Form of Smart Move, Inc. UNDERWRITING AGREEMENT dated , 2008 Paulson Investment Company, Inc.Underwriting Agreement • December 9th, 2008 • Smart Move, Inc. • Trucking (no local) • New York
Introductory. Smart Move, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule A (the “Underwriters”) an aggregate of 5,500,000 Units, each Unit consisting of (i) one share of the Company’s common stock (“Common Stock”), (ii) one redeemable Class A warrant to purchase one share of Common Stock (each a “Class A Warrant” and, collectively, the “Class A Warrants”) and (iii) one non-redeemable Class B warrant to purchase one share of Common Stock (each a “Class B Warrant” and, collectively, the “Class B Warrants” and, together with the Class A Warrants, the “Warrants”). The Warrants are to be issued under the terms of a Warrant Agreement (the “Warrant Agreement”) by and between the Company and Corporate Stock Transfer, Inc., as warrant agent (the “Warrant Agent”), substantially in the form most recently filed as an exhibit to the Registration Statement (hereinafter defined). The 5,500,000 Units to be sold by the Company are
ContractWarrant Agreement • October 10th, 2006 • Smart Move, Inc. • Trucking (no local) • Colorado
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE SECURITIES LAWS OF ANY STATE AND, EXCEPT AND PURSUANT TO THE PROVISIONS OF ARTICLE 5 BELOW, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAW OR, IN THE OPINION OF LEGAL COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS EXEMPT FROM REGISTRATION.
EMPLOYMENT AGREEMENTEmployment Agreement • October 10th, 2006 • Smart Move, Inc. • Trucking (no local) • Colorado
EMPLOYMENT AGREEMENT (this “Agreement”), effective as of January 15, 2006 (the “Effective Date”), between Edward Johnson (“Executive”) and Smart Move, LLC, a Colorado Limited Liability Company (“Employer”).
ContractWarrant Agreement • January 28th, 2008 • Smart Move, Inc. • Trucking (no local) • Delaware
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.
SECURITY AGREEMENTSecurity Agreement • January 18th, 2008 • Smart Move, Inc. • Trucking (no local) • New York
SECURITY AGREEMENT, dated as of January 15, 2008 (this “Agreement”), between SMART MOVE, INC., a Delaware corporation (the “Company), and the lenders identified on the signature page hereto (the “Lenders”).
REGISTRATION RIGHTS AGREEMENTRegistration Rights Agreement • January 18th, 2008 • Smart Move, Inc. • Trucking (no local) • New York
REGISTRATION RIGHTS AGREEMENT dated as of the 15 day of January, 2008 (this “Agreement”) by and between SMART MOVE, INC., a Delaware corporation (the “Corporation”), and PROFESSIONAL OFFSHORE OPPORTUNITY FUND, LTD., PROFESSIONAL TRADERS FUND, LLC and another entity designated by the Corporation (the “Investor”).
SECURITIES PURCHASE AGREEMENTSecurities Purchase Agreement • January 18th, 2008 • Smart Move, Inc. • Trucking (no local) • New York
THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”) is made as of January 15, 2008, by and among SMART MOVE, INC., a Delaware corporation (the “Company”), and each of those persons and entities, severally and not jointly, whose names are set forth on the Schedule of Purchasers attached hereto as Exhibit A (which persons and entities are hereinafter collectively referred to as “Purchasers” and each individually as a “Purchaser”).
LOAN AND SECURITY AGREEMENT A SMART MOVE L.L.C.Loan and Security Agreement • October 10th, 2006 • Smart Move, Inc. • Trucking (no local)
This LOAN AND SECURITY AGREEMENT dated as of the Effective Date, between SILICON VALLEY BANK (“Bank”), whose address is 3003 Tasman Drive, Santa Clara, California 95054 with a loan production office located at 4410 Arapahoe Ave., Suite 200, Boulder, Colorado 80303 and A SMART MOVE L.L.C. (“Borrower”), whose address is 5350 Roslyn Street, Suite 380, Greenwood Village, Colorado 80111 provides the terms on which Bank will lend to Borrower and Borrower will repay Bank. The parties agree as follows:
A Smart Move L.L.C. Service AgreementService Agreement • October 10th, 2006 • Smart Move, Inc. • Trucking (no local) • Colorado
This Agreement made on the 9th day of May 2005, by and between A Smart Move, L.L.C., a Colorado COMPANY, (dba Smart Move) its successors and assigns whose principal place of business is located at 5350 South Roslyn — Suite 380, Denver, Colorado 80111, and Overnite Transportation Company and assigns whose principal place of business is situated at 1000 Semmes Avenue, Richmond, VA 23224
LOAN MODIFICATION AGREEMENTLoan Modification Agreement • October 10th, 2006 • Smart Move, Inc. • Trucking (no local)
This Loan Modification Agreement is entered into as of June 21, 2005, by and between A Smart Move L.L.C. (the “Borrower”) and Silicon Valley Bank (“Bank”).
MASTER PURCHASE AGREEMENTMaster Purchase Agreement • October 10th, 2006 • Smart Move, Inc. • Trucking (no local) • Kentucky
This Master Purchase Agreement (this “Agreement”) is made effective as of the 24th day of August, 2005 (“Effective Date”), by and between LINPAC MATERIALS HANDLING INC., a Kentucky corporation with an address of 120 Commerce Court, Georgetown, Kentucky 40324 (“Linpac”) and A SMART MOVE L.L.C., a Colorado limited liability company with an address of 5350 Roslyn Street, Suite 400, Greenwood Village, Colorado 80111 (“Smart Move”).
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENTLoan and Security Agreement • October 10th, 2006 • Smart Move, Inc. • Trucking (no local)
THIS SECOND AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into this 29th day of August, 2005, by and between Silicon Valley Bank (“Bank”) and A Smart Move L.LC., a Colorado limited liability company (“Borrower”) whose address is 5350 S. Roslyn Street, Suite 380, Greenwood Village, Colorado 80111.
SECURITY AGREEMENTSecurity Agreement • October 10th, 2006 • Smart Move, Inc. • Trucking (no local) • Colorado
THIS SECURITY AGREEMENT is made as of this 26th day of September, 2005, by and between A Smart Move L.L.C., whose address is 5350 South Roslyn Street, #380, Greenwood Village, Colorado 80111 (“Borrower”) and each of the persons listed on Schedule 1 to this Agreement (each a “Secured Party” and collectively the “Secured Parties”).
A SMART MOVE L.L.C. AMENDED AND RESTATED OPERATING AGREEMENT Dated November 30, 2005Operating Agreement • October 10th, 2006 • Smart Move, Inc. • Trucking (no local) • Colorado
This Operating Agreement was made, executed and sworn to as of the 30th day of August, 2004, by and between Chris Sapyta, Stephen M. Bathgate, and Edward Johnson, as the Managers of the Company (the “Managers”) and Chris Sapyta, Gregory A. Henrikson, Chuck Hinkley, and Mike Ellis as the Initial Members of the Company (the “Initial Members”), and amended and restated on November 30, 2005.
SMART MOVE, INC.*** WARRANT TO PURCHASE SHARES OF COMMON STOCK Warrant to Purchase 3,515,625 Shares (subject to adjustment as set forth herein) Exercise Price $0.40 Per Share (subject to adjustment as set forth herein) VOID AFTER 5:00 P.M., MOUNTAIN...Warrant Agreement • November 14th, 2008 • Smart Move, Inc. • Trucking (no local) • Delaware
THIS CERTIFIES that, for value received, THOMAS P. GRAINGER, and his successors and assigns (the “HOLDER”) is entitled, upon the terms hereof, and subject to the exercise conditions and limitations set forth in Section 17, at any time and from time to time on and after the date hereof (the “COMMENCEMENT DATE”), and on and prior to 5:00 p.m. Mountain Time on the fifth anniversary of the date of issuance hereof (the “EXPIRATION DATE”), but not thereafter, to subscribe for and purchase from SMART MOVE, INC., a Delaware corporation (the “COMPANY”), 3,515,625 shares (the “WARRANT SHARES”) of common stock, $0.0001 par value per share (“COMMON STOCK”), of the Company. The purchase price of one share of Common Stock under this Warrant shall be the Exercise Price, as defined below and as may be adjusted from time to time pursuant to the terms hereof. The Exercise Price and the number of shares for which this Warrant is exercisable shall be subject to adjustment as provided herein. This Warrant
DEFAULT WAIVER AND THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENTLoan and Security Agreement • October 10th, 2006 • Smart Move, Inc. • Trucking (no local) • Colorado
THIS DEFAULT WAIVER AND THIRD AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into this 21st day of December, 2005, by and between Silicon Valley Bank (“Bank”) and A Smart Move L.L.C., a Colorado limited liability company (“Borrower”) whose address is 5350 Roslyn Street, Suite 380, Greenwood Village, CO 80111.
AGREEMENT AND PLAN OF MERGERMerger Agreement • October 10th, 2006 • Smart Move, Inc. • Trucking (no local) • Delaware
This Agreement and Plan of Merger (this “Merger Agreement”) is entered into as of June 9, 2006, by and between A Smart Move L.L.C., a Colorado limited liability company (“Smart Move LLC”), and Smart Move, Inc., a Delaware corporation and a wholly owned subsidiary of Smart Move LLC (“Smart Move, Inc.”).
First Amendment to the Employment AgreementEmployment Agreement • October 10th, 2006 • Smart Move, Inc. • Trucking (no local)
This First Amendment to the Employment Agreement (this “Amendment”) is made effective as of the 15th day of September, 2006 by and between Smart Move, LLC, a Colorado limited liability company (the “Employer”), on the one hand, and Edward Johnson (the “Executive”), on the other hand. Capitalized terms not defined in this Amendment shall have the meanings set forth in the Agreement (as defined below).
SMART MOVE, INC. UNDERWRITING AGREEMENTUnderwriting Agreement • November 17th, 2006 • Smart Move, Inc. • Trucking (no local) • Florida
Newbridge Securities Corporation I-Bankers Securities, Inc. Neidiger, Tucker, Bruner, Inc. Bathgate Capital Partners, LLC As Representatives of the several Underwriters named in Schedule I hereto
SUBLEASESublease • April 2nd, 2007 • Smart Move, Inc. • Trucking (no local) • Colorado
THIS SUBLEASE (“Sublease”) dated January 29, 2007, is made by ACC ACQUISITION, LLC, a Colorado limited liability company (“Sublessor”) and SMART MOVE, INC., a Delaware corporation (“Sublessee”).
INVESTOR RIGHTS AGREEMENTInvestor Rights Agreement • January 18th, 2008 • Smart Move, Inc. • Trucking (no local) • New York
THIS INVESTOR RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of January 15, 2008, by and among (i) Smart Move, Inc., a Delaware corporation (the “Company”); and (ii) Professional Offshore Opportunity Fund, Ltd. (“POOF”); and (iii) Professional Traders Fund, Ltd. (“PTF” and, together with POOF, the “Investors”). Capitalized terms used herein but not otherwise defined herein shall have the respective meanings set forth in the Purchase Agreements (as defined below).
ContractNote Agreement • October 1st, 2007 • Smart Move, Inc. • Trucking (no local) • Colorado
THIS NOTE HAS BEEN MADE FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH THE DISTRIBUTION THEREOF AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THIS NOTE MAY NOT BE SOLD, TRANSFERRED, OR ASSIGNED (“TRANSFER”) UNLESS IT IS SUBSEQUENTLY REGISTERED OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND THE MAKER CONSENTS IN WRITING TO SUCH TRANSFER. THE COMMON STOCK ISSUABLE UPON CONVERSION HEREOF HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, 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 SECURITI
SUBORDINATED CONVERTIBLE NOTESubordinated Convertible Note • October 10th, 2006 • Smart Move, Inc. • Trucking (no local) • Colorado
FOR VALUE RECEIVED, A SMART MOVE L.L.C., a Colorado limited liability company, 5990 Greenwood Plaza Blvd, Suite 390, Greenwood Village, Colorado 80111, and its successors and assigns, (the “Maker”) promises to pay to the order of [INVESTOR] at [INVESTOR ADDRESS] (the “Holder”) or at such other place as Holder may from time to time designate in writing, the principal sum of ___ Million Dollars ($ .00)] in lawful money of the United States of America, together with interest on so such thereof as is from time to time outstanding at the rate hereinafter provided, and payable as hereinafter provided.
OFFICE BUILDING LEASE LANDLORD: Mack-Cali Realty, L.P., a Delaware limited partnership TENANT: A Smart Move, LLC, a Colorado limited liability company BUILDING: 5350 South Roslyn Street, Suite 380 Greenwood Village, CO 80111 DATE:Office Building Lease • February 10th, 2006 • Smart Move, Inc. • Colorado
THIS LEASE is made by and between Mack-Cali Realty, L.P., a Delaware limited partnership (hereinafter referred to as “Landlord”), and A Smart Move, LLC, a Colorado limited liability company (herein after referred to as “Tenant”).
BRIDGE LOAN AGREEMENTBridge Loan Agreement • December 3rd, 2008 • Smart Move, Inc. • Trucking (no local) • Colorado
THIS BRIDGE LOAN AGREEMENT (“Agreement”) is made as of the [ ] day of November, 2008, by and among Smart Move, Inc., a Delaware corporation (the “Company”), and John Thomas Bridge & Opportunity Fund, L.P. ( “Investor”).
GRANT AGREEMENT SMART MOVE, INC. 2006 EQUITY INCENTIVE PLANGrant Agreement • April 2nd, 2007 • Smart Move, Inc. • Trucking (no local) • Delaware
This Grant Agreement (“Grant Agreement”) made and entered into between Smart Move, Inc., a Delaware corporation (the “Company”), and (the “Participant”) evidences the grant to Participant of an option to purchase shares of Company Stock (“Shares”) provided for below (the “Option”) pursuant to the Smart Move, Inc. 2006 Equity Incentive Plan (the “Plan”). This Grant Agreement and the Option granted hereunder is expressly subject to all of the terms, definitions and provisions of the Plan as it may be amended and restated from time-to-time. Capitalized terms used in this Grant Agreement and not defined herein shall have the meanings attributed to them in the Plan.
SECURITY AGREEMENTSecurity Agreement • February 10th, 2006 • Smart Move, Inc. • Colorado
This Security Agreement (“this Agreement”) is made this date by and between A Smart Move L.L.C. (“Debtor”) and the persons listed on Exhibit A to this Agreement (“Secured Parties”).
SUBORDINATED CONVERTIBLE DEBENTURESubordinated Convertible Debenture • October 10th, 2006 • Smart Move, Inc. • Trucking (no local) • Colorado
FOR VALUE RECEIVED, A SMART MOVE L.L.C., a Colorado limited liability company, 5350 S. Roslyn Street, Suite 380, Greenwood Village, Colorado 80111, and its successors and assigns, (the “Maker”) promises to pay to the order of [INVESTOR] at [INVESTOR ADDRESS] (the “Holder”) or at such other place as Holder may from time to time designate in writing, the principal sum of [Seven Thousand Five Hundred Dollars ($7,500.00)] in lawful money of the United States of America, together with interest on so such thereof as is from time to time outstanding at the rate hereinafter provided, and payable as hereinafter provided.
AMENDED AND RESTATED NOTE AND WARRANT PURCHASE AGREEMENTNote and Warrant Purchase Agreement • January 28th, 2008 • Smart Move, Inc. • Trucking (no local) • Colorado
This AMENDED AND RESTATED NOTE AND WARRANT PURCHASE AGREEMENT, dated as of January 22, 2008 (this “Agreement”), is entered into by and between SMART MOVE, INC., a Delaware corporation (the “Company”), and Thomas P. Grainger, an individual residing in the state of Wyoming (“Purchaser”).
AGREEMENT FOR PURCHASE AND SALE OF ASSETSPurchase and Sale Agreement • May 15th, 2008 • Smart Move, Inc. • Trucking (no local) • Delaware
THIS AGREEMENT (this “Agreement”), dated as of the 31st day of January, 2008, is made by and between STAR RELOCATION NETWORK ALLIANCE, INC., a Rhode Island corporation (“Seller” or “Star Alliance”); and SMART MOVE, INC., a Delaware corporation (“Purchaser” or “Smart Move”).
ContractConvertible Note • January 28th, 2008 • Smart Move, Inc. • Trucking (no local) • Colorado
THIS NOTE HAS BEEN MADE FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH THE DISTRIBUTION THEREOF AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THIS NOTE MAY NOT BE SOLD, TRANSFERRED, OR ASSIGNED (“TRANSFER”) UNLESS IT IS SUBSEQUENTLY REGISTERED OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND THE MAKER CONSENTS IN WRITING TO SUCH TRANSFER. THE COMMON STOCK ISSUABLE UPON CONVERSION HEREOF HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE 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 SECURITIE
SECURED SERIES 2009 12% CONVERTIBLE NOTE DUE MARCH 31, 2009Convertible Note • February 20th, 2009 • Smart Move, Inc. • Trucking (no local) • Colorado
THIS NOTE is one of a duly authorized issue of Notes of SMART MOVE, INC., a Delaware corporation, (the “Company”), designated as its Series 2009 12% Convertible Notes (the “Notes”) due on March 31, 2009 (the “Maturity Date”), in an aggregate principal amount of $_____ plus accrued but unpaid interest.
REGISTRATION RIGHTS AGREEMENTRegistration Rights Agreement • December 3rd, 2008 • Smart Move, Inc. • Trucking (no local) • New York
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of this [_____] day of , 2009 is made by and among SMART MOVE, INC., a Delaware corporation, (the “Company”), and JOHN THOMAS BRIDGE & OPPORTUNITY FUND, L.P. (the “Purchaser”).
DEFAULT WAIVER AND SEVENTH AMENDMENT TO LOAN AND SECURITY AGREEMENTLoan and Security Agreement • September 5th, 2007 • Smart Move, Inc. • Trucking (no local) • Colorado
This DEFAULT WAIVER AND SEVENTH AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into this 30th day of August, 2007, by and between Silicon Valley Bank (“Bank”) and Smart Move, Inc., a Delaware corporation (“Borrower”) whose address is 5990 Greenwood Plaza Boulevard, Building 2, Suite 390, Greenwood Village, Colorado 80111.
ContractPromissory Note • August 14th, 2008 • Smart Move, Inc. • Trucking (no local) • Colorado
THIS NOTE HAS BEEN MADE FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO OR FOR SALE IN CONNECTION WITH THE DISTRIBUTION THEREOF AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). THIS NOTE MAY NOT BE SOLD, TRANSFERRED, OR ASSIGNED (“TRANSFER”) UNLESS IT IS SUBSEQUENTLY REGISTERED OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND THE MAKER CONSENTS IN WRITING TO SUCH TRANSFER. THE COMMON STOCK ISSUABLE UPON CONVERSION HEREOF HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE 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 SECURITIE
