SECURITIES EXCHANGE AGREEMENT
Exhibit 10.2
This Securities Exchange Agreement, dated as of December 31, 2010 (this “Agreement”), is made
and entered into by and among T3 Motion, Inc., a Delaware corporation (“T3 Motion”), and the
warrantholders of T3 Motion listed on the signature page for T3 Motion Shareholders that is
attached hereto (the “Warrantholders”), on the other hand.
RECITALS
WHEREAS, on December 30, 2009, T3 Motion issued 3.5 million Class G Warrants exerciseable at
$0.70 per share of T3 Motion common stock, par value $0.001 per share (“Common Stock”), for five
years (“Warrants”);
WHEREAS, T3 Motion and the Warrantholders wish to exchange the Warrants for an aggregate of
2,100,000 shares of T3 Motion Common Stock.
AGREEMENT
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE 1
THE EXCHANGE
1.1 The Exchange. Upon the terms and subject to the conditions hereof, at the Closing
(as hereinafter defined) the parties shall do the following:
(a) The Warrantholders will each sell, convey, assign, transfer and deliver to T3 Motion
certificates representing the Warrants held by each Warrantholder as set forth in Column III of
Annex I hereto, which in the aggregate shall constitute 100% of the issued and outstanding
Warrants.
(b) As consideration for the acquisition of the Warrants, T3 Motion will issue to each
Warrantholder, in exchange for such Warrantholder’s portion of the Warrants, the number of shares
of common stock set forth opposite such party’s name in Column IV on Annex I attached
hereto (collectively, the “T3 Motion Shares”), such that the Warrantholders will receive an
aggregate of 2,100,000 shares of Common Stock.
ARTICLE 2
CLOSING
2.1 Closing Date. The closing of the Acquisition (the “Closing”) shall take place as
soon as practicable upon signing of this Agreement, and prior to January 1, 2011, or on such other
date as may be mutually agreed upon by the parties. Such date is referred to herein as the “Closing
Date.”
2.2 Taking of Necessary Action; Further Action. If, at any time after the Closing, any
further action is necessary or desirable to carry out the purposes of this Agreement, the
Warrantholders and/or T3 Motion (as applicable) will take all such lawful and necessary action.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE WARRANTHOLDERS
The Warrantholders each hereby represent and warrant to T3 Motion as follows:
3.1 Ownership. The Warrantholders own, beneficially and of record, good and
marketable title to the amount of the Warrants, free and clear of all security interests, liens,
adverse claims, encumbrances, equities, proxies, options or voting agreements. At the Closing, the
Warrantholders will convey to T3 Motion good and marketable title to the Warrants, free and clear
of any security interests, liens, adverse claims, encumbrances, equities, proxies, options,
shareholders’ agreements or restrictions.
3.2 Authority Relative to this Agreement. This Agreement has been duly and validly
executed and delivered by the Warrantholders and constitutes a valid and binding agreement of such
person, enforceable against such person in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors’ rights generally or by general principles of equity.
3.3 Purchase of Restricted Securities for Investment. The Warrantholders each
acknowledge that the T3 Motion Shares will not be registered pursuant to the Securities Act of
1933, as amended (“Securities Act”) or any applicable state securities laws, that the T3 Motion
Shares will be characterized as “restricted securities” under federal securities laws, and that
under such laws and applicable regulations the T3 Motion Shares cannot be sold or otherwise
disposed of without registration under the Securities Act or an exemption therefrom. In this
regard, each Warrantholder is familiar with Rule 144 promulgated under the Securities Act, as
currently in effect, and understands the resale limitations imposed thereby and by the Securities
Act. Further, each Warrantholder acknowledges and agrees that:
(a) Each Warrantholder is acquiring the T3 Motion Shares for investment for such
Warrantholder’s own account and not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and each Warrantholder has no present intention of selling,
granting any participation in, or otherwise distributing the same. Each Warrantholder further
represents that he, she or it does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participation to such person or to any third person,
with respect to any of the T3 Motion Shares.
(b) Each Warrantholder understands that the T3 Motion Shares are not registered under the
Securities Act on the ground that the sale and the issuance of securities hereunder is exempt from
registration under the Securities Act pursuant to Section 4(2) thereof, and that T3 Motion’
reliance on such exemption is predicated on each Warrantholder’s representations as set forth
herein.
3.4 Status of Shareholder.
(a) Accredited Investor Under Regulation D. The Warrantholder is an “Accredited
Investor” as that term is defined in Rule 501 of Regulation D promulgated under the Securities Act,
and such Warrantholder is not acquiring
its portion of the T3 Motion Shares as a result of any advertisement, article, notice or other
communication regarding the T3 Motion Shares published in any newspaper, magazine or similar media
or broadcast over television or radio or presented at any seminar or any other general solicitation
or general advertisement.
3.5 Investment Risk. The Warrantholder is able to bear the economic risk of acquiring
the T3 Motion Shares pursuant to the terms of this Agreement, including a complete loss of such the
Warrantholder’s investment in the T3 Motion Shares.
3.6 Restrictive Legends. The Warrantholder acknowledges that the certificate(s)
representing the Warrantholder’s pro rata portion of the T3 Motion Shares shall each conspicuously
set forth on the face or back thereof a legend in substantially the following form, corresponding
to the shareholder’s status as set forth in Section 3.4 and the signature pages hereto:
REGULATION D LEGEND:
“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY
NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.”
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF T3 MOTION
T3 Motion hereby represents and warrants to the Warrantholders as of the date hereof and as of
the Closing Date (unless otherwise indicated), as follows:
4.1 Organization and Qualification. T3 Motion is an entity duly incorporated or
otherwise organized, validly existing and in good standing under the laws of the jurisdiction of
its incorporation or organization, with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently conducted. T3 Motion is duly
qualified to conduct business and is in good standing as a foreign corporation or other entity in
each jurisdiction in which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good standing, as the
case may be, could not have or reasonably be expected to result in a material adverse effect, and
no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or
seeking to revoke, limit or curtail such power and authority or qualification.
4.2 Authorization; Enforcement. T3 Motion has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this Agreement and
otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by
T3 Motion and the consummation by it of the transaction contemplated hereby will have been duly
authorized by all other necessary action on the part of T3 Motion and no further action will be
required in connection therewith
other than in connection with the Required Approvals, as defined
in Section 4.3. This Agreement has been (or upon delivery will have been) duly executed by T3
Motion and constitutes the valid and binding obligation of T3 Motion enforceable against T3 Motion
in accordance with its terms, except: (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of
specific performance, injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable law.
4.3 Filings, Consents and Approvals. T3 Motion is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or registration with, any
court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by T3 Motion of this Agreement, other than the filing
of Form D with the Commission and such filings as are required to be made under applicable state
securities laws (collectively, the “Required Approvals”).
4.4 Issuance of T3 Motion Shares. The T3 Motion Shares will be duly authorized and,
when issued and paid for in accordance with this Agreement, will be duly and validly issued, fully
paid and nonassessable, free and clear of all liens imposed on or by T3 Motion other than
restrictions on transfer provided for in this Agreement.
4.5 No Integrated Offering. Assuming the accuracy of the Warrantholders’
representations and warranties set forth in Section 3, neither T3 Motion, nor any of its
affiliates, nor any person acting on its or their behalf has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any security, under circumstances
that would cause this offering of the T3 Motion Shares to be integrated with prior offerings by T3
Motion for purposes of (i) the Securities Act which would require the registration of any such
securities under the Securities Act, or (ii) any applicable shareholder approval provisions of any
Trading Market on which any of the securities of T3 Motion are listed or designated.
4.6 No General Solicitation. Neither T3 Motion nor any person acting on behalf of T3
Motion has offered or sold any of the T3 Motion Shares by any form of general solicitation or
general advertising.
ARTICLE 5
CONDITIONS TO CLOSING
5.1 Conditions to Obligations of Warrantholders. The obligations of the Warrantholders
under this Agreement shall be subject to each of the following conditions:
(a) Closing Deliveries. At the Closing, T3 Motion shall have delivered or caused to be
delivered to the Warrantholders the following:
(i) this Agreement duly executed by T3 Motion;
(ii) such other documents as the Warrantholders may reasonably request in connection with the
transactions contemplated hereby.
(b) Representations and Warranties to be True. The representations and warranties of
T3 Motion herein contained shall be true in all material respects at the Closing with the same
effect as though made at such time.
5.2 Conditions to Obligations of T3 Motion. The obligations of T3 Motion under this
Agreement shall be subject to each of the following conditions:
(a) Closing Deliveries. On the Closing Date, the Warrantholders shall have delivered
to T3 Motion the following:
(i) this Agreement duly executed by the Warrantholders;
(ii) such other documents as T3 Motion may reasonably request in connection with the
transactions contemplated hereby.
(b) Representations and Warranties True and Correct. The representations and
warranties of the Warrantholders herein contained shall be true in all material respects at the
Closing with the same effect as though made at such time.
ARTICLE 6
GENERAL PROVISIONS
6.1 Notices. Any and all notices and other communications hereunder shall be in
writing and shall be deemed duly given to the party to whom the same is so delivered, sent or
mailed at addresses and contact information set forth on the signature pages hereof (or at such
other address for a party as shall be specified by like notice) Any and all notices or other
communications or deliveries required or permitted to be provided hereunder shall be in writing and
shall be deemed given and effective on the earliest of: (a) on the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number set forth on the
signature pages attached hereto prior to 5:30 p.m. (Pacific Standard Time) on a business day, (b)
on the next business day after the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on
a day that is not a business day or later than 5:30 p.m. (Pacific Standard Time) on any business
day, (c) on the second business day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is
required to be given.
6.2 Interpretation. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
References to Sections and Articles refer to sections and articles of this Agreement unless
otherwise stated.
6.3 Severability. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated and the parties shall negotiate in
good faith to modify this Agreement to preserve each party’s anticipated benefits under this
Agreement.
6.4 Miscellaneous. This Agreement (together with all other documents and instruments
referred to herein): (a) constitutes the entire agreement and supersedes all other prior agreements
and undertakings, both written and oral, among the parties with respect to the subject matter
hereof; (b) except as expressly set forth herein, is not intended to confer upon any other person
any rights or remedies hereunder and (c) shall not be assigned by operation of law or otherwise,
except as may be mutually agreed upon by the parties hereto.
6.5 Governing Law. This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of California. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of California, without regard to the
principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning
the interpretations, enforcement and defense of the transactions contemplated by this Agreement
(whether brought against a party hereto or its respective affiliates, directors, officers,
shareholders, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of Los Angeles. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of Los Angeles, County of Los
Angeles for the adjudication of any dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein (including with respect to the enforcement of
the Agreement), and hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each
party hereby irrevocably waives personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence of delivery) to
such party at the address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any other manner
permitted by law. If either party shall commence an action or proceeding to enforce any provisions
of the Agreement, then the prevailing party in such action or proceeding shall be reimbursed by the
other party for its reasonable attorneys’ fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or proceeding.
6.6 Counterparts and Facsimile Signatures. This Agreement may be executed in two or
more counterparts, which together shall constitute a single agreement. This Agreement and any
documents relating to it may be executed and transmitted to any other party by facsimile, which
facsimile shall be deemed to be, and utilized in all respects as, an original, wet-inked manually
executed document.
6.7 Amendment. This Agreement may be amended, modified or supplemented only by an
instrument in writing executed by T3 Motion, and holders of a majority of the Warrants; provided
that, the consent of Warrantholder that is a party to this Agreement shall be required if the
amendment or modification would disproportionately affect such Warrantholder.
6.8 Parties In Interest. Except as otherwise provided herein, the terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto.
6.9 Waiver. No waiver by any party of any default or breach by another party of any
representation, warranty, covenant or condition contained in this Agreement shall be deemed to be a
waiver of any subsequent default or breach by such party of the same or any other representation,
warranty, covenant or condition. No act, delay, omission or course of dealing on the part of any
party in exercising any right, power or remedy under this Agreement or at law or in equity shall
operate as a waiver thereof or otherwise prejudice any of such party’s rights, powers and remedies.
All remedies, whether at law or in equity, shall be cumulative and the election of any one or more
shall not constitute a waiver of the right to pursue other available remedies.
6.10 Expenses. At or prior to the Closing, the parties hereto shall pay all of their
own expenses relating to the transactions contemplated by this Agreement, including, without
limitation, the fees and expenses of their respective counsel and financial advisers.
[Remainder of Page Left Blank Intentionally]
IN WITNESS WHEREOF, the parties have executed this Securities Exchange Agreement as of the
date first written above.
| T3 MOTION: T3 MOTION, INC., a Delaware corporation |
||||
| By: | ||||
| Ki Nam | ||||
| Chief Executive Officer | ||||
Address for Notices:
T3 Motion, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx X
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
0000 Xxxxxx Xxxxxx, Xxxxx X
Xxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ANNEX I
SIGNATURE PAGE OF WARRANTHOLDERS
WARRANTHOLDERS:
| Address, Telephone, and Facsimile | ||||||||||||
| Name | Number for Notice: | Warrants Held | Shares | Signature: | ||||||||
Vision Master
Opportunity Fund,
Ltd.
|
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx XX, XX 00000 Telephone: |
3,500,000 | 2,100,000 | By:
Its: |
||||||||
| Facsimile: | ||||||||||||
