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EXHIBIT 10.43
EXECUTION COPY
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT ("Agreement"), dated as of March 29,
1999, is entered into between Code-Alarm, Inc., a Michigan corporation (the
"Company") and General Electric Capital Corporation, a Delaware corporation (the
"Holder").
R E C I T A L S:
WHEREAS, on October 24, 1997, the Company issued to the Holder
that certain Warrant to Purchase Common Stock of Code-Alarm, Inc. (Warrant No.
A-1) (the "Warrant") pursuant to that certain Warrant Purchase Agreement of even
date therewith between the Company and the Holder;
WHEREAS, pursuant to that certain Credit Agreement of even
date herewith by and among Pegasus Partners, L.P., Pegasus Related Partners, L.
P. (collectively, the "Pegasus Funds"), the Holder and the Company (the "Pegasus
Credit Agreement"), the Pegasus Funds and the Holder have agreed to make certain
term loans to the Company to assist in financing the Company's working capital
requirements;
WHEREAS, pursuant to that certain Amendment No. 5 and Waiver
No. 8 to Credit Agreement of even date herewith (the "GECC Amendment"), the
Holder has agreed to certain concessions favorable to the Company, including,
without limitation, waivers of certain defaults by the Company, with respect to
that certain Credit Agreement dated as of October 24, 1997 among the Company,
the other "Credit Parties" from time to time party thereto, the "Lenders" from
time to time party thereto (including the Holder in its capacity as a Lender),
and General Electric Capital Corporation as "Agent" for the Lenders (as amended
from time to time, the "GECC Credit Agreement"), the Holder has provided and
continues to provide the Company with loans and other financial accommodations
subject to the terms and conditions thereof;
WHEREAS, in order to induce the Holder to enter into the
Pegasus Credit Agreement and the GECC Amendment, the Company has agreed to enter
into this Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt
of which is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. Undefined capitalized terms which are
used herein shall have the meanings ascribed to such terms the Warrant or, if
not defined therein, in the GECC Credit Agreement.
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2. AMENDMENT OF THE WARRANT. The Warrant is hereby
amended to change the Exercise Price from $1.0350702 per share of Common Stock
to the following:
(a) From and after the date hereof, Exercise Price under the
Warrant shall be $0.523505 per share of Common Stock, subject to
adjustment as provided below.
(b) If, on October 31, 1999, any "Obligations" (as defined in
the Pegasus Credit Agreement) remain outstanding, then from and after
such date, the Exercise Price under the Warrant shall be $.423505,
subject to adjustment as provided below.
(c) If, on January 31, 2000, any Obligations remain
outstanding, then from and after such date, the Exercise Price under
the Warrant shall be $.323505, subject to adjustment as provided below.
(d) If, on April 30, 2000, any Obligations remain outstanding,
then from and after such date, the Exercise Price under the Warrant
shall be $.223505, subject to adjustment as provided below.
(e) If, on July 31, 2000, any Obligations remain outstanding,
then from and after such date, the Exercise Price under the Warrant
shall be $.123505, subject to adjustment as provided below.
(f) If, on October 31, 2000, any Obligations remain
outstanding, then from and after such date, the Exercise Price under
the Warrant shall be $.023505, subject to adjustment as provided below.
(g) If, on January 31, 2001, any Obligations remain
outstanding, then from and after such date, the Exercise Price under
the Warrant shall be $.0001.
3. AMENDED EXERCISE PRICE SUBJECT TO ANTI-DILUTION; NO
INCREASE IN EXERCISE PRICE. The Exercise Price of the Warrant as specified in
paragraphs (a) through (g) of Section 2 hereof shall be equitably further
adjusted to the extent provided in Section 4 of the Warrant; provided, however,
that (a) no such adjustment shall reduce the Exercise Price of the Warrant to an
amount less than $.0001 per share of Common Stock and (b) the Exercise Price
shall not be adjusted under Section 4 of the Warrant as a result of the
modifications to the Pegasus Funds' warrants pursuant to that certain Amendment
Agreement of even date herewith among the Pegasus Funds and the Company. No
adjustment described in Section 2 hereof to the Exercise Price shall result in
an increase in the Exercise Price of the Warrant at any time.
4. LEGEND. Concurrently with the execution hereof, the
following legend shall be placed on the face of the Warrant:
"This Warrant has been amended pursuant to the Amendment
Agreement dated as of March 29, 1999 among Code Alarm Inc.
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and General Electric Capital Corporation, a copy of which is
available for inspection at the offices of Code-Alarm Inc."
5. WARRANT TO REMAIN IN FULL FORCE AND EFFECT. Except as
set forth herein, the Warrant shall continue in full force and effect in
accordance with its terms and the Warrant, as amended hereby, is hereby ratified
and confirmed by the Company and accepted by the Holder.
6. REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants to the Holder as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan and has
all requisite corporate power and authority and all necessary governmental
approvals to own, lease and operate its properties and to carry on its business
as now being conducted, except where the failure to have such governmental
approvals could not reasonably be expected to have a Material Adverse Effect.
The Company is duly qualified or licensed to do business and in good standing in
each jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or licensing
necessary, except where the failure to be so duly qualified or licensed and in
good standing could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect or prevent the Company from
consummating the transactions contemplated by this Agreement.
(b) The Company has heretofore made available to the Holder a
complete and correct copy of its articles of incorporation, as amended, and its
by-laws, as currently in effect. Each such document is in full force and effect
and no other organizational documents are applicable to or binding upon the
Company.
(c) The Company has full corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by the Company of
this Agreement and the consummation by it of the transactions contemplated
hereby have been duly authorized by the Board of Directors of the Company and no
other corporate or shareholder action on the part of the Company is necessary to
authorize the execution, delivery or performance by the Company of this
Agreement or the consummation by it of the transactions contemplated hereby.
This Agreement has been duly executed and delivered by the Company and (assuming
due and valid authorization, execution and delivery hereof by the other parties
hereto and thereto) is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except that such enforcement
may be subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws, now or hereafter in effect, affecting creditors' rights
generally.
(d) None of the execution, delivery or performance of this
Agreement by the Company or the consummation by the Company of the transactions
contemplated hereby, nor compliance by the Company with any of the provisions
hereof will (i) conflict with or result in any breach of any provision of the
Company's articles of incorporation, as amended, or the by-laws or
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other organizational documents of the Company, (ii) require on the part of the
Company any filing with, or permit, authorization, consent or approval of, any
court, arbitral tribunal, administrative agency or other governmental or
regulatory authority or agency, including, without limitation, any consent or
approval of any federal, state, local or foreign insurance industry agency,
commission or other governing body, except for in the case of this clause (ii),
(A) filings, permits, authorizations, consents and approvals as may be required
under federal and state securities laws, and the laws of other states in which
the Company is qualified to do or is doing business, and (B) where the failure
to obtain such permits, authorizations, consents or approvals or to make such
filings, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect or prevent the Company from consummating the
transactions contemplated hereby, (iii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration) under, any
of the terms, conditions or provisions of any material indenture, mortgage, deed
of trust, credit agreement, note or other evidence of indebtedness or other
material agreement, instrument or obligation to which the Company is a party or
by which it or any of its properties or assets may be bound or (iv) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to the
Company or any of its properties or assets.
7. DELIVERIES. Concurrently with the execution and
delivery of this Agreement, the Company shall deliver to the Holder the
following documents:
(a) a certificate dated the date hereof, signed by the
appropriate authorized officers of the Company with respect to the certification
of the articles of incorporation of the Company, its By-Laws, resolutions
authorizing the transactions contemplated hereby, incumbency and such other
matters as the Holder shall reasonably request; and
(b) a legal opinion of Pepper Hamilton LLP, counsel for the
Company, in form acceptable to the Holder, opining that (i) the Company has been
duly incorporated and is validly existing and in good standing under the laws of
the State of Michigan, and has all requisite corporate power and authority to
own its properties and assets and conduct its business as currently conducted,
(ii) this Agreement has been duly executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except that such enforcement may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws, now or hereafter in effect, affecting creditors' rights
generally, and (iii) the execution, delivery and performance of this Agreement,
and the issuance of Common Stock upon exercise of the Warrant, as amended by
this Agreement, will not (A) result in a breach of any of the terms, conditions
or provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, credit agreement, note or other evidence of
indebtedness or other material agreement, instrument or obligation to which the
Company is a party and which is known to such counsel, (B) contravene the
articles of incorporation, as amended, or by-laws of the Company, or (C) to the
knowledge of such counsel, contravene any order binding on or judgment against
the Company or its properties or businesses.
8. PAYMENT OF FEES AND EXPENSES. Concurrently with the
execution and delivery of this Agreement, the Company shall pay all fees,
expenses and disbursements of the
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Holder in connection with the transactions contemplated by this Agreement and
all outstanding fees, expenses and disbursements of the Holder payable by the
Company pursuant to the GECC Credit Agreement, including in each case the
outstanding fees and expenses of Sidley & Austin, counsel to the Holder.
9. GOVERNING LAW. In all respects, including all matters
of construction, validity and performance, this Agreement and the obligations
arising hereunder shall be governed by, and construed and enforced in accordance
with, the laws of the State of Michigan applicable to contracts made and
performed in such state, without regard to the principles thereof regarding
conflict of laws, and any applicable laws of the United States of America.
10. COUNTERPARTS. For the convenience of the parties, any
number of counterparts of this Agreement may be executed by any one or more
parties hereto, and each such executed counterpart shall be, and shall be deemed
to be, an original, but all of which shall constitute, and shall be deemed to
constitute, in the aggregate, but one and the same instrument.
IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the day and year first written above.
CODE ALARM, INC.
By:
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Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
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Name:
Title:
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