Exhibit 10.2
Form of Warrant
This
Warrant and the underlying shares of Common Stock represented by
this Warrant have not been registered under the Securities Act of
1933 (the “Act”), and are “restricted
securities” as that term is defined in Rule 144 under
the Act. The securities may not be offered for sale, sold or
otherwise transferred except pursuant to an effective registration
statement under the Act, or pursuant to an exemption from
registration under the Act, the availability of which is to be
established to the satisfaction of the Company.
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| October ___, 2007 |
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Warrant No. ___ |
***SMART MOVE, INC.***
WARRANT TO PURCHASE SHARES OF COMMON STOCK
Warrant to Purchase 50,000 Shares
(subject to adjustment as set forth herein)
Exercise Price $1.25 Per Share as to 25,000 Shares
Exercise Price $1.50 Per Share as to 25,000 Shares
(subject to adjustment as set forth herein)
VOID AFTER 3:00 P.M., MOUNTAIN TIME, ON
October 31, 2012
THIS CERTIFIES THAT
,
is entitled to purchase from Smart Move, Inc., a Delaware
corporation (hereinafter called the “Company”) with its
principal office located at 5990 Greenwood Plaza Blvd.,
Suite 390, Greenwood Village, Colorado 80111, at any time
before 3:00 P.M., Mountain Time, on October 31, 2012 (the
“Termination Date”), at the purchase price of $1.25 per
share, a total of 25,000 shares of the Company’s common stock
(the “Common Stock”) and a further 25,000 shares of
Common Stock at the purchase price of $1.50 per share as set forth
above. The number of Shares purchasable upon exercise of this
Warrant and the Exercise Price per Share shall be subject to
adjustment from time to time as set forth in Section 4 below
if the number of outstanding shares of Common Stock of the Company
shall be increased or decreased as a result of a stock split, a
reverse stock split or similar recapitalization or reclassification
of stock not involving any change in the shareholder’s equity
or the aggregate market value of shares outstanding as a result
thereof.
SECTION 1. DEFINITIONS.
In
addition to the terms defined elsewhere in this Warrant, the terms
set forth on the Definitions Schedule to this Warrant shall have
the meanings set forth on such Schedule.
SECTION 2. COVERED SHARES; EXERCISE OF WARRANT.
Subject
to the conditions set forth in this Warrant, the Warrant may be
exercised in whole or in part during the Exercise Period, but in no
event subsequent to the end of the Exercise Period, by the
surrender of the Warrant (with the subscription form attached to
this Warrant duly completed and executed) at the principal office
of the Company at 5990 Greenwood Plaza Blvd, Suite 390,
Greenwood Village, Colorado 80111, and upon payment of the
applicable Exercise Price in cash or other immediately available
funds. At the option of the exercising Holder, payment may be made
by (a) cash or other immediately available funds.
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The
right granted by the Warrant to acquire Shares shall expire at the
end of the Exercise Period, and such right shall be wholly null and
void to the extent the Warrant is not exercised before that time.
The Company shall pay all reasonable expenses, taxes and other
charges payable in connection with the preparation, execution and
delivery of any certificates or other documents evidencing the
Shares under this §2. Notwithstanding the surrender of the
Warrant upon its exercise, the rights and obligations of the
Company and the Holders as set forth in this Warrant shall continue
in full force and effect.
SECTION 3. RESERVATION.
At all
times during the Exercise Period, the Company shall reserve and
keep available the maximum number of authorized but unissued
Shares, solely for the purpose of issuing, upon the exercise of the
Warrant, a number of Shares equal to the number of Underlying
Shares.
SECTION 4. ADJUSTMENT OF NUMBER OF SHARES.
The
number of Warrant Shares and the Warrant Price shall be subject to
adjustment if the number of outstanding Shares of Common Stock of
the Company shall be increased or decreased as a result of a stock
split, a reverse stock split or similar recapitalization or
reclassification of stock not involving any change in the
shareholder’s equity or the aggregate market value of shares
outstanding as a result thereof. The Warrant Price and number of
Shares shall be proportionately adjusted so that the percentage of
the Common Stock acquirable by the Holder upon exercise immediately
prior to the event and immediately following the event remains the
same.
SECTION 5. DISSOLUTION OR LIQUIDATION; DIVIDENDS AND
DISTRIBUTIONS.
Upon
any proposed distribution of the assets of the Company in
dissolution or liquidation, the Company shall mail notice of such
distribution to each Holder and shall make no distribution to its
shareholders until the expiration of forty five (45) days from
the date of mailing of such notice. Upon receipt of such notice,
each Holder may exercise the Warrant at any time prior to the
expiration of such 45-day period and thereafter receive any
distributions made to shareholders of the Company in connection
with such dissolution or liquidation.
SECTION 6. FULLY PAID SHARES; TAXES; FRACTIONAL
SHARES.
The
Company covenants and agrees that the Warrant Shares will, at the
time of delivery upon the exercise of the Warrant, be validly
issued and outstanding and be fully paid and nonassessable. The
Company further covenants and agrees that it will pay when due and
payable any and all federal and state issuance taxes that may be
payable in respect of the Warrant or any Warrant Shares or
certificates issued upon the exercise of the Warrant. The Company
shall not, however, be required to pay any tax which may be payable
in respect of any Transfer involving a Transfer of Warrant Shares
in the name other than that of a Holder, and any such tax shall be
paid by the Holder requiring such Transfer. Fractional Warrant
Shares shall be issued upon the exercise of the Warrant in any case
in which the Underlying Shares are not a whole number and the
Holder does not agree to accept cash in lieu of such fractional
Warrant Shares.
SECTION 7. NOTIFICATION OF SHAREHOLDER MATTERS.
Prior
to the exercise in full of the Warrant, the Company shall use
reasonable efforts to cause any notice submitted to the
shareholders of the Company also to be provided to the Holder, but
shall have no liability to the Holder for failure to provide any
such notice with respect to any matters which are disclosed by the
Company to its shareholders or which are available to shareholders
pursuant to the Company’s electronic filings with the
Securities and Exchange Commission (“SEC”) under the
Securities Exchange Act of 1934.
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SECTION 8. RESTRICTIONS ON TRANSFERABILITY OF WARRANTS AND
SHARES; COMPLIANCE WITH LAWS.
8.1. In General . Neither the
Warrant nor any Warrant Shares shall be Transferred except upon the
conditions specified in this Warrant, which conditions are intended
to insure compliance with the provisions of the Securities Act (or
any similar federal statute at the time in effect) and any
applicable state securities laws in respect of any such
Transfer.
8.2. Restrictive Legend
. The Warrant Shares shall be represented by certificates,
and, unless otherwise permitted by the provisions of this
§8.2, shall be marked with a legend reading substantially as
follows:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR
ASSIGNED IN THE ABSCENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN
OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE REASONABLY
ACCEPTABLE TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER
SAID ACT OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. ANY
SUCH SALE, ASSIGNMENT OR TRANSFER MUST ALSO BE MADE IN COMPLIANCE
WITH APPLICABLE STATE SECURITIES LAWS.
If a
registration statement covering the Warrant or any Warrant Shares
shall become effective under the Securities Act and under any
applicable state securities laws, or if the Company shall receive
an opinion of counsel reasonably satisfactory to the Company (which
shall include counsel to the Company and counsel to the original
Holder of the Warrant) that, in the opinion of such counsel, such
legend is not required (including, without limitation, because of
the availability of an exemption afforded by Rule 144(k) under the
Securities Act), the Company shall, or shall instruct its transfer
agents and registrars to, remove such legend or issue new Warrants
or certificates without such legend. Upon the reasonable written
request of a Holder, the Company shall forthwith request counsel to
render an opinion with respect to the matters covered in this
paragraph, and the Company shall pay all expenses in connection
with such matters.
SECTION 9. PIGGYBACK REGISTRATION RIGHTS.
9.1 Piggyback Registration
Rights . If the Company proposes to register any of its stock
or other securities under the 1933 Act (including for this purpose
a registration effected by the Company for stockholders other than
the Holder, but excluding any registration statement relating
either to the sale of securities to employees of the Company
pursuant to a stock option, stock purchase or similar plan, a
registration made on Form S-4 or any successor forms then in
effect, or an SEC Rule 145 transaction), the Company shall, at
such time, promptly give Holder written notice of such
registration. Upon the written request of Holder given within
thirty (30) days after such notice by the Company, the Company
shall cause to be registered under the 1933 Act, the number of
Warrant Shares acquired or acquirable by the Holder upon Exercise
of the Warrant has requested to be registered, provided, however,
that if the offering is an underwritten offering, and the
underwriter for the offering requires a limitation of the number of
shares to be included in such registration, such limitation shall
be applied on a pro-rata basis among all other holders of piggyback
registration rights. The expense of any such registration shall be
paid by the Company.
9.2 Indemnification .
A. The
Company agrees to indemnify and hold harmless, to the extent
permitted by law, each Holder of registrable securities under
§9.1, its officers, directors, partners, employees and agents
and each Person who controls such Holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities
and expenses arising out of or based upon any untrue or al
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