EXHIBIT 4.4
BATTERY EXPRESS, INC.
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Second Amended and Restated Registration Rights Agreement (the
"Agreement") is made as of the 30th day of July, 1999, by and among Battery
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Express, Inc., a California corporation doing business as iGo Corporation (the
"Company"), the holders of Preferred Stock (as defined below) listed on Schedule
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I hereto (the "Purchasers"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ / Power Express
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L.P. (the "Warrant holders"), as owners of warrants to acquire an aggregate
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13,500 shares of Common Stock (as such term is defined herein) of the Company
(the "Warrants") and the Company's founders set forth in Schedule II hereto
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(such shareholders being herein referred to individually as a "Founder" and
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collectively as the "Founders").
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WHEREAS, the Company and certain of the Purchasers entered into a
Registration Rights Agreement dated June 14, 1996 as amended and restated
October 22, 1998 (the "Original Agreement") in connection with the prior
Company's sales of Preferred Stock;
WHEREAS, the Company and certain of the Purchasers are entering into an
agreement of even date herewith with respect to the Company's sale and issuance
of Series C Preferred Stock; and
WHEREAS, the Company and such original Purchasers wish to make available
the registration rights set forth herein as a further inducement for the
remaining Purchasers to purchase such shares of Series C Preferred Stock from
the Company;
NOW THEREFORE, in consideration of the foregoing and the mutual agreements
set forth herein, the Company and the Purchasers hereby agrees that the Original
Agreement shall be amended and restated in its entirety to read as set forth
herein:
1. Certain Definitions. As used herein, the following terms shall have
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the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
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other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, no par value, of the
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Company, as constituted as of the date of this Agreement, subject to adjustment
pursuant to the provisions of Section 11 hereof.
"Conversion Shares" shall mean the shares of Common Stock issued upon
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conversion of the Preferred Stock.
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"Exchange Act" shall mean the Securities Exchange Act of 1934 or any
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similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Founders" shall have the meaning ascribed thereto in the introductory
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paragraph to this Agreement.
"Founders Stock" shall mean the 1,047,600 shares of Common Stock held
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by the Founders as of the date of this Agreement, subject to the provisions of
Section 4 hereof.
"Public Sale" shall mean any sale of Common Stock to the public
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pursuant to an offering registered under the Securities Act or to the public
pursuant to the provisions of Rule 144 (or any successor or similar rule)
adopted under the Securities Act.
"Preferred Stock" shall mean (a) 611,250 shares of Series A Preferred
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outstanding as of the date hereof, (b) 500,000 shares of Series B Preferred
Stock outstanding as of the date hereof, and (c) up to 141,762 shares of Series
C Preferred Stock issued or issuable by the Company pursuant to a Series C
Preferred Stock Purchase Agreement of even date herewith by and among the
Company and certain of the Purchasers (provided that such Series C Preferred
Stock shall be included only to the extent that the purchaser thereof has
delivered to the Company an executed copy of this Agreement).
"Registration Expenses" shall mean the expenses so described in
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Section 9 hereof.
"Restricted Stock" shall mean, subject to the provisions of Section 4
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hereof, (i) the Preferred Shares, (ii) the Conversion Shares, (iii) the Warrant
Shares, and (iv) any securities issued upon exchange, adjustment or transfer of
any such shares, the certificates for which are required by the provisions of
Section 2 hereof to bear the legend set forth in such Section.
"Securities Act" shall mean the Securities Act of 1933 or any similar
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federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 9
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hereof.
"Warrant Shares" shall mean shares of Common Stock issued upon
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exercise of the Warrants.
2. Restrictive Legend. Each certificate representing the Preferred
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Stock, each certificate representing the Conversion Shares, each certificate
representing the Warrant Shares, each certificate representing the Founders
Stock, and, other than in a Public Sale or as otherwise provided in Section 3
hereof, each certificate issued upon exchange or transfer of any Preferred
Stock, Conversion Shares, Warrant Shares or Founders Stock, as the case may be,
shall be stamped or otherwise imprinted with a legend substantially in the
following form:
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"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER THAT ACT
OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
3. Notice of Proposed Transfer. Prior to any proposed transfer of any
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Restricted Stock or Founders Stock (other than under the circumstances described
in Section 5, 6 or 7 hereof) , the holder thereof shall give written notice to
the Company of its intention to effect such transfer. Each such notice shall
describe the manner of the proposed transfer and, if requested by the Company,
shall be accompanied by an opinion of counsel reasonably satisfactory to the
Company (it being agreed that Reboul, MacMurray, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Kristol;
Wilson, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇; ▇▇▇▇▇▇ Godward LLP; and ▇▇▇▇ ▇▇▇▇ Peek
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ shall be satisfactory) to the effect that the
proposed transfer of such Restricted Stock or Founders Stock, as the case may
be, may be effected without registration under the Securities Act, whereupon the
holder of such Restricted Stock or Founders Stock, as the case may be, shall be
entitled to transfer such Restricted Stock or Founders Stock, as the case may
be, in accordance with the terms of its notice; provided, however, that in the
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case of any Purchaser that is a partnership, no such opinion or other
documentation shall be required if such notice shall cover a transfer by such
partnership to its partners. Each certificate representing the Restricted Stock
or Founders Stock, as the case may be, transferred as above provided shall bear
the legend set forth in Section 2, unless (i) such transfer is in accordance
with the provisions of Rule 144 (or any other rule permitting public sale
without registration under the Securities Act) or (ii) the opinion of counsel
referred to above is to the further effect that the transferee and any
subsequent transferee (other than an affiliate of the Company) would be entitled
to transfer such securities without registration under the Securities Act.
The foregoing restrictions on transferability of Restricted Stock and
Founders Stock shall terminate as to any particular shares of Restricted Stock
or Founders Stock, as the case may be, when such shares shall have been
effectively registered under the Securities Act and sold or otherwise disposed
of in accordance with the intended method of disposition by the seller or
sellers thereof set forth in the registration statement concerning such shares.
Whenever a holder of Restricted Stock or Founders Stock is able to demonstrate
to the Company (and its counsel) that the provisions of Rule 144(k) of the
Securities Act are available to such holder without limitation, such holder of
Restricted Stock or Founders Stock, as the case may be, shall be entitled to
receive from the Company, without expense, a new certificate not bearing the
restrictive legend set forth in Section 2.
4. Unavailability of Registration Rights. The shares of Restricted Stock
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or Founders Stock held by any current or subsequent holder shall not be deemed
Restricted Stock or Founders Stock for the purposes of Sections 5, 6 and 7
hereof, nor shall the registration rights granted pursuant to Sections 5, 6 and
7 hereof be available to any such holder of Restricted Stock or Founders Stock,
if, at the time such holder seeks to have his shares registered, the Company is
able to demonstrate to the satisfaction of such holder and such holder's
counsel, that such holder is able to transfer, in accordance with Rule 144 of
the Securities Act, all of the shares of Restricted Stock or Founders Stock, as
the case may be, owned by him in a public sale or sales over a 90-day period and
without registering such securities under the Securities Act.
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5. Required Registration.
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(a) At any time following the earlier to occur of (i) the date nine
months after the date on which the Company shall have completed an initial
public offering of shares of its Common Stock or shall have otherwise become
subject to the reporting requirements under the Securities Exchange Act of 1934,
and (ii) June 13, 2001, the holders of Restricted Stock constituting at least
66 2/3% of the total Restricted Stock outstanding at such time (treating for the
purpose of such computation the holders of Preferred Shares as the holders of
the Conversion Shares then issuable upon conversion of such Preferred Shares)
may request the Company to register under the Securities Act all or any portion
of the Restricted Stock held by such requesting holder or holders for sale in
the manner specified in such notice, provided, however, that, in the event that
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there is a registration, the shares requested to be registered shall not be less
than 25% of the Restricted Stock outstanding at such time; provided, further,
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however, that the only securities which the Company shall be required to
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register pursuant hereto shall be shares of Common Stock.
(b) Promptly following receipt of any notice under Section 5(a), the
Company shall notify any holders of Restricted Stock from whom notice has not
been received and holders of Founders Stock and shall use its reasonable best
efforts to register under the Securities Act, for public sale in accordance with
the method of disposition specified in such notice from requesting holders, the
number of shares of Restricted Stock specified in such notice (and in any
notices received from other holders of Restricted Stock and holders of Founders
Stock within 20 days after their receipt of such notice from the Company). If
such method of disposition shall be an underwritten public offering, (i) the
Company may designate the managing underwriter of such offering, subject to the
approval of the selling holders of a majority of the Restricted Stock (treating
for the purpose of such computation the holders of Preferred Shares as the
holders of the Conversion Shares then issuable upon conversion of such Preferred
Shares), which approval shall not be unreasonably withheld, and (ii) as and to
the extent that, in the opinion of the managing underwriter, the Restricted
Stock and Founders Stock so requested to be registered would adversely affect
the marketing of such Restricted Stock, the number of shares of Restricted Stock
or Founders Stock or both, as the case may be, so included shall be reduced,
first, pro rata among the requesting holders of Founders Stock based upon the
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number of shares of Founders Stock requested to be registered, and second, pro
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rata among the requesting holders of Restricted Stock based upon the number of
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shares of Restricted Stock requested to be registered. The Company shall be
obligated to register Restricted Stock capital pursuant to Section 5(a) on two
occasions only and no more than once in any twelve-month period.
Notwithstanding anything to the contrary contained herein, each obligation of
the Company to register capital stock under this Section 5 shall be deemed
satisfied only when a registration statement covering all shares of Restricted
Stock (and, if applicable, Founders Stock) specified in notices received as
aforesaid, for sale in accordance with the method of disposition specified by
the requesting holder, shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto.
(c) In the event that the Board of Directors of the Company
determines in good faith that the filing of a registration statement pursuant to
Section 5(a) hereof would be detrimental
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to the Company, the Board of Directors may defer such filing for a period not to
exceed ninety (90) days. The Board of Directors may not effect more than one
such deferral during any twelve month period. The Board of Directors agrees to
promptly notify all requesting holders of any such deferral, and shall provide
to such holders an explanation therefor.
(d) The Company shall be entitled to include in any registration
statement referred to in this Section 5, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account, except as and to the extent that, in
the opinion of the managing underwriter (if such method of disposition shall be
an underwritten public offering), such inclusion would adversely affect the
marketing of the Restricted Stock (and, if applicable, Founders Stock) to be
sold. Except as provided in this paragraph (d), the Company will not effect any
other registration of its Common Stock, whether for its own account or that of
other holders, from the date of receipt of a notice from requesting holders
pursuant to this Section 5 until the completion of the period of distribution of
the registration contemplated thereby.
6. Form S-3 Registration.
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(a) If the Company shall receive from any holder or holders of
Restricted Stock, a written request or requests that the Company effect a
registration on Form S-3, at any time that the Company is entitled to use such
form, and any related qualification or compliance with respect to Restricted
Stock owned by such holder or holders, the reasonably anticipated aggregate
price to the public of which would equal at least $560,000, the Company will:
(i) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other holders of
Restricted Stock from whom notice has not been received and to holders of
Founders Stock; and
(ii) as soon as practicable, effect such registration (including,
without limitation, the execution of an undertaking to file post-effective
amendments appropriate qualifications under applicable blue sky or other
state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other government
requirements or regulations) as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of, such
holder's or holders' Restricted Stock as are specified in such request,
together with all or such portion of the Restricted Stock or Founders Stock
of any holder or holders thereof joining in such request as are specified
in a written request given within thirty (30) days after receipt of such
written notice from the Company, provided, however, that the only
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securities which the Company shall be required to register pursuant hereto
shall be shares of Common Stock. Subject to the foregoing, the Company
shall file a registration statement covering the Restricted Stock or
Founders Stock or both, as the case may be, so requested to be registered
as soon as practicable after receipt of the request or requests of the
holders of the Restricted Stock and Founders Stock, as the case may be.
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(b) The Company shall be obligated to register capital stock under
Section 6(a) on four occasions only and no more than twice in any twelve-month
period. Registrations effected pursuant to this Section 6 shall not be counted
as requests for registration effected pursuant to Section 5.
7. Incidental Registration. If the Company at any time (other than
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pursuant to Section 5 or Section 6 hereof) proposes to register any of its
Common Stock under the Securities Act for sale to the public, whether for its
own account or for the account of other security holders or both (except with
respect to registration statements on Form S-4 or S-8 or another form not
available for registering the Restricted Stock for sale to the public), it will
give written notice at such time to all holders of outstanding Restricted Stock
and Founders Stock of its intention to do so. Upon the written request of any
such holder, given within 20 days after receipt of any such notice by the
Company, to register any of its Restricted Stock or Founders Stock, as the case
may be (which request shall state the intended method of disposition thereof) ,
the Company will use its best efforts to cause the Restricted Stock or Founders
Stock or both, as the case may be, as to which registration shall have been so
requested to be included in the securities to be covered by the registration
statement proposed to be filed by the Company, all to the extent requisite to
permit the sale or other disposition by the holder (in accordance with its
written request) of such Restricted Stock or Founders Stock, as the case may be,
so registered. In the event that any registration pursuant to this Section 7
shall be, in whole or in part, an underwritten public offering of Common Stock,
any request by a holder pursuant to this Section 7 to register Restricted Stock
or Founders Stock, as the case may be, shall specify that either (i) such
Restricted Stock or Founders Stock, as the case may be, is to be included in the
underwriting on the same terms and conditions as the shares of Common Stock
otherwise being sold through underwriters under such registration or (ii) such
Restricted Stock or Founders Stock, as the case may be, is to be sold in the
open market without any underwriting, on terms and conditions comparable to
those normally applicable to offerings of common stock in reasonably similar
circumstances. The number of shares of Restricted Stock or Founders Stock or
both, as the case may be, to be included in such an underwriting may be reduced
(pro rata among the requesting holders based upon the number of shares so
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requested to be registered) if and to the extent that the managing underwriter
shall be of the opinion that such inclusion would adversely affect the marketing
of the securities to be sold by the Company therein, provided, however, that
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such number of shares of Restricted Stock or Founders Stock or both, as the case
may be, shall not be reduced if any shares are to be included in such
underwriting for the account of any person other than the Company or other than
a holder of Restricted Stock or Founders Stock, as the case may be.
Notwithstanding anything to the contrary contained in this Section 7, in
the event of a firm commitment underwritten initial public offering of Common
Stock of the Company, reasonably expected by the underwriters thereof to result
(i) in aggregate net proceeds to the Company of at least $15,000,000 and (ii) a
price to the public of at least $7.50 per share (appropriately adjusted to
reflect stock splits and dividends and stock combinations after the date
hereof), and a holder of Restricted Stock or Founders Stock does not elect, or
is not allowed (at the discretion of the underwriters thereof), to sell his
Restricted Stock or Founders Stock, as the case may be, to such underwriters of
the Common Stock of the Company in connection with such offering, such holder
shall refrain from selling such Restricted Stock or Founders Stock, as the case
may be, so registered pursuant to this Section 7 during the period of
distribution of the Common Stock of the company by such
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underwriters and the period in which the underwriting syndicate participates in
the after market; provided, however, that (a) each person or group having
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beneficial ownership of five percent (5%) or more of the Company's capital stock
and each executive officer and director of the Company shall have executed a
written "lock-up" agreement required by the managing underwriter of such public
offering with the same "lock-up" restrictions as provided herein, and (ii) that
such holder shall, in any event, be entitled to sell his Restricted Stock or
Founders Stock, as the case may be, commencing on the 180th day after the
effective date of such registration statement.
8. Registration Procedures and Expenses. If and whenever the Company is
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required by the provisions of Section 5, 6 or 7 hereof to use its reasonable
best efforts to effect the registration of any of the Restricted Stock or
Founders Stock or both, as the case may be, under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission a
registration statement (which, in the case of an underwritten public offering
pursuant to Section 5 hereof, shall be on Form S-1 or other form of general
applicability satisfactory to the managing underwriter selected as therein
provided) with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph (a) above and as shall
comply with the provisions of the Securities Act with respect to the disposition
of all Restricted Stock or Founders Stock or both, as the case may be, covered
by such registration statement in accordance with the sellers' intended method
of disposition set forth in such registration statement for such period;
(c) furnish to each seller and to each underwriter such number of
copies of the registration statement and the prospectus included therein
(including each preliminary prospectus) as such persons may reasonably request
in order to facilitate the public sale or other disposition of the Restricted
Stock or Founders Stock or both, as the case may be, covered by such
registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
or Founders Stock or both, as the case may be, covered by such registration
statement under the securities or blue sky laws of such jurisdictions as the
sellers of Restricted Stock or Founders Stock or both, as the case may be, or,
in the case of an underwritten public offering, the managing underwriter, shall
reasonably request, and use its best efforts to list all Restricted Stock and
Founders Stock covered by such registration statement on any securities exchange
on which any other securities of the same class as the Restricted Stock and
Founders Stock are then listed;
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(e) immediately notify each seller under such registration statement
and each underwriter, at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, of the happening of any event as a
result of which the prospectus contained in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(f) use its best efforts (if the offering is underwritten) to
furnish, at the request of any seller, on the date that Restricted Stock or
Founders Stock or both, as the case may be, is delivered to the underwriters for
sale pursuant to such registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters and to such seller, stating that such registration statement has
become effective under the Securities Act and that (A) to the best knowledge of
such counsel, no stop order suspending the effectiveness thereof has been issued
and no Proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act, (B) the registration statement, the
related prospectus, and each amendment or supplement thereof, comply as to form
in all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder (except that such
counsel need express no opinion as to financial statements contained therein or
any information provided by the underwriters or the sellers) and (C) to such
other effects as may reasonably be requested by counsel for the underwriters or
by such seller or its counsel, and (ii) a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in ail material respects with the applicable
accounting requirements-of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as to the
period ending no more than five business days prior to the date of such letter)
with respect to the registration in respect of which such letter is being given
as such underwriters or seller may reasonably request; and
(g) make available for inspection by each seller, any underwriter
participating in any distribution pursuant to such registration statement, and
any attorney, accountant or other agent retained by such seller or underwriter,
all financial and other records, pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors and employees to supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement and permit
such seller, attorney, accountant or agent to participate in the preparation of
such registration statement.
For purposes of paragraphs (a) and (b) above and of Section 5(d) hereof,
the period of distribution of Restricted Stock or Founders Stock or both, as the
case may be, in a firm commitment underwritten public offering shall be deemed
to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Restricted Stock
or Founders Stock or both, as the case may be, in any other registration shall
be deemed to extend until the earlier of the sale of all Restricted Stock or
Founders Stock or both, as the case may be, covered thereby or six months after
the effective date thereof.
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In connection with each registration hereunder, the selling holders of
Restricted Stock or Founders Stock, as the case may be, will furnish to the
company in writing such information with respect to themselves and the proposed
distribution by them as shall be reasonably necessary in order to assure
compliance with federal and applicable state securities laws.
In connection with each registration pursuant to Sections 5, 6 and 7 hereof
covering an underwritten public offering, the Company agrees to enter into a
written agreement with the managing underwriter selected in the manner herein
provided in such form and containing such provisions as are customary in the
securities business for such an arrangement between underwriters and companies
of the Company's size and investment stature, provided that such agreement shall
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not contain any such provision applicable to the company which is inconsistent
with the provisions hereof and provided, further, that the time and place of the
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closing under said agreement shall be as mutually agreed upon among the Company,
such underwriter and the selling holders of Restricted Stock or Founders Stock,
as the-case may be.
9. Expenses. All expenses incurred by the Company in complying with
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Sections 5, 6 and 7 hereof, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc. or any successor thereto, transfer taxes, fees of
transfer agents and registrars, costs of insurance and fees and expenses of one
counsel for the sellers of Restricted Stock (excluding the fees and expenses of
such counsel in excess of $30,000 incurred in connection with each registration
of shares pursuant to Section 5 hereof, and excluding all fees and expenses of
such counsel incurred in connection with a registration of shares pursuant to
Section 7 hereof), but excluding any Selling Expenses, are herein called
"Registration Expenses". All underwriting discounts and selling commissions
applicable to the sale of Restricted Stock or Founders Stock or both, as the
case may be, are herein called "Selling Expenses".
The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to Section 5, 6 or 7 hereof (provided that
the Registration Expenses for each registration pursuant to Section 6 hereof
shall not exceed $30,000). All Selling Expenses and any Registration Expenses
not required to be paid by the Company in connection with any registration
statement filed pursuant to Section 5, 6 or 7 hereof shall be borne by the
participating sellers in proportion to the number of shares sold by each, or by
such persons other than the Company (except to the extent the company shall be a
seller) as they may agree.
10. Indemnification. In the event of a registration of any of the
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Restricted Stock or Founders Stock or both, as the case may be, under the
Securities Act pursuant to Section 5, 6 or 7 hereof, to the extent permitted by
law, the Company will indemnify and hold harmless each seller of such Restricted
Stock or Founders Stock, as the case may be, thereunder and each underwriter of
Restricted Stock or Founders Stock or both, as the case may be, thereunder and
each officer, director and each other person, if any, who controls such seller
or underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such seller or
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are
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based upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Restricted Stock or
Founders Stock or both, as the case may be, was registered under the Securities
Act pursuant to Section 5, 6 or 7, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each such seller, each such
underwriter and each such controlling person for any legal or other expenses as
and when reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
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that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission do
made in conformity with information furnished by such seller, such underwriter
or such controlling person in writing specifically for use in such registration
statement or prospectus.
In the event of a registration of any of the Restricted Stock or Founders
Stock or both, as the case may be, under the Securities Act pursuant to Section
5, 6 or 7 hereof, to the extent permitted by law, each seller of such Restricted
Stock or Founders Stock, as the case may be, thereunder, severally and not
jointly, will indemnify and hold harmless the Company and each officer, director
and each other person, if any, who controls the Company within the meaning of
the Securities Act, each officer of the Company who signs the registration
statement, each director of the Company, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer or director or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the registration statement under which such Restricted Stock or
Founders Stock or both, as the case may be, was registered under the Securities
Act pursuant to Section 5, 6 or 7, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company and each such officer,
director, underwriter and controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that such
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seller will be liable hereunder in any such case if and only to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information pertaining to such
seller, as such, furnished in writing to the Company by such seller specifically
for use in such registration statement or prospectus; provided, further,
-----------------
however, that the liability of each seller hereunder shall be limited to the
-------
proportion of any such loss, claim, damage, liability or expense which is equal
to the proportion that the proceeds of shares sold by such seller under such
registration statement bears to the total proceeds of all securities sold
thereunder, but not to exceed the proceeds received by such seller from the sale
of Restricted Stock or Founders stock, as the case may be, covered by such
registration statement.
-10-
Promptly after receipt by an indemnified party hereunder of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof, but the omission to so notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party other than under this Section 10. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 10 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
---------
however, that, if the defendants in any such action include both the indemnified
-------
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party, or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel with the consent of the indemnifying party
(which consent shall not be unreasonably withheld) and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall have the right
to retain its own counsel in any such action, but the fees and disbursements of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party shall have failed to retain counsel for the indemnified
person as aforesaid or (ii) the indemnifying party and such indemnified party
shall have mutually agreed to the retention of such counsel. It is understood
that the indemnifying party shall not, in connection with any action or related
actions in the same jurisdiction, be liable for the fees and disbursements of
more than one separate firm qualified in such jurisdiction to act as counsel for
the indemnified parties hereunder. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its prior written consent,
but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two paragraphs of this
Section 10 is unavailable or insufficient to hold harmless an indemnified party
under such paragraphs in respect of any losses, claims, damages or liabilities
or actions in respect thereof referred to therein, then each indemnifying party
shall in lieu of indemnifying such indemnified party contribute to the amount
paid or Payable by such indemnified party as a result of such losses, claims,
damages, liabilities or actions in such proportion as appropriate to reflect the
relative fault of the Company, on the one hand, and the sellers of such
Restricted Stock or Founders Stock, as the case may be, on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or actions as well as any other relevant equitable
considerations, including without limitation the failure to give any notice
under the third paragraph of this Section 10. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue
-11-
statement, or omission, of a material fact relates to information supplied by
the Company, on the one hand, or the sellers of such Restricted Stock or
Founders Stock, as the case may be, on the other, and to the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the sellers of Restricted Stock and
Founders Stock agree that it would not be just and equitable if contributions
pursuant to this paragraph were determined by pro rata allocation (even if all
--- ----
of the sellers of such Restricted Stock or Founders Stock, as the case may be,
were treated as one entity for such purpose) or by any other method of
allocation which did not take account of the equitable considerations referred
to above in this paragraph. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or action in respect
thereof, referred to above in this paragraph, shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph, the sellers of Restricted
Stock and Founders Stock shall not be required to contribute any amount in
excess of the amount, if any, by which the total proceeds at which the Common
Stock sold by each of them was offered to the public exceeds the amount of any
damages which they would have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission. No person guilty of fraudulent
misrepresentations (within the meaning of Section 11(f) of the Securities Act),
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation.
The indemnification of underwriters provided for in this Section 10 shall
be on such other terms and conditions as are at the time customary and
reasonably required by such underwriters. In the event that such
indemnification of underwriters is on such other terms and conditions, the
indemnification of the sellers of Restricted Stock in such underwriting shall,
at the sellers' request, be modified to conform to such terms and conditions.
11. Changes in Common Stock. If, and as often as, there are any changes
-----------------------
in the Common Stock by way of stock split, stock dividend, combination or
reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Common Stock as so changed and
shall apply to any securities received in any such transaction.
12. Representations and Warranties of the Company. The Company represents
---------------------------------------------
and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the Articles of Incorporation or Bylaws of the Company, or any
provision of any indenture, agreement or other instrument to which it or any of
its properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of the Company.
-12-
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws from time to time
in affect affecting the enforcement of creditors rights generally and to general
equitable principles.
13. Rule 144 Reporting. The Company agrees with you as follows:
------------------
(a) The Company shall make and keep public information available, as
those terms are understood and defined in Rule 144 under the Securities Act, at
all times from and after the date it is first required to do so.
(b) The Company shall file with the Commission in a timely manner all
reports and other documents as the Commission may prescribe under Section 13(a)
or 15(d) of the Exchange Act at any time after the Company has become subject to
such reporting requirements of the Exchange Act.
(c) The Company shall furnish to such holder of Restricted Stock
forthwith upon request (i) a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time from and
after the date it first becomes subject to such reporting requirements), and of
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements), (ii) a copy of the most recent annual or
Quarterly report of the Company, and (iii) such other reports and documents so
filed as a holder may reasonably request to avail itself of any rule or
regulation of the Commission allowing a holder of Restricted Stock to sell any
such securities without registration.
14. Miscellaneous.
-------------
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto, including without limitation the rights to
indemnification under Section 10 hereof, shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto whether so expressed
or not. Without limiting the generality of the foregoing, the registration
rights conferred herein on the holders of Restricted Stock or Founders Stock, as
the case may be, shall inure to the benefit of any and all subsequent holders
from time to time of the Restricted Stock or of Founders Stock for so long as
the certificates representing the Restricted Stock or Founders Stock shall be
required to bear the legend specified in Section 2 hereof.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by first-class registered
mail, postage prepaid, addressed as follows:
if to the Company, to it at Battery Express, Inc., ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President;
if to the Founders, at their addresses as set forth in Schedule
--------
II hereto;
--
-13-
if to any Purchaser, at its address as set forth in Schedule I
----------
hereto, with copies to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Godward LLP, ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Esq., Reboul, MacMurray, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
Kristol, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and
if to any subsequent holder of Restricted Stock or Founders
Stock, as the case may be, to it at such address as may have been
furnished to the Company in writing by such holder;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Restricted Stock or
Founders Stock) or to the holders of Restricted Stock or Founders Stock (in the
case of the Company). Any notice or other communication pursuant to this
Agreement shall be deemed to have been duly liven or made and to have become
effective when delivered in hand to the party to which directed or if sent by
first-class registered mail, postage prepaid and properly addressed as set forth
above, at the earlier of (i) the time when received by the addressee or (ii) the
fifth business day following the dispatch thereof.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
(d) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof and may not be modified or amended
except in a writing executed by the holders of 66 2/3% of the Restricted Stock
then outstanding and, if such amendment adversely affects the rights of holders
of Founders Stock, by the holders of a majority in interest of the Founders
Stock. For the purposes of calculating the holdings of outstanding Restricted
Stock for purposes of this Section 14(d), holders of Preferred Stock shall be
treated as the holders of the number of shares of Conversion Stock then issuable
upon conversion of such shares.
(e) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[Signature pages follow]
-14-
IN WITNESS WHEREOF, the parties have entered into this Second Amended and
Restated Registration Rights Agreement as of the date first above written.
COMPANY:
BATTERY EXPRESS, INC.
d/b/a iGo Corporation
By:______________________
Title:___________________
PURCHASERS, WARRANT HOLDERS and
FOUNDERS:
INSTITUTIONAL VENTURE
PARTNERS VIII, L.P.
By: Institutional Venture Management VIII, LLC
Its: General Partner
By:_______________________
Managing Director
IVM INVESTMENT FUND VIII, LLC
By: Institutional Venture Management VIII, LLC
Its: Manager
By:_______________________
Managing Director
IVM INVESTMENT FUND VIII-A, LLC
By: Institutional Venture Management VIII, LLC
Its: Manager
By:_______________________
Managing Director
IVP FOUNDERS FUND I, L.P.
By: Institutional Venture Management VI, L.P.
Its: General Partner
By:_______________________
General Partner
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
-15-
WAND/POWER EXPRESS
INVESTMENTS I L.P.
By: Wand (Power Express) Inc.,
as general partner
By:_______________________
Title:____________________
WAND/POWER EXPRESS
INVESTMENTS II L.P.
By: Wand (Power Express) Inc.,
as general partner
By:_______________________
Title:____________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Management Company,
asgeneral partner
By:_______________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, President
▇▇▇▇ ▇▇▇▇▇▇▇
SANTA ▇▇▇▇▇▇▇ BANK & TRUST AS
TRUSTEE FOR ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇-▇▇▇
By:_______________________
Title:____________________
VROLYK / POWER EXPRESS L.P.
By:_______________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, general partner
__________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
__________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Trustees of the ▇▇▇▇▇▇ Trust, dated 12/9/93
By:_______________________
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
__________________________
▇▇▇▇▇▇ ▇▇▇▇ Gallanter
__________________________
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
__________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vrolyk Family Trust - B, dated 6 July 1989
By: _______________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
__________________________
▇▇▇ ▇▇▇▇
-16-
__________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
__________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇
__________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ GROUP INVESTMENTS, L.P.
By: ___________________________________
▇▇▇▇▇▇ ▇▇▇▇, General Partner
TYSON ENTERPRISES, INC.
By: ___________________________________
▇▇▇▇ ▇. ▇▇▇▇▇, President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, AS TRUSTEE OF
THE ▇▇▇▇▇▇▇▇ FAMILY TRUST
By: ___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
__________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
__________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Cragin
__________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., U/T/A F/B/O
MILES ▇▇▇▇▇▇▇ TRUST
By:
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., U/T/A F/B/O
▇▇▇▇ ▇▇▇▇▇▇▇ TRUST
By: ___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., U/T/A F/B/O
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRUST
By: ___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., U/T/A F/B/O
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRUST
By: ___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee
COMDISCO, INC.
By: ___________________________________
Title: ________________________________
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ CALIFORNIA
By: ___________________________________
Title: ________________________________
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ EMPLOYEE
VENTURE FUND, ▇.▇. ▇▇
By: H&Q Venture Management, L.L.C.
Its: General Partner
By: ___________________________________
Title: ________________________________
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇, ▇.▇.
By: ___________________________________
Title: ________________________________
WS INVESTMENT COMPANY ______
By: ___________________________________
Title: ________________________________
_______________________________________
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
-------------------------------
BLANK SIGNATURE BLOCKS:
-------------------------------
(Print or type name of Purchaser)
By: ___________________________________
Title: ________________________________
(if applicable)
(Print or type name of Purchaser)
By: ___________________________________
Title: ________________________________
(if applicable)
(Print or type name of Purchaser)
By: ___________________________________
Title: ________________________________
(if applicable)
(Print or type name of Purchaser)
By: ___________________________________
Title: ________________________________
(if applicable)
-18-
SCHEDULE I
----------
Purchasers
----------
Institutional Venture Partners VIII, L.P.
IVM Investment Fund VIII, LLC
IVM Investment Fund VIII-A, LLC
IVP Founders Fund I, L.P.
c/o Institutional Venture Partners
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
c/o Institutional Venture Partners
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Wand/Power Express Investments I L.P.
Wand/Power Express Investments II L.P.
c/o Wand Partners Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.▇.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Santa ▇▇▇▇▇▇▇ Bank & Trust as Trustee
for ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇
c/o ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Vrolyk / Power Express L.P.
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇,
BT ▇▇▇▇. ▇▇▇▇▇, Inc. Custodian FBO
_ Vrolyk & Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustees of the ▇▇▇▇▇▇ Trust,
dated 12/9/93
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: A. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ Gallanter
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Vrolyk Family Trust - B
dated 6 July 1989
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
19
▇▇▇▇ Group Investments, LP
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Tyson Enterprises, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as Trustee of
The ▇▇▇▇▇▇▇▇ Family Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
-20-
SCHEDULE II
-----------
▇▇▇ ▇▇▇▇
c/o iGo Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-21-