EXHIBIT 10
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AGREEMENT AND CONSENT
This Agreement and Consent is made as of February 25, 2002, by
and among Amerigon Incorporated, a California corporation (the "Company"), and
the persons listed on the signature pages hereto (collectively, the
"Investors").
RECITALS
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WHEREAS, concurrent with the delivery of this Agreement and Consent,
the Company, as part of a private placement of shares and warrants with the
Investors (other than Westar Capital II, LLC), has issued an aggregate of
6,053,970 shares of Common Stock and an aggregate of 3,576,990 warrants
(including 550,005 warrants to the placement agent) (the "Warrants") to purchase
shares of Common Stock (the "Private Placement");
WHEREAS, as a result of the Private Placement, the Company has
10,771,230 shares of Common Stock outstanding and the Investors own 5,687,302
shares of Common Stock or more than 50% of the outstanding shares of Common
Stock of the Company;
WHEREAS, the existing Amended and Restated Articles of Incorporation of
the Company authorize 20,000,000 shares of Common Stock and the Company desires
to increase the number of authorized shares of Common Stock to 30,000,000;
WHEREAS, the total number of shares of Common Stock (including the
Shares and Warrant Shares issued in the Private Placement) that the Company has
outstanding and reserved for issuance upon conversion/exercise of Series A
Preferred, options and warrants is 23,298,583 (see table below):
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CURRENT: AFTERWARD:
Total Number of Shares Outstanding and Number of Shares Total Number of Shares Outstanding
Reserved Agreed Not to be Converted and Reserved
for Issuance from for Issuance
(including Private Placement Shares Series A Preferred Stock (including Private Placement Shares
and Warrant Shares) and Warrant Shares)
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23,298,583 3,398,582 19,900,001
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WHEREAS, until such time as the Company has increased its authorized
shares of Common Stock from 20,000,000 to 30,000,000, Westar Capital II LLC
("Westar") and Big Beaver Investments LLC ("BBI"), as the holders of the Series
A Preferred Stock, have each agreed hereby not to convert a portion of their
respective shares of Series A Preferred Stock convertible into an aggregate of
3,398,582 shares of Common Stock (by Westar with respect to 2,686,567 shares and
by BBI with respect to 712,015 shares); and
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WHEREAS, the Board of Directors of the Company has adopted resolutions
to amend the existing Amended and Restated Articles of Incorporation of the
Company to increase the number of authorized shares of Common Stock from
20,000,000 to 30,000,000 (the "Amendment") and, until the effectiveness of the
Amendment, withdraw the prior reservation of 3,398,582 shares of Common Stock
for issuance upon conversion of the Series A Preferred Stock.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Company and the Investors do
hereby agree as follows:
SECTION 1. WAIVER OF SHARE RESERVATION AND AGREEMENT NOT TO CONVERT.
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Westar and BBI, as the owners of all of the outstanding shares of
Series A Preferred Stock, hereby agree that: (a) Westar waives its right to
convert all of its shares of Series A Preferred Stock convertible into 2,686,567
shares of Common Stock; (b) BBI waives its right to convert that portion of its
shares of Series A Preferred Stock convertible into 712,015 shares of Common
Stock (the waivers in (a) and (b) above are applicable to an aggregate of
3,398,582 shares of Common Stock); and (c) each of Westar and BBI waive the
requirement under the Certificate of Determination of Rights, Preferences and
Privileges of the Series A Preferred Stock of the Company (the "Certificate of
Determination") that there be sufficient reserves of Common Stock to convert all
of their respective shares of Series A Preferred Stock. The waivers set forth in
subsection (a), (b) and (c) of this Section 1 shall be effective until such time
as the Amendment is filed in the office of the California Secretary of State at
which time such waivers shall terminate.
The Company agrees, at the request of Westar or BBI, to promptly
prepare and file with the Securities and Exchange Commission an Information
Statement on Form 14C, to distribute such Information Statement to shareholders
as required and 21 calendar days after the distribution of the Information
Statement to shareholders to file the Amendment with the California Secretary of
State. If not requested by Westar or BBI to prepare, file and circulate such
Information Statement, the Company shall include in the proxy statement prepared
for its 2002 Annual Meeting of Shareholders a proposal to adopt the Amendment
or, if permitted as part of a proxy statement or by separate document included
in the proxy statement mailing, the information (with respect to the Amendment)
required by an Information Statement on Form 14C. If the Amendment is submitted
to a vote, the Company shall recommend that shareholders vote for the Amendment
and upon obtaining the required vote, shall file the Amendment with the
California Secretary of State. If the information concerning the Amendment is
included in the proxy statement in the format of an Information Statement or a
separate Information Statement concerning the Amendment is included in the proxy
statement mailing, then 21 calendar days after the distribution of such proxy
statement and/or information statement the Company will file the Amendment with
the California Secretary of State.
SECTION 2. CONSENT AND AGREEMENT TO VOTE FOR THE AMENDMENT.
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The undersigned, effective upon the closing of the Private Placement,
hereby irrevocably consent to the Amendment. The Investors hereby agree to vote
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for the Amendment if the Amendment is submitted to a vote of the Company's
shareholders.
SECTION 2. GOVERNING PROVISIONS.
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2.1 This Agreement and Consent shall be governed by and construed in
accordance with the laws of the State of California.
2.2 This Agreement and Consent may be executed in one or more
counterparts, each of which, when taken together, shall constitute but one of
the same agreement. This Agreement may not be amended without the written
consent of each of the parties hereto.
IN WITNESS WHEREOF, the Company and the Investors have caused this
Agreement and Consent to be duly executed and delivered as of the date first
written above.
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AMERIGON INCORPORATED
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
SPECIAL SITUATIONS FUND III, L.P.
(1,866,700 shares of Common Stock after
the Private Placement)
By: /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: Managing Director
SPECIAL SITUATIONS CAYMAN FUND, L.P.
(566,700 shares of Common Stock after the Private
Placement )
By: /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: Managing Director
SPECIAL SITUATIONS PRIVATE EQUITY FUND, L.P.
(933,300 shares of Common Stock after
the Private Placement)
By: /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: Managing Director
SPECIAL SITUATIONS TECHNOLOGY FUND, L.P.
(300,000 shares of Common Stock after
the Private Placement)
By: /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: Managing Director
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BIG BEAVER INVESTMENTS LLC
(4,500 shares of Series A Preferred Stock
and 1,720,602 shares of Common Stock after the
Private Placement and 150,000 other shares
of Common Stock )
By: /s/ XXXX XXXXX
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Name: Xxxx Xxxxx
Title: Treasurer
WESTAR CAPITAL II, LLC
(4,500 shares of Series A Preferred Stock
and 150,000 shares of Common Stock)
By: Westar Capital Associates II, LLC,
a Delaware limited liability company
Its Manager
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: Managing Member
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