EXHIBIT 5
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THIRD AMENDMENT TO THE INVESTORS' RIGHTS AGREEMENT
This Third Amendment to the Investors' Rights Agreement (this
"Amendment"), effective as of December 1, 2001, is by and among Amerigon
Incorporated, a California corporation (the "Company"), Big Beaver Investments
LLC, a Delaware limited liability company (the "Lender") and Westar Capital II
LLC, a Delaware limited liability company ("Westar") and amends the Investors'
Rights Agreement dated as of June 8, 1999 among the Company, the Lender and
Westar (as previously amended through the date hereof, 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 Lender, have entered into that certain
Credit Agreement dated as of September 20, 2001 and as amended by the First
Amendment to the Credit Agreement effective as of December 1, 2001 (as each may
be amended, modified, renewed or extended from time to time, collectively the
"2001 Credit Agreement");
WHEREAS, the Amended and Restated Convertible Promissory Note issued by
Company pursuant to the 2001 Credit Agreement is convertible into Common Stock
of the Company as provided therein;
WHEREAS, in order to induce the Lender to enter into the 2001 Credit
Agreement, the Company has issued to the Lender that certain Amended and
Restated Bridge Loan Warrant, pursuant to which the Company has agreed to issue
to the Lender certain warrants to purchase shares of Common Stock of the Company
as provided therein;
WHEREAS, the Investors' Rights Agreement was previously amended by the
parties on March 16, 2000 and September 20, 2001; and
WHEREAS, the Company desires to amend and restate the definitions of
"Registrable Securities," "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:
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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 Notes
and the Bridge Warrants, and (iii) any Common Stock of the Company
issued (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 Notes' means the Promissory Note executed and
delivered by the Company to Big Star Investments LLC ("Big Star")
pursuant to the Credit Agreement dated as of March 16, 2000 between the
Company and Big Star (the "2000 Bridge Credit Agreement"), and the
Amended and Restated Convertible Promissory Note executed and delivered
by the Company to the Lender pursuant to the Credit Agreement dated as
of September 20, 2001 and as amended by the First Amendment to the
Credit Agreement effective as of December 1, 2001 between Company and
the Lender (collectively, the "2001 Bridge Credit Agreement"), as each
such agreement or document may be amended, restated, modified or
supplemented from time to time.
(k) The term `Bridge Warrants' means the Bridge Loan Warrants dated
March 16, 2000 issued by the Company to each of the Lender and Westar
and any additional warrants to purchase Common Stock of the Company
issued to each of the Lender and Westar pursuant to the 2000 Bridge
Credit Agreement, and the Amended and Restated Bridge Loan Warrant
effective as of December 1, 2001 issued by the Company to the Lender
and any additional warrants to purchase Common Stock of the Company
issued to the Lender pursuant to the 2001 Bridge Credit Agreement, as
each such agreement or document may be amended, restated, modified,
supplemented or replaced from time to time."
2. Right of First Offer. The Lender and Westar acknowledge that the
Company has satisfied its obligations to the Major Investors pursuant
to Section 2 of the Investors' Rights Agreement in connection with the
issuance of the Bridge Notes and the Bridge Warrants.
3. Miscellaneous.
3.1 Successors and Assigns. This Amendment and the rights and
obligations 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
under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely
within California.
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3.3 Counterparts. This Amendment may be executed in two or more
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 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
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 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 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 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
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: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
BIG BEAVER INVESTMENTS LLC,
a Delaware limited liability company
By: /s/ XXXX XXXXX
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Name: Xxxx Xxxxx
Title: Treasurer
WESTAR CAPITAL II LLC,
a Delaware limited liability company
By: Westar Capital Associates II, LLC,
its Manager
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Managing Partner
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