company shall include in the registration
statement to be filed by it under the Act in connection with such offering all
of the Common Stock issuable pursuant to this Warrant (the "Registrable
Securities") that the Holder has requested to be registered. The Holder may only
exercise the rights pursuant to this Section 10 once.
(b) Underwritten Offering. The right of the Holder to "piggyback" in
an underwritten public offering of the Company's securities pursuant to Section
10(a) shall be conditioned upon the Holder's participation in such underwriting
and the inclusion of the Holder's Registrable Securities in the underwriting to
the extent provided herein. If the Holder proposes to distribute its securities
through such underwriting, the Holder shall (together with the Company and any
other stockholders of the Company distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for underwriting by the Company and, if
requested, custody and power of attorney agreements in customary form.
Notwithstanding any other provision of this Section 10, if the underwriter
determines that marketing factors require a limitation of the number of shares
to be underwritten, the Company shall so advise all stockholders and Holders of
Registrable Securities of the Company participating in the underwriting and
registration, and the number of securities that may be included in the
registration and underwriting shall be allocated first to the Company, and then
any remaining shares shall be allocated among such stockholders and Holders of
Registrable Securities of the Company pro rata based on the number of shares for
which registration was requested.
(c) Non-Underwritten Offering. The following provisions will apply
in the event the registration relates to an offering other than an underwritten
public offering: The Holder shall promptly notify the Company of the proposed
manner of sale of any Common Stock to be sold pursuant to such Registration
Statement other than in unsolicited brokers' transactions
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including only usual and customary brokers' commissions. The Holder shall not
undertake any such transactions other than unsolicited brokers' transactions
including only usual and customary brokers' commissions unless (i) the Holder
shall have furnished all information required to be disclosed in any related
prospectus or prospectus supplement, and (ii) the Holder shall have agreed in
writing to bear all of the incremental costs directly attributable to such
manner of sale.
(d) Expenses. All "Registration Expenses" (as defined below) shall
be borne by the Company. All "Selling Expenses" (as defined below) shall be
borne by the Holder pro rata with all other selling shareholders participating
in such registration on the basis of the number of the shares registered on
their behalf (except for Selling Expenses referred to in clause (c)(ii) of this
Section which shall be borne by the Holder causing such expenses to be
incurred). "Registration Expenses" shall mean all expenses incurred by the
Company in complying with the provisions of this Section 10, 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 (including also the incremental costs referred to in clause (c)(ii) of
this Section).
(e) Suspension of Effectiveness. The Company's obligations under
paragraph (a) above shall not restrict its ability to suspend the effectiveness
of, or direct the Holder 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 Holder 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.
(f) 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 Holder 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 Holder'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
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Holder, 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
(g) Information. The Company may require the Holder 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 Holder agrees to furnish promptly to the Company all
information required to be disclosed in order to make any previously furnished
information not materially misleading.
(h) Indemnification.
(i) The Company will indemnify the Holder 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 Holder 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 Holder; 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 Holder, 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 Holder of the Act or any rule or regulation
promulgated thereunder or under the Securities Exchange Act of 1934; provided,
however, that the Holder will only be obligated to indemnify any of them for any
of the foregoing based upon a
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material misstatement or an omission (alleged or otherwise) made in reliance
upon information furnished to the Company by the Holder.
(iii) Each party entitled to indemnification under this Section
10 ("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 Holder under this
subsection (h) shall survive the completion of any offering of Common Stock
pursuant to the registration statement hereunder, and otherwise.
(i) Other Covenants. The Holder agrees, in connection with any
disposition of Common Stock, to comply with all applicable prospectus delivery
requirements of the Securities and Exchange Commission. The Holder 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 Holder will
forthwith discontinue disposition of Common Stock pursuant to the registration
statement covering such shares until the Holder'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 Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in the
Holder's possession, of the prospectus covering such shares current at the time
of receipt of such notice.
(j) Assignment. The rights granted to the Holder pursuant to this
Section 10 may not be, directly or indirectly, assigned or transferred except in
connection with a transfer of
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this Warrant.
11. 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.
(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.
[Remainder of page intentionally left blank]
This Warrant is executed as of this ____ day of December, 1998.
AMERIGON INCORPORATED
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By:
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Name:
----------------------------
Title:
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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:
--------------------------------
(Name)
---------------------------------
---------------------------------
(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
