IGO CORPORATION
SECURED LOAN AGREEMENT
This Secured Loan Agreement is made as of January 2, 2001 by and
between iGo Corporation, a Delaware corporation (the "COMPANY") and Kenneth W.
Hawk ("BORROWER").
RECITALS
Borrower desires to borrow, and the Company desires to lend to Borrower
up to an aggregate of $306,100.00 (the "BORROWED AMOUNT"). The parties desire
that such loan shall be secured by a number of shares of the Company's Common
Stock currently held by Borrower (directly or in trust) equal to two (2) times
the Borrowed Amount divided by the closing sales price of the Company's Common
Stock on the Nasdaq National Market on the date hereof (rounded to the nearest
whole share and as adjusted for subsequent stock splits, reverse stock splits
and recapitalizations, the "SHARES") on the terms and conditions contained
herein.
NOW, THEREFORE, it is agreed as follows:
1. AGREEMENT TO LEND. Subject to the terms and conditions contained
herein and upon execution of this Agreement, the Company agrees to issue to
Borrower a check or other readily available funds in the Borrowed Amount upon
the date of this Agreement.
2. PROMISSORY NOTE. In consideration of the Company's delivery of the
Borrowed Amount, Borrower will execute a secured promissory note in the form
attached hereto as EXHIBIT A (a "NOTE"), in the principal amount of such
Borrowed Amount and bearing interest at the rate set forth therein, compounded
annually.
3. SECURITY AGREEMENT. Borrower will additionally execute the Security
Agreement in the form attached hereto as EXHIBIT B (the "SECURITY AGREEMENT") as
security for Borrower's obligation to repay the Borrowed Amount, and will
deliver, or cause to be delivered, all certificates representing Shares to the
Company or its designee as pledgeholder of the Shares, together with such other
documents of assignment and other documents as may be reasonably requested by
the Company. The Shares will be held by the Company or its designee as
pledgeholder and shall be released according to the terms of the Security
Agreement.
4. SUCCESSORS OR ASSIGNS. Borrower and the Company agree that all of
the terms of this Agreement shall be binding on their successors and assigns,
and that the term "Borrower" and the term "Company" as used herein shall be
deemed to include as to each party, for all purposes, the designees, successors,
assigns, heirs, executors and administrators of such party.
5. GOVERNING LAW. This Agreement shall be interpreted and governed
under the commercial laws of the State of Nevada and the Delaware General
Corporation Law.
6. AMENDMENT. This Agreement may be amended only by a written
instrument signed by the Company and the Borrower hereto.
7. WAIVER OF CONFLICTS. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES THAT
HALE LANE PEEK DENNISON HOWARD AND ANDERSON, COUNSEL FOR THE COMPANY, AND
CERTAIN ATTORNEYS THEREOF (COLLECTIVELY, "HALE LANE"), HAVE IN THE PAST
PERFORMED AND MAY CONTINUE TO PERFORM LEGAL SERVICES FOR THE COMPANY AND FOR
BORROWER. ACCORDINGLY, EACH PARTY TO THIS AGREEMENT HEREBY (a) ACKNOWLEDGES THAT
HE/IT HAS HAD AN OPPORTUNITY TO ASK FOR INFORMATION RELEVANT TO THIS DISCLOSURE;
AND (b) GIVES HIS/ITS INFORMED CONSENT TO (i) HALE LANE'S REPRESENTATION OF
BORROWER IN MATTERS OTHER THAN THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY AND (ii) HALE LANE'S REPRESENTATION OF THE COMPANY IN CONNECTION WITH
THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY AND SUCH OTHER LEGAL
MATTERS AS THE COMPANY MAY REQUEST.
IN WITNESS WHEREOF, the parties hereto have executed this Secured Loan
Agreement as of the day and year first above written.
"BORROWER" KENNETH W. HAWK
/s/ Ken Hawk
------------------------------------
(Signature)
Address: 4375 Meadowgate Trail
Reno, NV 89509
"COMPANY" IGO CORPORATION
By: /s/ Richard M. Shaff
--------------------------------
Title: CFO
-----------------------------
Address: 9393 Gateway Drive
Reno, NV 89511
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EXHIBIT A
SECURED NOTE
$306,100.00 RENO, NEVADA
JANUARY 2, 2001
FOR VALUE RECEIVED, Kenneth W. Hawk promises to pay to iGo Corporation,
a Delaware corporation (the "COMPANY"), the principal sum of THREE HUNDRED SIX
THOUSAND ONE HUNDRED AND NO/100 DOLLARS ($306,100.00), together with interest on
the unpaid principal hereof from the date hereof at the rate of 10.5% per annum,
compounded annually.
All principal and accrued interest shall be due and payable in full on
demand at any time after the earliest to occur of (a) July 2, 2001, or (b) if
July 2, 2001 falls within a Company designated "blackout" period, the last day a
trade can be made prior to the commencement of such "blackout" period*, or (c)
termination of all employment or consulting relationships of the undersigned
with the Company for any reason (or for no reason). Payments of principal and
interest shall be made in lawful money of the United States of America and shall
be credited first to the accrued interest, with the remainder applied to
principal.
The undersigned may at any time prepay all or any portion of the
principal or interest owing hereunder.
This Note is subject to the terms of a Secured Loan Agreement, dated as
of the date hereof, by and between the Company and the undersigned, and is
secured by a pledge of Common Stock of the Company under the terms of a Security
Agreement dated the date hereof and is subject to all the provisions thereof.
Should any action be instituted for the collection of this Note, the
reasonable costs and attorneys' fees therein of the holder shall be paid by the
undersigned. The undersigned hereby waives notice of default, presentment,
protest or notice of nonpayment or dishonor and all other notices or demands
relative to this instrument other than demand for payment set forth above.
The holder of this Note shall have full recourse against the maker, and
shall not be required to proceed against the collateral securing this Note in
the event of default.
/s/ Ken Hawk
--------------------------------------
Kenneth W. Hawk
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* The maker understands that under the Company's current insider trading policy,
the Company's "blackout" period begins on the 11th day of the last month of each
calendar quarter and ends at the close of business on the second day following
publication of operating results for the prior calendar quarter. Under the
current policy, the Company's second quarter "blackout" period would begin on
June 11, 2001 and end after two days following publication of the operating
results for the June quarter.
EXHIBIT B
SECURITY AGREEMENT
This Security Agreement is made as of January 2, 2001 between iGo
Corporation, a Delaware corporation ("PLEDGEE"), and Kenneth W. Hawk
("PLEDGOR").
RECITALS
Pledgee has loaned or will loan to Pledgor, and Pledgor has borrowed or
will borrow from Pledgee, up to an aggregate of $306,100.00, which loan is or
shall be evidenced by a promissory note (the "NOTE") and is to be secured by a
number of shares of the Company's Common Stock currently held by Borrower
(directly or in trust) equal to two (2) times the Borrowed Amount divided by the
closing sales price of the Company's Common Stock on the Nasdaq National Market
on the date hereof (rounded to the nearest whole share and as adjusted for
subsequent stock splits, reverse stock splits and recapitalizations, the
"SHARES"). The form of Note and the obligations thereunder are as set forth in
EXHIBIT A to the Secured Loan Agreement between Pledgor and Pledgee, dated the
date hereof.
NOW, THEREFORE, it is agreed as follows:
1. CREATION AND DESCRIPTION OF SECURITY INTEREST; TRANSFERABILITY;
ESCROW.
(a) In consideration of the loan to Pledgor under the Secured
Loan Agreement, Pledgor, pursuant to the Commercial Code of the State of Nevada,
hereby pledges such Shares (herein sometimes referred to as the "COLLATERAL")
represented by the certificates therefor, duly endorsed in blank or with
executed stock powers, and herewith delivers such certificates existing as of
the date hereof, and agrees to deliver such certificates as Pledgor may acquire
in the future in order to bring the Collateral to the desired share level, to
the Secretary of Pledgee or the Secretary's designee (the "PLEDGEHOLDER"), who
shall hold said certificates subject to the terms and conditions of this
Security Agreement.
(b) The pledged stock (together with an executed blank stock
assignment for use in transferring all or a portion of the Shares to Pledgee if,
as and when required pursuant to this Security Agreement) shall be held by the
Pledgeholder as security for the repayment of the Note, and any extensions or
renewals thereof, to be executed by Pledgor pursuant to the terms of the Secured
Loan Agreement.
(c) Except as required to enable Pledgee to exercise its
rights as a secured party, none of the Shares pledged under this Section 1 may
be sold, transferred, pledged, hypothecated or otherwise disposed of by Pledgor.
(d) To ensure the ability of Pledgee to exercise its rights as
a secured party hereunder, Pledgor shall, upon execution of this Agreement,
deliver and deposit with the Secretary of Pledgee, or such other person
designated by Pledgee, the share certificates representing the Shares currently
held by Pledgor, and to do the same in the future at such time as Pledgor may
acquire additional certificates, together with a stock power, duly endorsed in
blank, in the form attached hereto as EXHIBIT B-1, provided, however, that
Pledgor shall in no case be obligated to deliver certificates to Pledgee for
Collateral in excess of the original aggregate number of shares of the Company's
Common Stock constituting the Collateral hereunder, plus any additional shares
relating thereto resulting from any stock splits, stock dividends or
recapitalizations. The Shares and stock power(s) shall be held by Pledgee in
escrow, until such time as the Note shall have been paid in full or defaulted
upon. As a further inducement to Pledgee to loan to Pledgor the funds
represented by the Note, the spouse of Pledgor, shall execute and deliver to
Pledgee a Consent of Spouse in the form attached hereto as EXHIBIT B-2, agreeing
to the terms of this Agreement with respect to any community property interest
she may or may not have in the pledged Shares.
2. PLEDGOR'S REPRESENTATIONS AND COVENANTS. To induce Pledgee to enter
into this Security Agreement, Pledgor represents and covenants to Pledgee, its
successors and assigns, as follows:
(a) PAYMENT OF INDEBTEDNESS. Pledgor will pay the principal
sum of the Note secured hereby, together with interest thereon, at the time and
in the manner provided in the Note.
(b) ENCUMBRANCES. All Shares now or hereafter pledged under
this Agreement are and shall be free of all other encumbrances, defenses and
liens, and Pledgor will not further encumber the Shares without the prior
written consent of Pledgee.
3. VOTING RIGHTS. During the term of this pledge and so long as all
payments of principal and interest are made as they become due under the terms
of the Note, Pledgor shall have the right to vote all of the Shares pledged
hereunder.
4. STOCK ADJUSTMENTS. In the event that during the term of the pledge
any stock dividend, reclassification, readjustment or other changes declared or
made in the capital structure of Pledgee, all new, substituted and additional
shares or other securities issued by reason of any such change shall be
delivered to and held by the Pledgeholder under the terms of this Security
Agreement in the same manner as the Shares originally pledged hereunder. In the
event of substitution of such securities, Pledgor, Pledgee and Pledgeholder
shall cooperate and execute such documents as are reasonable so as to provide
for the substitution of such Collateral and, upon such substitution, references
to "Shares" in this Security Agreement shall include the substituted shares of
capital stock of Pledgee held by Pledgor as a result thereof.
5. WARRANTS AND RIGHTS. In the event that, during the term of this
pledge, subscription warrants or other rights or options shall be issued in
connection with the pledged Shares, such rights, warrants and options shall be
the property of Pledgor and, if exercised by Pledgor, all new stock or other
securities so acquired by Pledgor as it relates to the pledged Shares then held
by Pledgeholder shall be immediately delivered to Pledgeholder, to be held under
the terms of this Security Agreement in the same manner as the Shares pledged.
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6. DEFAULT. Pledgor shall be deemed to be in default of the Note and of
this Security Agreement in the event:
(a) Pledgor fails to pay any principal or interest on the Note
within ten (10) days of receipt of demand for payment thereof;
(b) That a bankruptcy or insolvency proceeding is instituted
by or against Pledgor, or if a receiver is appointed for the property of
Pledgor, or if Pledgor makes an assignment for the benefit of creditors; or
(c) Pledgor fails to perform any of the covenants contained in
this Security Agreement for a period of ten (10) days after written notice
thereof from Pledgee.
In the case of an event of default, as set forth above, Pledgee shall
have the right to accelerate payment of the Note upon notice to Pledgor (in the
cases of defaults under items (b) or (c) above), and Pledgee shall thereafter be
entitled to pursue its remedies under the Nevada Commercial Code. Without
limiting the foregoing, Pledgor explicitly acknowledges that upon default
Pledgee will be entitled to take possession and ownership of all or any part of
the Shares and may, but will not be obligated to, retain them in satisfaction of
the amounts owed under the Note. In view of the Pledgee's limited ability to
resell the Shares, Pledgor agrees that if Pledgee elects to retain the Shares in
satisfaction of the Note balance and gives notice thereof to Pledgor, Pledgor
will not object under NRS 104.9505(2) to Pledgee's retention thereof. Nothing
herein shall require the Pledgor to proceed against the Collateral in the event
of a default.
7. WITHDRAWAL OR SUBSTITUTION OF COLLATERAL. Pledgor shall not sell,
withdraw, pledge, substitute or otherwise dispose of all or any part of the
Collateral without the prior written consent of Pledgee.
8. TERM. The pledge of the Shares shall continue until the payment of
all indebtedness secured hereby, at which time the Shares shall be promptly
delivered to Pledgor.
9. PLEDGEHOLDER LIABILITY. In the absence of willful or gross
negligence, Pledgeholder shall not be liable to any party for any of his acts,
or omissions to act, as Pledgeholder.
10. INVALIDITY OF PARTICULAR PROVISIONS. In the event any provision of
this Agreement is found to be invalid, illegal or unenforceable, the validity,
legality and enforceability of any of the remaining provisions shall not in any
way be affected or impaired thereby, and that provision shall be reformed,
construed and enforced to the maximum extent permissible, provided that this
Agreement shall not then substantially deprive either party of the initially
bargained-for performance of the other party. Any such invalidity, illegality or
unenforceability in any jurisdiction shall not invalidate or render illegal or
unenforceable such provision in any other jurisdiction.
11. SUCCESSORS OR ASSIGNS. Pledgor and Pledgee agree that all of the
terms of this Security Agreement shall be binding on their respective successors
and assigns, and that the term "Pledgor" and the term "Pledgee" as used herein
shall be deemed to include, for all purposes, the respective designees,
successors, assigns, heirs, executors and administrators.
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12. GOVERNING LAW. This Security Agreement shall be interpreted and
governed under the laws of the State of Nevada.
IN WITNESS WHEREOF, the parties hereto have executed this Security
Agreement as of the day and year first above written.
"PLEDGOR" KENNETH W. HAWK
/s/ Ken Hawk
-------------------------------------
(Signature)
Address: 4375 Meadowgate Trail
Reno, NV 89509
"PLEDGEE" IGO CORPORATION
By: /s/ Richard M. Shaff
---------------------------------
Title: CFO
------------------------------
Address: 9393 Gateway Drive
Reno, NV 89511
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EXHIBIT B-1
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED I hereby sell, assign and transfer unto ____________
______________________________________ (_______) shares of the Common Stock of
iGo Corporation, a Delaware corporation, standing in my name on the books of
said corporation and represented by Certificate No(s). _______________ herewith
and do hereby irrevocably constitute and appoint the Secretary or any Assistant
Secretary of said corporation to transfer said stock on the books of the
within-named corporation with full power of substitution in the premises.
Dated:______________________________
Signature:
/s/ Ken Hawk
----------------------------------------
Kenneth W. Hawk
- --------------------------------------------------------------------------------
Note: This Assignment Separate from Certificate was executed in conjunction with
the terms of a Security Agreement between the above assignor and iGo Corporation
dated January 2, 2001, for the purpose of enabling the assignee to exercise its
rights as a secured party thereunder without requiring additional signatures on
the part of the assignor.
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EXHIBIT B-2
CONSENT OF SPOUSE
I, KAREN LYNN HAWK, spouse of Kenneth W. Hawk, have read and approved
the foregoing Secured Loan Agreement and the exhibits thereto (the "AGREEMENT").
In consideration of granting of the right to my spouse to borrow funds as set
forth in the Agreement, I hereby appoint my spouse as my attorney-in-fact in
respect to the exercise of any rights under the Agreement and agree to be bound
by the provisions of the Agreement insofar as I may have any rights under such
Agreement or in any shares of iGo Corporation serving as collateral pursuant
thereto under the community property laws of the State of Nevada or similar laws
relating to marital property in effect in the state of our residence as of the
date of the signing of the Agreement.
Dated: January 2, 2001
Signature:
/s/ Karen Hawk
------------------------------------
Karen Lynn Hawk
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