Exhibit 10.22.2
FIRST AMENDMENT TO THE INVESTORS' RIGHTS AGREEMENT
This First Amendment to the Investors' Rights Agreement (this "Amendment")
dated as of March 16, 2000, is by and between Amerigon Incorporated, a
California corporation (the "Company") and Westar Capital II LLC, a Delaware
limited liability company ("Westar") and Big Beaver Investments LLC, a Delaware
limited liability company ("Big Beaver") (together, the "Investors") and amends
the Investors' Rights Agreement dated as of June 8, 1999 among the Company and
the Investors (the "Investors' Rights Agreement"). All terms not otherwise
defined herein shall have the meanings set forth in the Investors' Rights
Agreement.
RECITALS
WHEREAS, the Company and the Investors, through Big Star Investments LLC
("Big Star"), have entered into a Credit Agreement, dated as of March 16, 2000;
WHEREAS, the Note issued by Company pursuant to the Credit Agreement (the
"Credit Agreement") is convertible into Common Stock of the Company as provided
therein;
WHEREAS, in order to induce Big Star to enter into the Credit Agreement,
the Company and Big Star have entered into a certain Bridge Warrant Agreement,
dated as of March 16, 2000 (the "Warrant Agreement"), pursuant to which the
Company has agreed to issue to Big Star certain warrants ("Bridge Warrants") to
purchase shares of Common Stock of the Company as provided therein;
WHEREAS, the Company desires to amend and restate the definition of
"Registrable Securities" and to include definitions for "Bridge Loan," "Bridge
Note," and "Bridge Warrants" in the Investors' Rights Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to amend the Investors' Rights Agreement as
provided herein:
1. Section 1.1(g) of the Investors' Rights Agreement is amended and restated
as follows:
"The term `Registrable Securities' means (i) the Common Stock issuable or
issued upon conversion of the Series A Preferred Stock, (ii) the Common
Stock issued or issuable upon the exercise of the Bridge Note and the
Bridge Warrants, and (iii) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with
respect to, or in exchange for or in replacement of the shares referenced
in (i) and (ii) above, excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which his rights under this
Section 1 are not assigned.
The following definitions are added after Section 1.1(i) of the Investors'
Rights Agreement.
"(j) The term `Bridge Note' means the promissory note executed and
delivered by Company to Big Star pursuant to the Credit Agreement dated as
of March 16, 2000 between Company and Big Star, as amended, restated,
modified or supplemented from time to time (the "Bridge Credit Agreement").
(k) The term `Bridge Warrants' means the Bridge Warrant dated March 16,
2000 issued by the Company to Big Star and any additional Bridge Warrants
issued to Big Star pursuant to the Bridge Credit Agreement (as defined in
Section 1.1(j) above).
2. Right of First Offer. The Investors acknowledge that the Company has
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satisfied its obligations to the Major Investors pursuant to Section 2 of
the Investors' Rights Agreement in connection with the issuance of the
Bridge Note and the Bridge Warrants.
3. Miscellaneous.
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3.1 Successors and Assigns. This Amendment and the rights and obligations
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of the parties hereunder shall inure to the benefit of, and be binding
upon, their respective successors, assigns and legal representatives.
3.2 Governing Law. This Amendment shall be governed by and construed
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under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
3.3 Counterparts. This Amendment may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which,
when taken together, shall constitute one and the same instrument.
3.4 Titles and Subtitles. The titles and subtitles used in this Amendment
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are used for convenience only and are not to be considered in construing or
interpreting this Amendment.
3.5 Expenses. If any action at law or in equity is necessary to enforce
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or interpret the terms of this Amendment, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements
in addition to any other relief to which such party may be entitled.
3.6 Amendments and Waivers. Any term of this Amendment may be amended and
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the observance of any term of this Amendment may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written
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consent of the Company and the holders of a majority of the Registrable
Securities then outstanding. Any amendment or waiver effected in accordance
with this paragraph shall be binding upon each holder of any Registrable
Securities then outstanding, each future holder of all such Registrable
Securities, and the Company.
3.7 Severability. If one or more provisions of this Amendment are held to
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be unenforceable under applicable law, such provision shall be excluded
from this Amendment and the balance of the Amendment shall be interpreted
as if such provision were so excluded and shall be enforceable in
accordance with its terms.
3.8 Entire Agreement; Amendment; Waiver. This Amendment constitutes the
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entire agreement between the parties hereto with respect to the subject
matter hereof.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first written above.
AMERIGON INCORPORATED,
a California corporation
By: ____________________________
Name:
Title:
INVESTORS:
WESTAR CAPITAL II LLC
By: ____________________________
Name:
Title:
BIG BEAVER INVESTMENTS LLC
By: ____________________________
Name:
Title:
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