Filed by Bowne Pure Compliance



 




Exhibit 4.4




REGISTRATION RIGHTS AGREEMENT




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”).



W I T N E S S E T H :




WHEREAS, the Investor owns or has the right to purchase or otherwise acquire shares of
the Common Stock (as hereinafter defined) of the Corporation; and



WHEREAS, the Corporation and the Investor deem it to be in their respective best interest to
set forth the rights of the Investor in connection with the registration of such Common Stock under
applicable securities laws; and



WHEREAS, the execution and delivery of this Agreement is a condition to the loan facility to
be provided by the Investor to the Corporation on the date hereof;



NOW, THEREFORE, in consideration of the premises and mutual covenants and obligations
hereinafter set forth, the Corporation and the Investor hereby agree as follows:




Section 1. Definitions.




As used in this Agreement the following terms shall have the following meanings:



(a) “Commission” means the Securities and Exchange Commission or any other Federal Agency at
the time administering the Securities Act.




(b) “Common Stock” means the common stock, par value $0.0001, of the Corporation.



(c) “Exchange Act” means the Securities Exchange Act of 1934 or any successor Federal statute,
and the rules and regulations of the Commission promulgated thereunder, all as the same shall be in
effect from time to time.



(d) “Investor” means Professional Offshore Opportunity Fund, Ltd., Professional Traders Fund,
LLC and each additional person who shall execute a counterpart signature page hereto, and includes
any successor to, or assignee or transferee of, any such person who or which agrees in writing to
be treated as an Investor hereunder and to be bound by the terms and comply with all applicable
provisions hereof.



(e) “Other Shares” means at any time those shares of Common Stock which do not constitute
Primary Shares or Registrable Shares.



(f) “Primary Shares” means at any time the authorized but unissued shares of Common Stock held
by the Corporation in its treasury.


 


 









 





(g) “Registrable Shares” means shares of Common Stock now or hereafter held by the Investor,
whether acquired or acquirable pursuant to or in connection with the Warrant, the Secured
Convertible Debenture or any other agreements in connection with this transaction. As to any
particular Registrable Shares, once issued, such Registrable Shares shall cease to be Registrable Shares
when (i) they have been registered under the Securities Act, the registration statement in
connection therewith has been declared effective and they have been disposed of pursuant to such
effective registration statement, (ii) they are eligible to be sold or distributed pursuant to Rule
144 within any consecutive three month period (including, without limitation, Rule 144(k)) without
volume limitations, or (iii) they shall have ceased to be outstanding.



(h) “Registration Statement” means any registration statement of the Company relating to the
registration for resale of Registrable Securities (in an amount permissible under the Rule 415
Interpretive Position) that is filed pursuant to the provisions of this Agreement.



(i) “Rule 144” means Rule 144 promulgated under the Securities Act or any successor rule
thereto.



(j) “Securities Act” means the Securities Act of 1933 or any successor Federal statute, and
the rules and regulations of the Commission thereunder, all as the same shall be in effect from
time to time.



(k) “Secured Convertible Debentures” means the Secured Convertible Debentures entered into
between the Corporation and Professional Offshore Opportunity Fund, LLC. and Professional Traders
Fund, LLC., respectively, and dated the date hereof in the principal amount of $2,800,000 and
$200,000, respectively.



(l) “Warrant” means each Warrant dated the date hereof issued by the Corporation to the
Investor.




Section 2. Registration.



(a) Mandatory Registration. The Corporation shall prepare, and as soon as
practicable, but not later than sixty (60) calendar days following the date hereof, provide the
Investor with a working draft of a resale registration statement (minus audited detail for fiscal
year 2007). The Company shall file with the SEC a Registration Statement or Registration
Statements (as necessary) on Form SB-2 (or, if such form is unavailable for such a registration,
on such other form as is available for such a registration), covering the resale of all Registrable
Securities that will be issuable by the Company to the Investor upon the prospective conversion of
the Secured Convertible Debentures, the prospective exercise of stock purchase warrants and in
connection with the prospective payment of interest on the convertible debentures, which
Registration Statement(s) shall state that, in accordance with Rule 416 promulgated under the 1933
Act, such Registration Statement also covers such indeterminate number of additional shares of
Common Stock as may become issuable upon stock splits, stock dividends or similar transactions.



The Corporation and the Investor intend that the number of shares to be registered shall
be pursuant to Rule 415 and any interpretative positions of Rule 415 by the SEC. If the number
of shares registered in the Registration Statement is less than the Registrable Shares, the balance
will be registered in a second registration statement and any necessary subsequent registration
statements as soon as permitted by securities laws. And, in the event that any Registrable Shares
are excluded from the Registration Statement due to the interpretation of Rule 415, the Registrable
Shares included in each registration statement shall be allocated among all investors pro rata
based on the total number of Registrable Shares proposed to be included in the registration
statements.


 


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(b) The Corporation shall have the Registration Statement filed with the SEC before the later
of: (i) sixty (60) calendar days following the Closing Date; and (ii) ten (10) days following the
filing of the Company’s Form 10-KSB for the fiscal year ended December 31, 2007 (the “Filing
Date”). If the Registration Statement covering the Registrable Securities required to be filed by the
Corporation pursuant to Section 2(a) hereof is not filed on or before the Filing Date, then the
Corporation shall pay the Investor the sum of two percent (2%) of the face amount of the Secured
Convertible Debenture as liquidated damages, and not as a penalty, for the first thirty (30)
calendar day period, pro rata, following the Filing Date until the Registration Statement is filed,
and two percent (2%) for each successive thirty (30) calendar day period thereafter. The
Corporation shall pay such liquidated damages in cash.



Notwithstanding the foregoing, the amounts payable by the Corporation pursuant to this Section
shall not be payable to the extent any delay in the filing of the Registration Statement occurs
because of an act of, or a failure to act or to act timely by the Investor. The damages set forth
in this Section shall continue until the obligation is fulfilled and shall be paid within three (3)
business days after each thirty (30) day period, or portion thereof, until the Registration
Statement is filed. Failure of the Corporation to make payment within said three (3) business days
shall be considered a default.



The Corporation acknowledges that its failure to have the Registration Statement filed on or
prior to the Filing Date will cause the Investor to suffer damages in an amount that will be
difficult to ascertain. Accordingly, the parties agree that it is appropriate to include in this
Agreement a provision for liquidated damages. The parties acknowledge and agree that the liquidated
damages provision set forth in this section represents the parties’ good faith effort to quantify
such damages and, as such, agree that the form and amount of such liquidated damages are reasonable
and will not constitute a penalty. The payment of liquidated damages shall not relieve the
Corporation from its obligations to register the Common Stock and deliver the Common Stock pursuant
to the terms of this Agreement and the Subscription Agreement.



Notwithstanding the foregoing provisions of Section 2(a) and 2(b) providing for liquidated
damages under certain circumstances, as the sole exception to the requirement to pay such damages,
in the event the SEC disallows registration of the Registrable Securities pursuant to Rule 415
under the Securities Act, no such damages shall be payable so long as the Corporation then uses its
best efforts to register the maximum number of Registrable Securities in such registration
statements as the SEC permits and uses its best efforts thereafter to register in appropriate
registration statements any Registrable Securities not included in such registration statements.



The Corporation shall have a Registration Statement be declared effective by the SEC on or
prior to sixty (60) days after the Filing Date. If the Registration Statement covering the
Registrable Securities required to be filed by the Company pursuant to Section 2(a) hereof is not
declared effective within sixty (60) days following the Filing Date, then the Corporation shall pay
the Investor the sum of two percent (2%) of the face amount of the Secured Convertible Debenture as
liquidated damages and not as a penalty for the first thirty (30) calendar day period, pro rata,
following the one hundred twenty (120) calendar day period, until the Registration Statement is
declared effective, and two percent (2%) for each successive thirty (30) calendar day period
thereafter, not to exceed a maximum of 10% of the face amount of the Secured Convertible Debenture.
The Corporation shall pay such liquidated damages in cash.



If the Registration Statement covering the Registrable Securities required to be filed by the
Corporation pursuant to Section 2(a) hereof is declared effective, but after the effective date the
Investor’s right to sell is suspended, then the Corporation shall pay the Investor the sum of two
percent (2%) of the face amount of the Secured Convertible Debenture for each thirty (30) calendar
day period, pro rata, following the suspension until such suspension ceases, not to exceed a
cumulative maximum of 10% of the face amount of the Secured Convertible Debentures (taking into
account any liquidated damages accrued as a result of delayed effectiveness of the Registration
Statement). The Corporation shall pay such liquidated damages in cash.



Notwithstanding the foregoing, the amounts payable by the Corporation pursuant to this Section
shall not be payable to the extent any delay in the effectiveness of the Registration Statement
occurs because of an act of or a failure to act or to act timely by the Investor. The damages set
forth in this Section shall continue until the obligation is fulfilled and shall be paid within three (3)
business days after each thirty (30) day period, or portion thereof, until the Registration
Statement is declared effective or such suspension is released. Failure of the Corporation to make
payment within said three (3) business days shall be considered a default.


 


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The Company acknowledges that its failure to have the Registration Statement declared
effective within sixty (60) days following the Filing Date or to permit the suspension of the
effectiveness of the Registration Statement, will cause the Investor to suffer damages in an amount
that will be difficult to ascertain. Accordingly, the parties agree that it is appropriate to
include in this Agreement a provision for liquidated damages. The parties acknowledge and agree
that the liquidated damages provision set forth in this section represents the parties’ good faith
effort to quantify such damages and, as such, agree that the form and amount of such liquidated
damages are reasonable and will not constitute a penalty. The payment of liquidated damages shall
not relieve the Corporation from its obligations to register the Common Stock and deliver the
Common Stock pursuant to the terms of this Agreement and the Securities Purchase Agreement.



(c) The Company agrees not to include any other securities in this Registration Statement
except securities holding currently effective piggyback registration rights as disclosed in the
Securities Purchase Agreement between the Company and the Investors without Investor’s prior
written consent. Furthermore, the Company agrees that it will not file any other Registration
Statement for other securities (other than those for the equity credit line financing, strategic
partners or in connection with a merger, acquisition or other transaction that is not a New
Transaction, as such term is defined in the Secured Convertible Debenture), until ninety (90)
calendar days after the Registration Statement for the Registrable Securities is declared
effective.



(d) Piggyback Registration. Without limiting the obligations set forth in Section
2(a) through and including 2(d) of this Agreement, if the Corporation at any time proposes for any
reason to register Primary Shares, Registrable Shares or Other Shares under the Securities Act
(other than on Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms
thereto), it shall give written notice to the Investor of its intention so to register such Primary
Shares, Registrable Shares or Other Shares at least 30 days before the initial filing of such
registration statement and, upon the written request, delivered to the Corporation within 20 days
after delivery of any such notice by the Corporation, of the Investor to include in such
registration Registrable Shares (which request shall specify the number of Registrable Shares
proposed to be included in such registration and shall state that such Investor desire 5 to sell
such Registrable Shares in the public securities markets), the Corporation shall cause all such
Registrable Shares to be included in such registration on the same terms and conditions as the
securities otherwise being sold in such registration; provided, however, that if
the managing underwriter advises the Corporation that the inclusion of all Registrable Shares
requested to be included in such registration would interfere with the successful marketing
(including pricing) of the Primary Shares, Registrable Shares or Other Shares proposed to be
registered by the Corporation, then the number of Primary Shares, Registrable Shares and Other
Shares proposed to be included in such registration shall be included in the following order:




(i) if the Corporation proposes to register Primary Shares, or Primary Shares and Other
Shares:




First, the Primary Shares; and




Second, the Registrable Shares and Other Shares requested to be
included in such registration (or, if necessary, such Registrable Shares and
Other Shares pro rata among the holders thereof based upon
the number of Registrable Shares and Other Shares requested to be registered
by each such holder); or


 


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(ii) if the Corporation proposes to register Other Shares pursuant to a request for
registration by the holders of such Other Shares (other than pursuant to Section 2 hereof):




First, the Other Shares held by the parties demanding such
registration; and




Second, the Registrable Shares and Other Shares (other than
 shares registered pursuant to Section 2(c)(1) hereof) requested to be
registered by the holders hereof (or, if necessary, pro
rata among the holders thereof based on the number of Registrable
Shares and Other Shares requested to be registered by such holders).




Section 3. Preparation and Filing.



If and whenever the Corporation is under an obligation pursuant to the provisions of this
Agreement to effect the registration of any Registrable Shares, the Corporation shall as
expeditiously as practicable:



(a) prepare and file with the Commission a registration statement with respect to such
Registrable Shares and use its best efforts to cause such registration statement to become
effective and, upon the request of the holders of a majority of the Registrable Shares being
registered thereunder, keep such registration statement effective for a period of up to one hundred
twenty (120) days or until the distribution contemplated in the registration statement has been
completed; provided, however, that (i) such 120-day period shall be extended for a
period of time equal to the period the holders of Registrable Shares refrain from selling any
securities included in such registration at the request of an underwriter of Common Stock (or other
securities) of the Company; and (ii) in the case of any registration of Registrable Securities on
Form S-3 which are intended to be offered on a continuous or delayed basis, such 120-day period
shall be extended, if necessary, to keep the registration statement effective until all such
Registrable Shares are sold, provided that Rule 415, or any successor rule under the Securities
Act, permits an offering on a continuous or delayed basis; and provided
further that applicable rules under the Securities Act governing the obligation to file a
post-effective amendment permit (in lieu of filing a post-effective amendment which (I) includes
any prospectus required by Section 10(a)(3) of the Securities Act or (II) reflects facts or events
representing a material or fundamental change in the information set forth in the registration
statement) the incorporation by reference, in the registration statement, of information required
to be included in (I) and (II) above to be contained in periodic reports filed pursuant to Section
13 or 15(d) of the Exchange Act.



(b) prepare and file with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement.



(c) furnish, at least five business days before filing a registration statement that registers
such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to
such a registration statement or prospectus, to one counsel selected by the Investor (the
“Investor’s Counsel”), copies of all such documents proposed to be filed (it being understood that
such five-business-day period need not apply to successive drafts of the same document proposed to
be filed so long as such successive drafts are supplied to the Investor’s Counsel in advance of the
proposed filing by a period of time that is customary and reasonable under the circumstances);



(d) notify in writing the Investor’s legal counsel promptly (i) of the receipt by the
Corporation of any notification with respect to any comments by the Commission with respect to such
registration statement or prospectus or any amendment or supplement thereto or any request by the
Commission for the amending or supplementing thereof or for additional information with respect
thereto,



 


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(ii) of the receipt by the Corporation of any notification with respect to the issuance by the
Commission of any stop order suspending the effectiveness of such registration statement or
prospectus or any amendment or supplement thereto or the initiation or threatening of any
proceeding for that purpose and (iii) of the receipt by the Corporation of any notification with
respect to the suspension of the qualification of such Registrable Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purposes;



(e) use its best efforts to register or qualify such Registrable Shares under such other
securities or blue sky laws of such jurisdictions as the Investor reasonably requests and do any
and all other acts and things which may be reasonably necessary or advisable to enable the Investor
to consummate the disposition in such jurisdictions of the Registrable Shares owned by the
Investor; provided, however, that the Corporation will not be required to qualify generally to do
business, subject itself to general taxation or consent to general service of process in any
jurisdiction where it would not otherwise be required to do so but for this paragraph (e) or to
provide any material undertaking or make any changes in its By-laws or Certificate of Incorporation
which the Board of Directors determines to be contrary to the best interests of the Corporation or
to modify any of its contractual relationships then existing;



(f) furnish to the Investor holding such Registrable Shares such number of copies of a summary
prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as such Investor may reasonably
request in order to facilitate the public sale or other disposition of such Registrable Shares;



(g) without limiting subsection (e) above, use its best efforts to cause such Registrable
Shares to be registered with or approved by such other governmental agencies or authorities as may
be necessary by virtue of the business and operations of the Corporation to enable the Investor
holding such Registrable Shares to consummate the disposition of such Registrable Shares;



(h) notify the Investor holding such Registrable Shares on a timely basis at any time when a
prospectus relating to such Registrable Shares is required to be delivered under the Securities Act
within the appropriate period mentioned in subparagraph (a) of this Section 3, of the happening of
any event as a result of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading in light of the
circumstances then existing and, at the request of the Investor, prepare and furnish to such
Investor a reasonable number of copies of a supplement to or an amendment of such prospectus as may
be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall
not include an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in light of the
circumstances then existing;



(i) subject to the execution of confidentiality agreements in form and substance satisfactory
to the Corporation, make available upon reasonable notice and during normal business hours, for
inspection by the Investor holding such Registrable Shares, any underwriter participating in any
disposition pursuant to such registration statement and any attorney, accountant or other agent
retained by the Investor or underwriter (collectively, the “Inspectors”), all pertinent financial
and other records, pertinent corporate documents and properties of the Corporation (collectively,
the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Corporation’s officers, directors and employees to supply all
information (together with the Records, the “Information”) reasonably requested by any such
Inspector in connection with such registration statement. Any of the Information which the
Corporation determines in good faith to be confidential and of which determination the Inspectors
are so notified, shall not be disclosed by the Inspectors unless (i) the disclosure of such
Information is necessary to avoid or correct a misstatement or an omission in the registration
statement, (ii) the release of such Information is ordered pursuant to a subpoena or other order



 


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from a court of competent jurisdiction or (iii) such Information has been made generally
available to the public; the Investor agree that they will, upon learning that disclosure of such
information is sought in a court of competent jurisdiction, give notice to the Corporation and
allow the Corporation, at the Corporation’s expense, to undertake appropriate action to prevent
disclosure of the Information deemed confidential;



(j) use its best efforts to obtain from its independent certified public accountants “cold
comfort” letters addressed to the Corporation and any selling shareholders in customary form and at
customary times and covering matters of the type customarily covered by cold comfort benefits;



(k) use its best efforts to obtain from its counsel an opinion or opinions in customary form
addressed to the Corporation and any selling shareholders;



(l) in the event of any underwritten public offering, enter into and perform its obligations
under an underwriting agreement, in usual and customary form, with the managing underwriter of such
offering. Each holder of Registrable Shares participating in such underwriting shall also enter
into and perform its obligations under such an agreement;



(m) provide a transfer agent and registrar (which may be the same entity and which may be the
Corporation) for such Registrable Shares and a CUSIP number for all such Registrable Shares, in
each case not later than the effective date of such registration;



(n) issue to any underwriter to which the Investor holding such Registrable Shares may sell
shares in such offering certificates evidencing such Registrable Shares;



(o) list such Registrable Shares on any national securities exchange on which any shares of
the Common Stock are listed or, if the Common Stock is not listed on a national securities
exchange, use its best efforts to qualify such Registrable Shares for inclusion on the automated
quotation system of the National Association of Securities Dealers, Inc. (the “NASDAQ”), or such
other national securities exchange as the holders of a majority of such Registrable Shares shall
reasonably request;



(p) otherwise use its best efforts to comply with all applicable rules and regulations of the
Commission and make available to its security holders, as soon as reasonably practicable, earnings
statements (which need not be audited) covering a period of 12 months beginning within three months
after the effective date of the registration statement, which earnings statements shall satisfy the
provisions of Section 11 (a) of the Securities Act; and



(q) subject to all the other provisions of this Agreement, use its best efforts to take all
other steps necessary to effect the registration of such Registrable Shares contemplated hereby.



(r) Each holder of the Registrable Shares, upon receipt of any notice from the Corporation of
any event of the kind described in Section 3(h) hereof, shall forthwith discontinue disposition of
the Registrable Shares pursuant to the registration statement covering such Registrable Shares
until such holders’ receipt of the copies of the supplemented or amended prospectus contemplated by
Section 3(h) hereof, and, if so directed by the Corporation, such holder shall deliver to the
Corporation all copies, other than permanent file copies then in such holder’s possession, of the
prospectus covering such Registrable Shares at the time of receipt of such notice.




Section 4. Expenses.



All expenses (other than underwriting discounts and commissions relating to the Registrable
Shares, as provided in the last sentence of this Section 4) incurred by the Corporation in
complying with Section 3, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the Financial Industry Regulatory Authority, Inc.
“FINRA”), fees and expenses of complying



 


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with securities and blue sky laws, printing expenses, fees and expenses of the Corporation’s
counsel and accountants, and a $5,000 expense payment to the Investor to pay for its review of the
Corporation’s filings, shall be paid by the Corporation; provided, however, that
all underwriting discounts and selling commissions applicable to the Registrable Shares and Other
Shares shall be borne by the holders selling such Registrable Shares and Other Shares, in
proportion to the number of Registrable Shares and Other Shares sold by each such holder. The
$5,000 payment to the Investor shall be paid to the Investor shall be held in escrow until the
filing of the registration statement.




Section 5. Indemnification.



(a) In connection with any registration of any Registrable Shares under the Securities Act
pursuant to this Agreement, the Corporation shall indemnify and hold harmless the holders of
Registrable Shares, each underwriter, broker or any other person acting on behalf of the holders of
Registrable Shares and each other person, if any, who controls any of the foregoing persons within
the meaning of the Securities Act against any losses, claims, damages or liabilities, joint or
several (or actions in respect thereof), to which any of the foregoing persons 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 an untrue statement or allegedly untrue
statement of a material fact contained in the registration statement under which such Registrable
Shares were registered under the Securities Act, the Exchange Act or any preliminary prospectus or
final prospectus contained therein or otherwise filed with the Commission, any amendment or
supplement thereto or any document incident to registration or qualification of any Registrable
Shares, 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 or, with respect to any prospectus, necessary to make the statements therein in light of
the circumstances under which they were made not misleading, or any violation by the Corporation of
the Securities Act or state securities or blue sky laws applicable to the Corporation and relating
to action or inaction required of the Corporation in connection with such registration or
qualification under such state securities or blue sky laws; and shall reimburse the holders of
Registrable Shares, such underwriter, such broker or such other person acting on behalf of the
holders of Registrable Shares and each such controlling person for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Corporation shall
not be liable in any such case to the extent that any such loss, claim, damage, liability or action
(including any legal or other expenses incurred) arises out of or is based upon an untrue statement
or allegedly untrue statement or omission or alleged omission made in said registration statement,
preliminary prospectus, final prospectus, amendment supplement or document incident to registration
or qualification of any Registrable Shares in reliance upon and in conformity with written
information furnished to the Corporation through an instrument duly executed by the holders of
Registrable Shares or their counsel or underwriter specifically for use in the preparation thereof;
provided further, however, that the foregoing indemnity agreement is
subject to the condition that, insofar as it relates to any untrue statement, omission or alleged
omission made in any preliminary prospectus but eliminated or remedied in the final prospectus
(filed pursuant to Rule 424 of the Securities Act), such indemnity agreement shall not inure to the
benefit of any Investor, underwriter, broker or other person acting on behalf of holders of the
Restricted Shares from whom the person asserting any loss, claim, damage, liability or expense
purchased the Restricted Shares which are the subject thereof, if a copy of such final prospectus
had been made available to such person and such Investor, underwriter, broker or other person
acting on behalf of holders of the Registrable Shares and such final prospectus was not delivered
to such person with or prior to the written confirmation of the sale of such Registrable Shares to
such person.



(b) In connection with any registration of Registrable Shares under the Securities Act
pursuant to this Agreement, each holder of Registrable Shares shall severally and not jointly
indemnify and hold harmless (in the same manner and to the same extent as set forth in the
preceding paragraph of this Section 5) the Corporation, each director of the Corporation, each
officer of the Corporation who shall sign such registration statement, each underwriter, broker or
other person acting on behalf of the



 


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holders of Registrable Shares and each person who controls any of the foregoing persons within
the meaning of the Securities Act with respect to any statement or omission from such registration
statement, any preliminary prospectus or final prospectus contained therein or otherwise filed with
the Commission, any amendment or supplement thereto or any document incident to registration or
qualification of any Registrable Shares, if such statement or omission was made in reliance upon
and in conformity with written information furnished to the Corporation or such underwriter
specifically for use in connection with the preparation of such registration statement, preliminary
prospectus, final prospectus, amendment, supplement or document; provided, however,
that the maximum amount of liability in respect of such indemnification shall be limited, in the
case of each Seller of Registrable Shares, to an amount equal to the net proceeds actually received
by such Seller from the sale of Registrable Shares effected pursuant to such registration.



(c) Promptly after receipt by an indemnified party of notice of the commencement of any action
involving a claim referred to in the preceding paragraphs of this Section 5, such indemnified party
will, if a claim in respect thereof is made against an indemnifying party, give written notice to
the latter of the commencement of such action. The failure of any indemnified party to notify an
indemnifying party of any such action shall not (unless such failure shall have a material adverse
effect on the indemnifying party) relieve the indemnified party on account of this Section 5. In
case any such action is brought against an indemnified party, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any other indemnifying
party similarly notified to the extent that it may wish, 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 the defense thereof, the indemnifying party shall not be responsible for
any legal or other expenses subsequently incurred by the indemnified party in connection with the
defense thereof; provided, however, that if any indemnified party shall have
reasonably concluded that there may be one or more legal or equitable defenses available to such
indemnified party which are additional to or conflict with those available to the indemnifying
party, or that such claim or litigation involves or could have an effect upon matters beyond the
scope of the indemnity agreement provided in this Section 5, the indemnifying party shall not have
the right to assume the defense of such action on behalf of such indemnified party (but shall have
the right to participate therein with counsel of its choice) and such indemnifying party shall
reimburse such indemnified party and any person controlling such indemnified party for that portion
of the fees and expenses of any counsel retained by the indemnified party which is reasonably
related to the matters covered by the indemnity agreement provided in this Section 5. If the
indemnifying party is not entitled to, or elects not to, assume the defense of a claim, it will not
be obligated to pay the fees and expenses of more than one counsel with respect to such claim.



(d) If the indemnification provided for in this Section 5 is held by a court of competent
jurisdiction to be unavailable to an indemnified party with respect to any loss, claim, damage,
liability or action referred to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions which resulted in
such loss, claim, damage, liability or action as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
In no event shall contribution obligations of this Section 5(b) exceed the net profits from the
offering received by such holder after deducting underwriting fees, discounts and commissions. No
person guilty of fraudulent misrepresentation shall be entitled to contribution from any person.


 


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Section 6. Underwriting Agreement.



Notwithstanding the provisions of Sections 2, 3, 4 and 5, to the extent that the Investor
shall enter into an underwriting or similar agreement, which agreement contains provisions covering
one or more issues addressed in such Sections, the provisions contained in such agreement
addressing such issue or issues shall control; provided, however, that any such
agreement to which the Corporation is not a party shall not be binding upon the Corporation. No
holder may participate in any underwritten registration hereunder unless such holder (a) agrees to
such holder’s securities on the basis provided in any underwriting arrangements and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other
documents reasonably and customarily required under the terms of such underwriting arrangements.




Section 7. Information by Investor.



The Investor shall furnish to the Corporation such written information regarding the Investor
and the distribution proposed by the Investor as the Corporation may reasonably request in writing
and shall be reasonably required in connection with any registration, qualification or compliance
referred to in this Agreement.




Section 8. Exchange Act Compliance.



With a view to making available to the Investor the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the Commission may at any time permit an Investor to sell
securities of the Corporation to the public without registration or pursuant to a registration on
Form S-3, the Company agrees, on and after becoming subject to reporting obligations under the
federal securities laws, to:



(a) make and keep public information available, as those terms are understood and defined in
Rule 144, at all times after ninety (90) days after the effective date of the first registration
statement filed by the Corporation for the offering of its securities to the general public;



(b) file with the Commission in a timely manner all reports and other documents required of
the Corporation under the Securities Act and the Exchange Act; and



(c) furnish to any Investor, so long as the Investor owns any Registrable Shares, forthwith
upon request (i) a written statement by the Corporation that it has complied with the reporting
requirements of Rule 144 (at any time after ninety (90) days after the effective date of the first
registration statement filed by the Corporation), the Securities Act and the Exchange Act (at any
time after it has become subject to such reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form S-3 (at any time after it so qualifies),
(ii) a copy of the most recent annual or quarterly report of the Corporation and such other reports
and documents so filed by the Corporation, and (iii) such other information as may be reasonably
requested in availing any Investor of any rule or regulation of the Commission which permits the
selling of any such securities without registration or pursuant to such form.




Section 9. No Conflict of Rights.



The Corporation shall not, after the date hereof, grant any registration rights which conflict
with or impair the registration rights granted hereby. In the event the Corporation grants to any
person any registration rights that are superior in scope or substance to the registration rights
granted to the Investor, such superior rights shall be simultaneously granted to such holders.


 


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Section 10. Termination.



This Agreement shall terminate and be of no further force or effect when there shall no longer
be any Registrable Shares outstanding; provided that Sections 4 and 5 shall survive any termination
of this Agreement.




Section 11. Successors and Assigns.



This Agreement shall bind and inure to the benefit of the Corporation and the Investor and,
subject to Section 12, the respective successors and assigns of the Corporation and the Investor.




Section 12. Assignment.



Each Investor may assign its rights hereunder to any purchaser or transferee of Registrable
Shares; provided, however, that such purchaser or transferee shall, as a condition to the
effectiveness of such assignment, be required to execute a counterpart to this Agreement agreeing
to be treated as an Investor whereupon such purchaser or transferee shall have the benefits of, and
shall be subject to the restrictions contained in, this Agreement as if such purchaser or
transferee was originally included in the definition of an Investor herein and had originally been
a party hereto.




Section 13. Entire Agreement.



This Agreement and the other writings referred to herein or therein or delivered pursuant
hereto or thereto, contain the entire agreement among the Investor and the Corporation with respect
to the subject matter hereof and supersede all prior and contemporaneous arrangements or
understandings with respect thereto.




Section 14. Notices.



All notices, requests, consents and other communications hereunder to any party shall be
deemed to be sufficient if contained in a written instrument delivered in person or sent by
telecopy, nationally-recognized overnight courier or first class registered or certified mail
return receipt requested, postage prepaid, addressed to such party at the address set forth below
or such other address as may hereafter be designated in writing by such party to the other parties:




if to the Corporation, to:




Smart Move, Inc.

5990 Greenwood Plaza Blvd, Suite 390

Greenwood Village, CO 80111

Attention: Chris Sapyta, Chief Executive Officer

Phone Number: 303-339-9554

Facsimile Number: 720-488-0199




if to the Investor, to:




Professional Offshore Opportunity Fund, Ltd.

c/o Professional Traders Management, LLC

1400 Old Country Road, Suite 206

Westbury, New York 11590

Telephone: 516-228-0070

Fax: 516-228-8083

Attention: Howard Berger


 


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All such notices, requests, consents and other communications shall be deemed to have
been delivered (a) in the case of personal delivery or delivery by telecopy, on the date of such
delivery, (b) in the case of dispatch by nationally-recognized overnight courier, on the next
business day following such dispatch and (c) in the case of mailing, on the third business day
after the posting thereof.




Section 15. Modifications; Amendments; Waivers.



The terms and provisions of this Agreement may not be modified or amended, nor may any
provision be waived, except pursuant to a writing signed by the Corporation and the holders of at
least a majority of the Registrable Shares then outstanding.




Section 16. Counterparts.



This Agreement may be executed in any number of counterparts, and each such counterpart hereof
shall be deemed to be an original instrument, but all such counterparts together shall constitute
but one agreement.




Section 17. Headings.



The headings of the various sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed to be a part of this Agreement.




Section 18. Governing Law.



This Agreement shall be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed wholly therein.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]



 


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[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]




IN WITNESS WHEREOF, the undersigned have executed and delivered this Agreement as of the date first

set forth above.




	 	 	 	 	 
	 	SMART MOVE, INC. 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	PROFESSIONAL OFFSHORE OPPORTUNITY
FUND, LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	PROFESSIONAL TRADERS FUND, LTD.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	ENTITY DESIGNATED BY SMART MOVE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 


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