EXHIBIT 4.15
AMERIGON
INCORPORATED
COMMON STOCK SUBSCRIPTION
AGREEMENT
THIS COMMON STOCK SUBSCRIPTION
AGREEMENT (this
“Agreement”) is entered into as of June 27, 2003, by
and among Amerigon Incorporated, a California corporation (the
“Company”), and Ferrotec Corporation, a Japanese
corporation (the “Purchaser”).
RECITALS
WHEREAS, the Company has authorized the sale and issuance
of an aggregate of 1,000,000 shares of its Common Stock (the
“Shares”) in a private placement pursuant to Regulation
S under the Securities Act of 1933;
WHEREAS, Purchaser desires to purchase, and the Company
desires to issue and sell, the Shares on the terms and conditions
set forth herein; and
NOW, THEREFORE,
in consideration of the foregoing
recitals and the mutual promises hereinafter set forth, the parties
hereto agree as follows:
SECTION 1. PURCHASE AND SALE OF
STOCK.
1.1 Authorization of
Shares. The Company has
authorized the sale and issuance to Purchaser of the
Shares.
1.2 Sale and Purchase.
Subject to the terms and conditions
hereof, the Company hereby agrees to issue and sell to Purchaser,
and Purchaser agrees to purchase from the Company, the Shares. In
exchange for the Shares, Purchaser shall pay to the Company an
aggregate purchase price of US $2,500,000 (the “Purchase
Price”) or US $2.50 per Share.
SECTION 2. CLOSING.
2.1 Closing.
The closing of the sale and purchase
of the Shares under this Agreement (the “Closing”) will
take place at the offices of the Purchaser on June 27, 2003 (such
date is hereinafter referred to as the “Closing
Date”).
2.2 Delivery.
At the Closing, subject to the terms
and conditions hereof, the Company will deliver to Purchaser
certificates representing the number of Shares to be purchased at
the Closing by Purchaser, against payment of the Purchase Price by
check or wire transfer made payable to the order of the Company, or
any combination of the foregoing.
1
SECTION 3. REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE COMPANY.
The Company hereby represents,
warrants and covenants to Purchaser as follows:
3.1 Organization, Good Standing,
Corporate Power, Qualification and Subsidiaries.
The Company is a corporation duly
organized, validly existing and in good standing under the laws of
the State of California. The Company has all requisite corporate
power and authority to own and operate its properties and assets,
to execute and deliver this Agreement, to issue and sell the Shares
and to carry out the provisions of this Agreement and to carry out
its business as presently conducted and as presently proposed to be
conducted. The Company is duly qualified and is authorized to do
business and is in good standing as a foreign corporation in all
jurisdictions in which the nature of its activities and of its
properties (both owned and leased) makes such qualification
necessary, except for those jurisdictions in which failure to do so
would not have a material adverse effect on the Company or its
business.
3.2 Due Authorization and
Issuance. The Shares have
been duly authorized for issuance and sale to Purchaser pursuant to
this Agreement, and, when issued and delivered by the Company
against payment therefor in accordance with the terms of this
Agreement, will be duly and validly issued and fully paid and
nonassessable, and will be sold free and clear of any pledge, lien,
security interest, encumbrance, claim or equitable interest. No
further approval or authorization of any shareholder or the Board
of Directors of the Company is required for the issuance and sale
or transfer of the Shares.
3.3 Authorization; Binding
Obligations. All
corporate action on the part of the Company, its officers,
directors and shareholders necessary for the authorization, sale
and issuance of the Shares pursuant hereto and for the performance
of the Company’s obligations hereunder has been taken or will
be taken prior to the Closing. This Agreement, when executed and
delivered, will be valid and binding obligations of the Company
enforceable in accordance with their terms, except (i) as limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
other laws of general application affecting enforcement of
creditors’ rights; (ii) general principles of equity that
restrict the availability of equitable remedies; and (iii) to the
extent that enforceability may be limited by applicable
laws.
3.4 Offering Valid.
Assuming the accuracy of the
representations and warranties of Purchaser contained in Section 4
hereof, the offer, sale and issuance of the Shares will be exempt
from the registration requirements of the Securities Act of 1933,
as amended (the “Securities Act”), and will have been
registered or qualified (or are exempt from registration and
qualification) under the registration, permit or qualification
requirements of all applicable state securities laws. The Company
will not engage in any directed selling efforts (as defined in
Regulation S under the Securities Act) with respect to the Shares.
The Company has complied and will comply with the offering
restrictions requirement of Regulation S (Rule 901 through Rule 905
and Preliminary Notes) of the Securities Act (“Regulation
S”).
SECTION 4. REPRESENTATIONS, WARRANTIES AND
COVENANTS OF PURCHASER.
Purchaser hereby represents,
warrants and covenants to the Company as follows:
4.1 Requisite Power and
Authority. Purchaser has
all necessary power and authority under all applicable provisions
of law to execute and deliver this Agreement and to carry out its
provisions. All actions on Purchaser’s part required for the
lawful execution and
|
|
|
|
|
|
|
|
|
2
|
|
(Subscription Agreement)
|
delivery of this Agreement have been or will be
effectively taken prior to the Closing. Upon their execution and
delivery, this Agreement will be valid and binding obligations of
Purchaser, enforceable in accordance with their terms, except (i)
as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting
enforcement of creditors’ rights, (ii) general principles of
equity that restrict the availability of equitable remedies, and
(iii) to the extent that enforceability may be limited by
applicable laws.
4.2 Investment
Representations. Purchaser understands that the Shares have not
been registered under the Securities Act. Purchaser also
understands that the Shares are being offered and sold pursuant to
an exemption from registration contained in the Securities Act
based in part upon Purchaser’s representations contained in
the Agreement. Purchaser represents that (a) the offer to sell the
Shares to Purchaser was not made to a person in the United States,
(b) Purchaser was outside the United States at the time its
agreement to purchase was originated, and (c) no directed selling
efforts (as defined in Regulation S) directed at Purchaser were
made in the United States by the Company, any of its affiliates or
any person acting on behalf of the Company.
4.3 Accredited
Investor. Purchaser
represents that it is an accredited investor within the meaning of
Regulation D under the Securities Act.
4.4 Purchaser Bears Economic
Risk. Purchaser has
substantial experience in evaluating and investing in private
placement transactions of securities in companies similar to the
Company so that it is capable of evaluating the merits and risks of
its investment in the Company and has the capacity to protect its
own interests. Purchaser must bear the economic risk of this
investment indefinitely unless the Shares are registered pursuant
to the Securities Act, or exemption from registration is
available.
4.5 Acquisition for Own
Account. Purchaser is not
a U.S. person, as defined in Rule 902(k) of Regulation S of the
Securities Act, and is acquiring the Shares for Purchaser’s
own account for investment only and not for the account or benefit
of any U.S. Person or with a view towards their
distribution.
4.6 Receipt of Company
Information. Purchaser
has had an opportunity to discuss the Company’s business,
management and financial affairs with directors, officers and
management of the Company and has had the opportunity to review the
Company’s operations and facilities. Purchaser has also had
the opportunity to ask questions of and receive answers from the
Company and its management regarding the terms and conditions of
this investment. Purchaser has reviewed the Form 10-K, Annual
Report to Security Holders and Proxy Statement for the period ended
December 31, 2002 and Form 10-Q for the period ended March 31,
2003, filed by the Company with the Securities and Exchange
Commission (SEC) and any 8-K filings made by the Company with the
SEC since the date of filing of such Form 10-K. The foregoing,
however, does not limit or modify the representations and
warranties of the Company in Section 3 of this Agreement or the
right of Purchaser to rely thereon.
4.7 No Public Market.
Purchaser acknowledges and agrees
that the Shares must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption
from such registration is available. Purchaser understands that the
Company has no
|
|
|
|
|
|
|
|
|
3
|
|
(Subscription Agreement)
|
present intention of registering the Shares, or
any shares of its Common Stock. Purchaser also understands that
there is no assurance that any exemption from registration under
the Securities Act will be available and that, even if available,
such exemption may not allow Purchaser to transfer all or any
portion of the Shares under the circumstances, in the amounts or at
the times Purchaser might propose. Purchaser has been advised or is
aware of the provisions of Rule 144 promulgated under the
Securities Act, which permits limited resale of shares purchased in
a private placement subject to the satisfaction of certain
conditions, including, among other things: the availability of
certain current public information about the Company, the resale
occurring not less than one year after a party has purchased and
paid for the security to be sold, the sale being through an
unsolicited “broker’s transaction” or in
transactions directly with a market maker (as said term is defined
under the Securities Exchange Act of 1934, as amended) and the
number of shares being sold during any three-month period not
exceeding specified limitations.
4.8 Transfer
Restrictions. Purchaser
acknowledges and agrees that the Shares are subject to restrictions
on transfer as set forth in this Section 4.8 and in Appendix
A hereto. Purchaser understands that: (a) the Shares shall not
be offered, sold or transferable in the absence compliance with the
provisions of Regulation S, pursuant to registration under the
Securities Act, or pursuant to an exemption therefrom or in the
absence of compliance with any term of this Agreement; (b) the
Company shall provide stop transfer instructions to its transfer
agent (the “Transfer Agent”) with respect to the Shares
in order to enforce the restrictions contained in this Section 4.8
and in Appendix A hereto; (c) hedging transactions involving
the Shares may not be conducted unless in compliance with the
Securities Act; and (d) each certificate representing Shares shall
be in the name of Purchaser and shall bear substantially the
following legends (in addition to any legends required under
applicable securities laws):
“THE SECURITIES REPRESENTED BY
THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
OF AMERICA SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”). THE SECURITIES REPRESENTED BY THIS
CERTIFICATE SHALL NOT BE OFFERED OR SOLD IN THE UNITED STATES (AS
DEFINED UNDER SECTIONS 230.901 THROUGH 230.904 OF TITLE 17 OF THE
UNITED STATES CODE OF FEDERAL REGULATIONS (“REGULATION
S”) OR OFFERED, SOLD, DELIVERED, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO REGULATION S, PURSUANT TO
REGISTRATION UNDER THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. HEDGING
TRANSACTION INVOLVING THE SECURITIES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE
SECURITIES ACT. THIS CERTIFICATE MAY NOT BE OFFERED, SOLD,
DELIVERED, PLEDGED OR OTHERWISE TRANSFERRED TO OR HELD BY ANY
ENTITY, THE ASSETS OF WHICH ARE DEEMED TO INCLUDE THE ASSETS OF ANY
EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO THE U.S. EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974 (“ERISA”). EACH
HOLDER OF THIS CERTIFICATE WHO IS A U.S. PERSON IS HEREBY NOTIFIED
THAT, EXCEPT AS PROVIDED IN THE AGREEMENT, SUCH HOLDER SHALL NOT BE
ENTITLED TO RECEIVE
|
|
|
|
|
|
|
|
|
4
|
|
(Subscription Agreement)
|
ANY PAYMENTS UNDER THIS CERTIFICATE.
BY ITS ACCEPTANCE OF THIS CERTIFICATE, EACH HOLDER OF THIS
CERTIFICATES SHALL BE DEEMED TO HAVE REPRESENTED TO AMERIGON
INCORPORATED THAT SUCH HOLDER EITHER IS NOT A U.S. PERSON AND THAT
SUCH HOLDER IS NOT PURCHASING THIS CERTIFICATE FOR THE ACCOUNT OF
ANY U.S. PERSON OR IS ACQUIRING THIS SECURITY IN A TRANSACTION THAT
IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
ANY UNITED STATES PERSON WHO HOLDS
THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED
STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE
CODE.”
SECTION 5. REGISTRATION RIGHTS.
5.1 Demand
Registration.
(a) Subject to the provisions set forth in this
Section 5.1, if the Company shall receive a written request from
Purchaser that the Company effect the registration under the
Securities Act on Form S-3 of all of the Purchaser’s Shares
and specifying the intended method of disposition thereof (a
“Demand Registration”), then the Company shall use its
reasonable best efforts to effect, as expeditiously as possible,
the registration under the Securities Act on Form S-3 of the
Registrable Shares with the Securities and Exchange Commission (the
“SEC”) which the Company has been so requested to
register by Purchaser then held by Purchaser, all to the extent
necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Shares so
to be registered.
Purchaser may, at any time prior to
the effective date of the registration statement relating to such
registration, revoke a request for such registration, without
liability, by providing a written notice to the Company revoking
such request, in which case such request, so revoked, shall be
considered a Demand Registration unless such revocation arose out
of the fault of the Company or unless Purchaser reimburses the
Company for all costs incurred by the Company in connection with
such registration, in which case such request shall not be
considered a Demand Registration.
(b) The Company will not be required to effect more
than one Demand Registration, and Purchaser shall not be entitled
to request a Demand Registration until one year after the Closing.
The Company will not be obligated to effect a Demand Registration
(1) if the Registrable Securities requested by Purchaser to be
registered have an anticipated aggregate offering price to the
public (before deducting any underwriter discounts, concessions or
commissions) of less than $1,000,000 or (2) if Form S-3 is not
available for such offering.
(c) Upon written notice to Purchaser, the Company
may, as a matter of right, postpone effecting a registration
pursuant to this Section 5.1 on one occasion during any period of
six consecutive months for a reasonable time specified in the
notice but not exceeding 90 days (which period may not be extended
or renewed except th