Exhibit 10.6
EXECUTION VERSION
FIRST AMENDMENT
TO OPTION AGREEMENT
THIS FIRST AMENDMENT TO OPTION AGREEMENT (this "Amendment") is dated
as of January __, 2001 and entered into by and among Amerigon Incorporated, a
California corporation (the "Holder"), BSST, LLC, a Delaware limited liability
company (the "Company"), and Xx. Xxx X. Xxxx, the sole member of the Company
("Xx. Xxxx") and is made with reference to that certain Option Agreement, dated
as of September 4, 2000 (the "Option Agreement"), by and among the Holder, the
Company and Xx. Xxxx. Capitalized terms used herein without definition shall
have the same meanings herein as set forth in the Option Agreement.
RECITALS
WHEREAS, the Holder's Option to purchase 2,000 Series A Preferred
Units of the Company expires on January 31, 2001;
WHEREAS, the Holder, the Company and Xx. Xxxx desire to amend the
Option Agreement to permit the Holder to change, once a month for up to four
months, the date on which the Option expires; and
WHEREAS, as consideration for each change in the period in which the
Option is exercisable, the Holder agrees to deliver cash payments to the Company
in accordance with the schedule set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE OPTION AGREEMENT
X. Xxxxx of Option. Section 1 of the Option Agreement is hereby
amended by (i) deleting the reference to "Option Exercise Price" contained
therein and substituting "Option Exercise Consideration" therefor and (ii)
deleting the last sentence thereof in its entirety and substituting the
following sentence thereof:
"The Option Fee and any Option Extension Fee shall be fully
refundable to the Holder in the event that Xx. Xxxx is no longer an employee of
the Company, but in all other circumstances shall be non-refundable."
B. Exercise of Option. Section 2 of the Option Agreement is hereby
amended by deleting it in its entirety and substituting the following therefor:
"2. Exercise of Option.
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(a) "Option Expiration Date" shall mean January 31, 2001;
provided, however, that the Option Expiration Date shall mean the "Resulting
Option Expiration Date" specified in the table below if the Holder pays the
applicable Option Extension Fee on or before the Option Expiration Date in
effect immediately prior to such payment.
Option Expiration Date Option Extension Fee Resulting Option Expiration
Previously in Effect Date
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January 31, 2001 $ 60,000 February 28, 2001
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February 28, 2001 $ 80,000 March 31, 2001
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March 31, 2001 $100,000 April 30, 2001
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April 30, 2001 $120,000 May 31, 2001
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(b) The Option may be exercised by the Holder at any time after
the date hereof, but no later than the then- applicable Option Expiration Date
(the "Option Exercise Period").
(c) The Holder may exercise the Option by delivering written
notice to the Company during the Option Exercise Period of the Holder's
intention to exercise the Option. The date, if any, on which the Holder shall be
deemed to have exercised the Option shall be the date within the Option Exercise
Period on which the Holder's written notice to the Company has been effectively
received by the Company pursuant to Section 11(b) (the "Exercise Date"),
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whereupon such Option exercise shall become irrevocable."
C. Option Exercise Consideration. Section 3 of the Option
Agreement is hereby amended by deleting it in its entirety and substituting the
following therefor:
"3. Option Exercise Consideration. The consideration $2,000,000
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minus (b) the sum of (i) the Option for exercise of the Option Units shall be a
Fee and (ii) the aggregate amount of any Option commitment by the Holder
("Option Exercise Extension Fees paid to Company prior to the Consideration") to
pay to the Company, in accordance Exercise Date." with the schedule set forth in
Section 5, an amount (the "Commitment Amount") equal to (a) $2,000,000 minus (b)
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the sum of (i) the Option Fee and (ii) the aggregate amount of any Option
Extension Fees paid to Company prior to the Exercise Date."
SECTION 2. REPRESENTATIONS AND WARRANTIES
In order to induce the parties to enter into this Amendment, each
party hereby represents and warrants to each other party that:
(a) such party has all requisite power and authority to enter into
this Amendment and to carry out the transactions contemplated by, and
perform its
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obligations under, the Option Agreement as amended by this Amendment (the
"Amended Agreement");
(b) the execution and delivery of this Amendment and the
performance of the Amended Agreement have been duly authorized by all
necessary action on the part of such party;
(c) the execution and delivery by each party of this Amendment and
the performance by each party of the Amended Agreement do not and will not
(i) violate any provision of any law or any governmental rule or regulation
applicable to such party, the organizational documents, if any, of such
party or any order, judgment or decree of any court or other agency of
government binding on such party, (ii) conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under
any contractual obligation of such party, (iii) result in or require the
creation or imposition of any lien upon any of the properties or assets of
such party, or (iv) require any approval of stockholders or members, other
than consents that have been obtained, or any approval or consent of any
person under any contractual obligation of such party;
(d) the execution and delivery by each party of this Amendment and
the performance by such party of the Amended Agreement do not and will not
require any registration with, consent or approval of, or notice to, or
other action to, with or by, any federal, state or other governmental
authority or regulatory body;
(e) this Amendment and the Amended Agreement have been duly
executed and delivered by such party and are the legally valid and binding
obligations of such party, enforceable against such party in accordance
with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors' rights generally or by equitable principles relating to
enforceability.
(f) all representations and warranties of such party contained in
the Option Agreement are true, correct and complete in all material
respects on and as of the date hereof except to the extent such
representations and warranties specifically relate to an earlier date, in
which case they were true, correct and complete in all material respects on
and as of such earlier date; and
(g) each party has performed all covenants and agreements to be
performed on their part prior to the date hereof as set forth in the Option
Agreement.
SECTION 3. MISCELLANEOUS
A. Reference to and Effect on the Option Agreement.
(i) Except as specifically amended by this Amendment, the Option
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
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(ii) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy under,
the Option Agreement.
B. Headings. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
C. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. Effectiveness. This Amendment shall become effective upon
the execution of counterparts hereof by the Holder, the Company and Xx. Xxxx and
receipt by the Holder, the Company and Xx. Xxxx of written or telephonic
notification of such execution and authorization of delivery thereof.
E. Counterparts. This Amendment may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
[signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
AMERIGON INCORPORATED
By: ________________________________
Name:
Title:
BSST, LLC
By: ________________________________
Name:
Title:
XX. XXX X. XXXX
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