Exhibit 10.24


 


Confidential
Materials omitted and filed separately with the 


Securities and
Exchange Commission.  Asterisks denote
omissions.


 


WARRANT
AGREEMENT BETWEEN


 


TANGOE,
INC.


 


AND


 


INTERNATIONAL
BUSINESS MACHINES CORPORATION


 

















 


STOCK
PURCHASE WARRANT


 


Neither
this Warrant nor the Warrant Shares as defined herein have been registered
under the Securities Act of 1933, as amended or any applicable state securities
laws.  Neither this Warrant nor the
Warrant Shares may be sold or transferred in the absence of such registration
or any exemption from such registration.


 


Right to Purchase
the Number of Shares of Common Stock Determined as Provided in this Warrant,
Including Appendix A Hereto


 


Effective Date as
of October 9, 2009


 


TANGOE, Inc., a
Delaware corporation (the “Company”), grants International Business
Machines Corporation, a New York corporation (“IBM” and each of its
successors and assigns, a “Holder”) a warrant (this “Warrant”) to
purchase the Warrant Shares at the Purchase Price; provided, however,
that the number of Warrant Shares for which this Warrant shall be exercisable
shall be determined as provided in Appendix A.  Capitalized terms not otherwise defined have
the definitions set forth in Appendix B.


 


1.   Exercise and Expiration of Warrant.


 


(a)   This Warrant is immediately exercisable and
will expire on October 9, 2016, unless earlier terminated as provided in
this Warrant.   “Exercise Period”
shall mean the period of time between the date hereof and the expiration or
termination of this Warrant in accordance with the terms hereof.


 


(b)  This Warrant
may be exercised during the Exercise Period by the Holder, in whole or in part,
by delivering this Warrant to the Company with payment of the Purchase Price in
U.S. dollars.  In addition, on or after
an IPO, in lieu of such cash payment, the Holder may exercise the Warrant by
delivery to the Company of a written notice of an election to effect a cashless
exercise for Warrant Shares pursuant to this Section 1(b) (“Cashless
Exercise”).  To effect a Cashless
Exercise, the Holder will surrender this Warrant for that number of shares of
Common Stock determined by multiplying the number of Warrant Shares to which it
would otherwise be entitled by a fraction, the numerator of which shall be the
difference between (i) the then current Market Price of a share of the
Common Stock on the date of exercise and (ii) the Purchase Price, and the
denominator of which shall be the then current Market Price per share of Common
Stock. In the event that this Warrant is not exercised in full immediately
prior to the end of the Exercise Period and the then current Market Price of a
share of the Common Stock is greater than the Purchase Price, this Warrant
shall be deemed automatically exercised as to the remaining Warrant Shares at
such time by Cashless Exercise without the delivery of any written notice from
the Holder.


 


(c)  Upon exercise
of this Warrant, the Company will issue to the Holder (i) a certificate or
certificates for the number of full Warrant Shares to which the Holder shall be
entitled upon 


 

















 


such exercise plus the
value of any fractional share to which the Holder would otherwise be entitled,
and (ii) in case such exercise is in part only, a new warrant or warrants
representing the remaining Warrant Shares.


 


(d)  Each exercise
of this Warrant shall be deemed to have been effected immediately prior to the
close of business on the day on which this Warrant shall have been surrendered
pursuant to Section 1(b).


 


2.  Representations.


 


(a)  By the
Holder.  The Holder represents and
warrants to the Company as follows:


 


(i)            It is an “accredited investor”
within the meaning of Rule 501 of the Securities Act.   This Warrant is acquired for the Holder’s
own account for investment purposes and not with a view to any offering or
distribution within the meaning of the Securities Act and any applicable state
securities laws.  The Holder has no
present intention of selling or otherwise disposing of the Warrant or the
Warrant Shares in violation of such laws; and


 


(ii)           The Holder has sufficient knowledge
and expertise in financial and business matters so as to be capable of
evaluating the merits and risks of its investment in the Company.  The Holder understands that this investment
involves a high degree of risk and could result in a substantial or complete
loss of its investment.  The Holder is
capable of bearing the economic risks of such investment.


 


The Holder acknowledges
that the Company has indicated that the Warrant and the Warrant Shares have not
been registered under the Securities Act by reason of their issuance in a
transaction exempt from the registration requirements thereof, and that the
Warrant Shares will bear a legend stating that such securities have not been
registered under the Securities Act and may not be sold or transferred in the
absence of such registration or an exemption from such registration.


 


(b)  By the
Company.  The Company represents and
warrants that:


 


(i)  It (A) is
a corporation duly organized, validly existing and in good standing under the
laws of the state of its organization, (B) has all requisite power and
authority to conduct its business as now conducted and as presently
contemplated and to consummate the transactions contemplated hereby and (C) is
duly qualified to do business and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary.


 


(ii)  It has
outstanding as of the date hereof but before giving effect to this Warrant,
102,055,033 shares of Common Stock, calculated on a fully diluted basis, giving
effect to the conversion of all options, warrants, rights and other securities
convertible into, or exchangeable for, Common Stock.


 

















 


(iii)  The
execution, delivery and performance by the Company of this Warrant (A) has
been duly authorized by all necessary corporate action, (B) does not and
will not contravene the Company’s charter or bylaws or any other organizational
document and (C) does not and will not contravene any applicable law or
any contractual restriction binding on or otherwise affecting the Company or
any of its properties or result in a default under any agreement or instrument
to which the Company is a party or by which the Company or its properties may
be subject.


 


(iv)  This
Warrant has been duly executed and delivered by the Company, and is a legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, moratorium and other laws affecting the rights of creditors
generally and general principles of equity.


 


(v)  Assuming
the accuracy of the representations made by the Holder in Section 2(a) hereof,
and except for the Company’s filing of a Form D and equivalent state
securities law filings, no authorization, consent, approval, license, exemption
or other action by, and no registration, qualification, designation,
declaration or filing with, any governmental authority is or will be necessary
in connection with the execution and delivery by the Company of this Warrant,
the issuance by the Company of the Warrant Shares, the consummation of the
transactions contemplated hereby, the performance of or compliance with the
terms and conditions hereof, or to ensure the legality, validity, and
enforceability hereof.


 


(vi)  The
Company has reserved solely for issuance and delivery upon the exercise of this
Warrant, such number of shares of Common Stock to provide for the exercise in
full of this Warrant.


 


(vii) 
Neither the Company, 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 require registration, or the filing of a prospectus qualifying the
distribution, of this Warrant being issued hereby under the Securities Act or
cause the issuance of this Warrant to be integrated with any prior offering of
securities of the Company for purposes of the Securities Act.


 


3.  Certain Agreements of the Company.  The Company agrees as follows:


 


(a)   Shares to be Fully Paid.  All Warrant Shares will, upon issuance in
accordance with the terms of this Warrant, be validly issued, fully paid, and nonassessable
and free from all taxes, liens, claims and encumbrances.


 


(b)   Authorization and Reservation of Shares.  During the Exercise Period, the Company shall
have duly authorized a sufficient number of shares of Common Stock, free from
preemptive rights and from any other restrictions imposed by the Company
without the consent of the Holder, to provide for the exercise in full of this
Warrant.  The Company shall at all times
during 


 

















 


the Exercise Period
reserve and keep available out of such authorized but unissued shares of Common
Stock such number of shares to provide for the exercise in full of this
Warrant.


 


(c)  Certain
Actions Prohibited.  The Company will
not, by amendment of its charter or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities, or any
other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms to be observed or performed by it hereunder, but will at all
times in good faith assist in the carrying out of all the provisions of this
Warrant and in the taking of all such action as may reasonably be requested by
the Holder of this Warrant in order to protect the exercise privilege of the
Holder of this Warrant against dilution or other impairment, consistent with
the tenor and purpose of this Warrant.


 


(d)   Successors and Assigns.  Except as expressly provided otherwise
herein, this Warrant will be binding upon any entity succeeding to the Company
by merger, consolidation, or acquisition of all or substantially all of the
Company’s assets.


 


(e)   Blue Sky Laws.  The Company shall, on or before the date of
issuance of any Warrant Shares, take such actions as the Company shall
reasonably determine are necessary to qualify the Warrant Shares for, or obtain
exemption for the Warrant Shares for, sale to the Holder of this Warrant upon
the exercise hereof  under applicable
securities or “blue sky” laws of the states of the United States, and shall
provide written evidence of any such action so taken to the Holder of this
Warrant prior to such date; provided, however, that the Company shall not be
required to qualify as a foreign corporation or file a general consent to
service of process in any such jurisdiction.


 


(f)            Right of Notification and Review and
Negotiation Period.  If


 


(i)  the Company
engages a financial advisor to assist the Company in pursuing an Acquisition
Transaction, or the Company’s board of directors adopts a resolution
authorizing the Company to initiate a process regarding a possible sale or
other disposition of the Company to a third party, or


 


(ii) other than in
connection with the activities described in clause (i), the Company receives a
written proposal or written indication of interest from a third party or
otherwise engages in discussions with one or more third parties with respect to
a potential Acquisition Transaction by any such third party, which proposal,
indication of interest or discussions the Company’s board of directors
determines should be pursued by the Company and the Company initiates
discussions regarding an Acquisition Transaction and/or a due diligence process
with such third party


 


(each activity described
in clauses (i) and (ii) hereinafter referred to as “Acquisition
Activity”), then, within five (5) business days after commencement of
such Acquisition Activity, the Company shall provide Holder with written notice
(the “Acquisition Notice”) of the commencement of such Acquisition
Activity and shall indicate in the Acquisition Notice whether the third party,
if any, with which the Company has commenced Acquisition Activity (the 


 

















 


“Acquisition Party”)
is on the list of potential Holder non-favorable acquirers attached hereto as Appendix
D, provided that the Company is in no event obligated to disclose the specific
identity of any such third party or the terms of any proposal or indication of
interest.  Holder shall have the right
to participate in the sale process during a forty-five (45) day period
following Holder’s receipt of the Acquisition Notice (the “Review and
Negotiation Period”).  Such right
shall be exercisable by delivering to the Company a written notice of Holder’s
desire to participate in the sale process within two (2) business days of
Holder’s receipt of the Acquisition Notice (a “Notice of Election to
Participate”).  Prior to the delivery of the Acquisition
Notice to the Holder and during the Review and Negotiation Period (unless
Holder fails to deliver a Notice of Election to Participate), the Company shall
not enter into a definitive agreement (including, without limitation, any
exclusivity agreement, no shop agreement, binding term sheet or merger
agreement) with an Acquisition Party concerning an Acquisition.


 


If Holder timely gives a
Notice of Election to Participate, then during the Review and Negotiation
Period, (a) subject to confidentiality restrictions reasonably
satisfactory to the Company including the execution by Holder of a
nondisclosure or similar agreement, the Company shall provide Holder access to
the Company’s facilities, personnel, management, documents and other
information relating to the Company and its business, products and technology
to enable Holder to conduct a due diligence investigation customary in a merger
and acquisition context, and (b)  Holder may, in its sole discretion,
present a written proposal to the Company relating to an Acquisition, which
written proposal shall include at a minimum the proposed consideration for the
Acquisition, the material conditions to the Acquisition and such other details
as are customary in a formal letter of intent or term sheet for the acquisition
of a private company (a “Holder Proposal”).


 


In the event that Holder
presents the Company with a Holder Proposal prior to the expiration of the
Review and Negotiation Period, the Company shall negotiate with Holder such
Holder Proposal in good faith until the termination of the Review and
Negotiation Period, provided that, unless otherwise agreed in connection with
the Holder Proposal, simultaneous discussions, due diligence and negotiations
may be conducted with other parties and the same shall not constitute a lack of
good faith in negotiating with Holder. 
In the event that Holder presents the Company with a Holder Proposal
prior to the expiration of the Review and Negotiation Period, the Review and
Negotiation Period may be extended at any time by mutual agreement in writing
by both parties.  With respect to each
Acquisition Activity for which Holder received an Acquisition Notice from the
Company and for which the Company materially complied with all of the
applicable procedures and requirements set forth herein (the “Noticed
Activity”), (A) if Holder does not deliver a Notice of Election to
Participate within the required time, or (B) having given a Notice of
Election to Participate, (i) if Holder does not deliver a Holder Proposal
to the Company prior to the expiration of the applicable Review and Negotiation
Period or (ii) upon the expiration of the applicable Review and
Negotiation Period, the Company and Holder have not reached mutually agreeable
terms for the Acquisition Transaction contemplated by a Holder Proposal, then
the Company shall be free to enter into a definitive agreement with respect to
an Acquisition Transaction arising from the Noticed Activity (a “Permitted
Acquisition”) but must notify Holder of its intent to enter into a definitive
agreement with respect to an Acquisition Transaction with another party.


 

















 


Notwithstanding the
foregoing, if while the Company’s Common Stock is publicly traded, the Company’s
Board of Directors determines in good faith (after consultation with outside
counsel) that compliance with all or any portion of its obligations under this Section 3(f) would
be inconsistent with its fiduciary duties under applicable law, then the
Company shall be excused from such compliance, but only to the extent necessary
to make the Company’s performance of its obligations under this Section 3(f) consistent
with the Board’s fiduciary duties under applicable law, as determined in good
faith by the Board of Directors after consultation with outside
counsel.   In such circumstances, the Company will in good faith
provide to Holder as much of the Review and Negotiation Period as is consistent
with the Board’s fiduciary duties, as determined by the Board in good faith
after consultation with outside counsel.  The Company shall give prompt
written notice to the Holder of any determination that the Company is not
obligated to comply with all or any portion of this Section 3(f), which
notice shall include detail as to the resulting process and Review and
Negotiation Period.


 


The provisions of this Section 3(f) shall
terminate upon the closing of a Permitted Acquisition.


 


4.   Antidilution Adjustments.  The Purchase Price and the number of Warrant
Shares may be adjusted from time to time as set forth in Appendix C.


 


5.  Related Agreements.  The Holder is joining the Company’s Sixth
Amended and Restated Voting Agreement dated as of July 28, 2008 and the
Company’s Eighth Amended and Restated Investor Rights Agreement dated as of July 28,
2008 for certain purposes, as set forth in Joinders being entered into by the
Holder as of the initial issuance of this Warrant.


 


6.   Treatment of Warrant in the Event of an
Acquisition Transaction.  If the
Company undertakes an Acquisition Transaction then the Company shall give
prompt notice of such transaction to the Holder and, at the Company’s election,
either (i) cause the Company Acquiror to assume this Warrant and cause
provision to be made so that the Holder shall thereafter be entitled to
receive, upon exercise of this Warrant, the Warrant Shares (as such term is
modified in accordance with this Section 6), whereupon the Company shall
be released from this Warrant, or (ii) pay the Warrant Value to the Holder
upon consummation of the Acquisition Transaction.  If the Company elects to pay the Warrant
Value to the Holder upon consummation of the Acquisition Transaction, the such
Warrant Value shall be paid in the same mix of consideration, at the same
times, and subject to the same escrow and other deferred payment arrangements
as holders of the Company’s Common Stock, and the Holder shall enter into or
otherwise approve and become subject to such purchase agreement, contribution
agreement, escrow agreement and other similar instruments and documents as
other holders of Common Stock in connection with the Acquisition
Transaction.  If the Company complies
with such requirements, this Warrant shall be deemed terminated and cancelled
as of the closing of the Acquisition Transaction.  If the Company undertakes an Acquisition
Transaction and does not elect to pay the Warrant Value to the Holder pursuant
to the foregoing clause (ii), this Warrant shall remain outstanding in
accordance with its terms and all references to the “Company” shall apply to
the Company Acquiror and all references to the “Warrant Shares” shall apply to
the common stock of the 


 

















 


Company Acquiror, and
appropriate modifications to the other terms of this Warrant, including without
limitation the amount of Warrant Shares and the Purchase Price, shall be made
to take into account the Warrant Value as of the date of the Acquisition
Transaction.


 


7.  Transfer, Exchange, Replacement


 


(a) 
Transferability.  (i)  The Holder
covenants not to transfer this Warrant or the Warrant Shares except in
compliance with this Section 7(a). Subject to compliance with the transfer
restrictions set forth in clause (ii) of this Section 7(a), this
Warrant, the Warrant Shares and the rights granted to the Holder hereof are
freely transferable, in whole or in part, upon surrender of this Warrant,
together with an assignment form, at the office or agency of the Company
referred to in Section 8 below.


 


(ii) The Holder may
not transfer, pledge, assign or otherwise dispose of any interest in its right
to exercise this Warrant for Warrant Shares that have not yet vested in
accordance with the terms of Appendix A (except to an Affiliate), it
being understood that the intent of the parties is that the initial Holder (or
its Affiliate) retain rights to unearned Warrant Shares so as to provide to
such Holder incentive with respect to the performance thresholds set forth in Appendix
A.  In addition, the Holder shall not
affect any other transfer except pursuant to a transaction either registered,
or exempt from registration, under the Securities Act.  Prior to any transfer in reliance upon an
exemption from such registration, the Holder shall provide to the Company an
opinion letter from counsel to the Holder (which counsel may include in-house
counsel), reasonably satisfactory to the Company, opining that such transfer
does not require registration under the Securities Act.  The transferee, by acceptance of this
Warrant, acknowledges that it takes such warrant subject to the terms and
conditions hereof.  Until due presentment
for registration of transfer on the books of the Company, the Company may treat
the registered Holder hereof as the owner hereof  for all purposes, and the Company shall not
be affected by any notice to the contrary.


 


(b)  Warrant
Exchangeable for Different Denominations. 
This Warrant is exchangeable, upon the surrender hereof by the Holder
hereof at the office or agency of the Company referred to in Section 8
below, for new warrants of like tenor of different denominations representing
in the aggregate the right to purchase the number of shares of Common Stock
which may be purchased hereunder, each of such new warrants to represent the
right to purchase such number of shares as shall be designated by the Holder
hereof at the time of such surrender.


 


(c) 
Replacement of Warrant.  Upon receipt of
evidence reasonably satisfactory to the Company of the loss, theft,
destruction, or mutilation of this Warrant and, in the case of any such loss,
theft, or destruction, upon delivery of an indemnity agreement reasonably
satisfactory in form and amount to the Company, or, in the case of any such
mutilation, upon surrender and cancellation of this Warrant, the Company, at
its expense, will execute and deliver, in lieu thereof, a new Warrant of like
tenor.


 


(d)   Cancellation; Payment of Expenses.  Upon the surrender of this Warrant in
connection with any transfer, exchange, or replacement as provided in this Section 7,
this 


 

















 


Warrant shall be promptly
canceled by the Company.  The Company
shall pay all taxes (other than securities transfer taxes) and all other
expenses (other than legal expenses, if any, incurred by the Holder or
transferees) and charges payable in connection with the preparation, execution,
and delivery of warrants pursuant to this Section 8.  The Company shall indemnify and reimburse the
Holder of this Warrant for all costs and expenses (including legal fees)
incurred by such Holder in connection with the enforcement of its rights
hereunder.


 


(e)   Warrant Register.  The Company shall maintain, at its principal
executive offices (or such other office or agency of the Company as it may
designate by notice to the Holder hereof), a register for this Warrant, in
which the Company shall record the name and address of the person in whose name
this Warrant has been issued, as well as the name and address of each
transferee and each prior owner of this Warrant.


 


8.   Notices.  Any notices required or permitted to be given
under the terms of this Warrant shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier or by
confirmed telecopy, and shall be effective five days after being placed in the
mail, if mailed, or upon receipt or refusal of receipt, if delivered personally
or by courier, or by confirmed telecopy, in each case addressed to a
party.  The addresses for such
communications to Company for shall be


 


Attn:  Tangoe CEO


35 Executive Boulevard


Orange, CT 06477


 


In connection with Section 3(f) and
Appendix A Vesting Schedule of this Agreement, all IBM communications shall be
to:


 


Attn: Ravi Padmanabhan


TEM Service Category
Leader


1001E Hillside Blvd.


Suite 400


Forrest City, CA 94404


 


All communication, except
for Appendix A Vesting Schedule, to IBM for this Agreement shall be to:


 


Elias Mendoza


VP, Corporate Development


One New Orchard Road


Armonk, NY 10504


 

















 


If to any other Holder,
at such address as such Holder shall have provided in writing to the Company,
or at such other address as any Holder furnishes by notice given in accordance
with this Section 8.


 


9.   Governing Law; Jurisdiction and Venue.  This Warrant shall be governed by the laws of
the State of Delaware without regard to conflicts or choice of law rules or
principles.  Each of the Company and the
Holder submits to the exclusive jurisdiction and venue of the federal and state
courts of Delaware to resolve all issues that may arise out of or relate to
this Warrant. The parties waive any right to a jury trial.


 


10.           Publicity.  The parties hereby agree not to issue or
release any press release, announcement, article, advertising, publicity or
other matter relating to this Warrant, except as may be required by law and, in
such case, only after providing each other with an opportunity to review and,
if appropriate, apply (or request that the other party apply) for protective
order, confidentiality treatment or similar actions.


 


11.  Miscellaneous.


 


(a) 
Amendments.  This Warrant and any
provision hereof may only be amended by an instrument in writing signed by the
Company and all Holders hereof.


 


(b)  U.S.
Dollars.  All references in this Warrant
to “USD”, “dollars” or “$” shall mean the U.S. dollar.


 


(c)  Fractional
Shares.  The Company shall not be
required upon the exercise of this Warrant to issue any fractional shares, but
shall make an adjustment therefore in cash on the basis of the fair market
value per share of Common Stock, as determined in good faith by the Board.


 


(d)  Descriptive
Headings.  The descriptive headings of
the several sections of this Warrant are inserted for purposes of reference
only, and shall not affect the meaning or construction of any of the provisions
hereof.


 


(e)  Business
Day.  For purposes of this Warrant, the
term “business day” means any day, other than a Saturday or Sunday or a
day on which banking institutions in New York, New York or the city and state
provided in Section 8 hereof for notices to the Company, are authorized or
obligated by law, regulation or executive order to close.


 


(f)  Counterparts.
This Agreement may be executed in counterparts, and any such executed
counterpart shall be, and shall be deemed to be, an original instrument.


 


(g) Withdrawal. If,
at any time during the Exercise Period, Holder determines in good faith and in
its sole discretion that for reasons including, but not limited to, US Homeland
Security and other US legal issues, human rights violations, corporate fraud,
bribery or ethical violations, criminal activity, litigation between Holder and
Company, or any factors that Holder 


 

















 


believes constitute a
concern for the Holder, the Holder may, after giving written notice thereof, “put”
back to the Company the Warrants exercised under this Agreement, and any shares
of the Company acquired thereby, at the price of $1.


 


(h) Language. The
Company and Holder agree that this Agreement is written in English, and that
the English version will be the only official version of the Agreement.


 


(i) 
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, it shall be deemed replaced
with a valid and enforceable provision that comes as close as possible to the
economic purpose of the invalid, void or unenforceable provision, and 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.


 


(j) Successors and
Assigns.  This Agreement shall be binding
on, and shall inure to the benefit of, the parties hereto and their respective
successors and assigns, including all permitted Holders.


 


(k)  Survival and
Termination.  The representations,
warranties and covenants made by the parties hereto shall survive the execution
and delivery of this Agreement.  In any
event, this Warrant shall terminate as expressly provided elsewhere in this
Warrant, but in any event upon the earlier of (i) the expiration of the
Exercise Period, or (ii) the exercise of this Warrant in full.  Upon such termination, this Warrant shall be
null and void.


 














 


IN WITNESS
WHEREOF, the undersigned have executed this Warrant as of the date first
written above.


 


 


TANGOE, INC.


 


 


	
  By: 

  	
  /s/ Albert R. Subbloie

  	
   

  
	
   

  	
  Name: Albert R.
  Subbloie

  	
   

  
	
   

  	
  Title: President + CEO

  	
   

  



 


 


INTERNATIONAL BUSINESS
MACHINES CORPORATION


 


 


	
  By: 

  	
  /s/ Elias Mendoza

  	
   

  
	
   

  	
  Name:  Elias Mendoza

  	
   

  
	
   

  	
  Title:  Vice President

  	
   

  



 

















 


APPENDIX
A — VESTING SCHEDULE


 


The number of Warrant
Shares to be issued under the Warrant shall be determined in accordance with
this Appendix A.


 


1.                                      Immediate Warrant Vesting


 


Upon delivery to
the Holder of a duly executed copy of the Warrant, 3,135,554 Warrant Shares
shall immediately vest in the Holder.


 


2.                                      Performance Based Vesting


 


(a)  During the
period beginning on the date of this Warrant and ending on the third
anniversary of the date of this Warrant (the “Vesting Period”), the
Holder may be entitled to up to an additional 8,129,215 Warrant Shares based on
Total Spend during the Vesting Period. 
Specifically, additional Warrant Shares shall immediately vest in the
Holder upon the achievement during the Vesting Period of the Total Spend
threshold(s) as set forth in the table below:


 




	
  Aggregate
  Total Spend Thresholds

  	
   

  	
  Number
  of Additional Warrant Shares Vested

  
	
  [**]

  	
   

  	
  [**]

  
	
  [**]

  	
   

  	
  [**]

  
	
  [**]

  	
   

  	
  [**]

  
	
  [**]

  	
   

  	
  [**]

  
	
  [**]

  	
   

  	
  [**]

  
	
  [**]

  	
   

  	
  [**]

  
	
  [**]

  	
   

  	
  [**]

  






 


(b) Total Spend shall
mean the aggregate amount that has been invoiced by the Company to Holder or
its Affiliates during the relevant time period (regardless of whether or not
such invoices have been paid by Holder) as evidenced by an agreement between
Holder and the Company, such as a purchase order, statement of work, work
authorization, or other agreement entered into after the issuance of this
Warrant and entered into pursuant to that certain Licensed Works Agreement
(so-called Base Agreement, IBM Agreement #4909024709), the related Master
Statement of Work (IBM Contract #4909024862) or pursuant to that certain
Non-Technical Services Agreement (IBM Contract #4998TC0009), and any new
Licensed Works 


 


Appendix A – Vesting Schedule


 

















 


Agreement, Master Statement
of Work, Non Technical Services Agreement and any related statements of work,
purchase order, work authorizations and similar subsequent contracts and
contract addenda between the parties (collectively the “IBM Agreement”).  With respect to the Non Technical Services
Agreement (IBM Contract #4998TC0009), Total Spend shall be limited to invoiced
amounts that relate to new customers who are added under that agreement during
the Vesting Period, and invoiced amounts to the existing customers listed on
the attached Appendix E but only with respect to an expanded purchase of
existing product services or the purchase of new product services (existing
product services are listed on Appendix E for each existing customer).


 


(c)  The amount of
Total Spend along with of number of Warrants that have automatically vested
pursuant to this Section 2(a) shall be set forth in a written report
prepared by the Company and provided to the Holder every six (6) months
during the Vesting Period (a “Spending Report”). The Holder shall have 30
days from the receipt of a Spending Report to object to the information
contained therein, by written notice to the Company  (the “Objection Notice”), failing which it
shall be deemed accepted. An Objection Notice shall set out in reasonable
detail those aspects of the Signings Report with which the Company does not
agree. Thereafter, if an Objection Notice has been issued, the Company and the
Holder shall use commercially reasonable efforts to resolve the dispute set out
in the Objection Notice within 10 days. If the Company and the Holder are
unable to resolve any dispute within such time period, then the Company and the
Holder shall jointly select an accounting firm of national standing in the
United States to resolve the dispute (the “Independent Accountant”). If the
Company and the Holder are unable jointly to select an accounting firm to act
as the Independent Accountant within 5 days, they shall select an accounting
firm by lot (other than the accounting firms engaged by the Company and the
Holder to audit their respective financial statements).   The Independent Accountant shall be
instructed to resolve the matters in dispute, as set out in the Objection
Notice.  The Independent Accountant shall
act as an expert, not an arbitrator, and the determination of the Independent
Accountant shall be final and binding on the Company, and the Holder.  The expenses of the Independent Accountant
shall be borne equally by the Company and the Holder.


 


(d)           In the event that the Company pays
the Warrant Value to the Holder with respect to an Acquisition Transaction that
occurs prior to the end of the Vesting Period, then in connection with such
payment, Total Spend through the date of the closing of the Acquisition
Transaction shall be determined, and in addition the vesting provided for in
paragraph (a) above shall be accelerated as follows:  the Company shall be deemed to have invoiced
additional Total Spend in an amount equal to the aggregate amount that the
Company will be entitled to invoice to customers under the IBM Agreement during
the period from the closing of the Acquisition Transaction through the end of
the Vesting Period, assuming for such purposes that the Company will be
entitled to invoice any fixed or minimum amounts provided for in the applicable
customer agreements.  In the event that
such acceleration results in Total Spend that exceeds a threshold on the table
set forth in paragraph (a), the deemed aggregate Total Spend and resulting
vesting of Warrant Shares shall be rounded up to the next threshold.


 


Appendix A – Vesting Schedule


 

















 


APPENDIX
B — DEFINITIONS


 


“Acquisition
Transaction” shall mean (i) the sale, lease or other transfer, in one
or a series of transactions, of all or substantially all of the Company’s
assets to any person or Group who immediately prior to such transaction did not
own 50% or more of the voting power or the voting stock of the Company, or (ii) the
consummation of any transaction or series of transactions the result of which
is that any person or Group who immediately prior to such transaction did not
own 50% or more of the voting power or the voting stock of the Company
beneficially owns, directly or indirectly, 50% or more of the voting power or
the voting stock of the Company.


 


“Affiliate”
shall mean any entity directly or indirectly controlled by, controlling or
under common control with another entity.


 


“Board”
shall mean the Board of Directors of the Company.


 


“Cashless
Exercise” shall have the meaning specified in Section 1(b) of the
Warrant.


 


“Company”
shall have the meaning specified in the initial paragraph of the Warrant.


 


“Company
Acquiror” means the person or Group (i) to whom the Company’s assets
are transferred as described in clause (i) of the definition of
Acquisition Transaction or (ii) that would beneficially own 50% or more of
the voting power or voting stock of the Company as described in clause (ii) of
such definition.


 


“Common Stock”
shall mean the common shares of the Company.


 


“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended.


 


“Exercise Period”
shall have the meaning specified in Section 1(a) of the Warrant.


 


“Group”
shall have the meaning specified in Section 13(d)(3) of the Exchange
Act.


 


“Holder”
shall have the meaning specified in the initial paragraph of the Warrant.


 


“IBM” shall
have the meaning specified in the initial paragraph of the Warrant.


 


“IPO” shall
mean a bona fide, initial public offering and sale of Common Stock pursuant to
a registration statement filed under the Securities Act of 1933 and declared
effective by the U.S. Securities and Exchange Commission.


 


“Market Price”
shall mean the following:  (i) the
average of the closing sale prices for the shares of Common Stock as reported
on the principal trading exchange or automated quotation system such as Nadsaq
for the Common Stock for the five (5) consecutive trading days 


 


Appendix B – Definitions


 

















 


immediately  preceding such date, or if no sale price is
so reported for such period, the last bid price for such period, or (ii) if
the foregoing does not apply, the last sale price of such security in the
over-the-counter market on the pink sheets or bulletin board for such security
on the last trading day immediately preceding such date, or if  no sale price is so reported for such security,
the average of the last bid and ask price for such security on the last trading
day immediately preceding such date, or (iii) if market value cannot be
calculated as of such date on any of  the
foregoing bases, the Market Price shall be the fair market value  as reasonably determined by an investment
banking firm selected by the Company and reasonably acceptable to the Holder,
with the costs of the appraisal to be borne by the Company.


 


“Person” or “person”
shall mean all natural persons, corporations, business trusts, associations,
companies, partnerships, joint ventures, governments, agencies, political
subdivisions and other entities.


 


“Purchase Price”
shall mean 1.1776 per share of Common Stock, as may be adjusted from time to
time pursuant to Appendix C.


 


“Securities Act”
shall mean the Securities Act of 1933, as amended.


 


“Stock Acquisition”
shall mean an Acquisition Transaction described in clause (ii) of the
definition of Acquisition Transaction.


 


“Warrant”
shall have the meaning specified in the initial paragraph of the Warrant.


 


“Warrant Shares”
shall mean the shares of Common Stock issuable or issued to the Holder upon the
exercise of the Warrant hereunder, the number of which shall be determined as
provided in Appendix A.


 


“Warrant Value”
shall mean the consideration that would be payable or distributable to the
Holder in connection with an Acquisition Transaction if the Holder had
exercised this Warrant in full immediately prior to the closing of the
Acquisition Transaction, for the number of Warrant Shares then purchasable
under this Warrant in accordance with the terms of Appendix A, less the
aggregate Exercise Price for such Warrant Shares.


 


Appendix B – Definitions


 

















 


APPENDIX
C — ANTIDILUTION PROVISIONS


 


(a) 
Recapitalizations.  If outstanding shares
of the Company’s Common Stock shall be subdivided into a greater number of
shares or a dividend in Common Stock shall be paid in respect of Common Stock,
the Purchase Price in effect immediately prior to such subdivision or at the
record date of such dividend shall simultaneously with the effectiveness of
such subdivision or immediately after the record date of such dividend be
proportionately reduced.


 


If outstanding shares of
Common Stock shall be combined into a smaller number of shares, the Purchase
Price in effect immediately prior to such combination shall, simultaneously
with the effectiveness of such combination, be proportionately increased.  See also paragraph (c) of this Appendix
C (“Adjustment in Number of Warrant Shares”).


 


(b)  Mergers;
Transfer of Assets.  Subject to Section 6
of the Warrant, if there shall occur any capital reorganization or
reclassification of the Company’s Common Stock (other than a subdivision or
combination as provided for in (a) above), or any consolidation or merger
of the Company with or into another corporation, or a transfer of all or
substantially all of the assets of the Company, then, as part of any such
reorganization, reclassification, consolidation, merger or sale, as the case
may be, lawful provision shall be made so that the Holder of this Warrant shall
have the right thereafter to receive upon the exercise hereof the kind and
amount of shares of stock or other securities or property which such Holder
would have been entitled to receive if, immediately prior to any such
reorganization, reclassification, consolidation, merger or sale, as the case
may be, such Holder had held the number of shares of Common Stock which were
then purchasable upon the exercise of this Warrant. In any such case, appropriate
adjustment (as reasonably determined in good faith by the Board) shall be made
in the application of the provisions set forth herein with respect to the
rights and interests thereafter of the Holder of this Warrant, such that the
provisions set forth in this Appendix C (including provisions with
respect to adjustment of the Purchase Price) shall thereafter be applicable, as
nearly as is reasonably practicable, in relation to any shares of stock or
other securities or property thereafter deliverable upon the exercise of this
Warrant.


 


(c) 
Adjustment in Number of Warrant Shares. 
When any adjustment is required to be made in the Purchase Price, the
number of Warrant Shares purchasable upon the exercise of this Warrant shall be
changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior
to such adjustment, multiplied by the Purchase Price in effect immediately
prior to such adjustment, by (ii) the Purchase Price in effect immediately
after such adjustment.


 


(d) 
Certificate of Adjustment.  When any
adjustment is required to be made pursuant to this Appendix C, the
Company shall promptly mail to the Holder a certificate setting forth the
Purchase Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. Such certificate shall also set forth the kind
and amount of stock or other securities or property into which this Warrant
shall be exercisable following such adjustment.


 


Appendix C – Antidilution
Adjustments


 

















 


(e) Adjustments
for Non Stock Dividends and Distributions. In the event that the Company shall
issue or pay to holders of Common Stock a dividend or other distribution
payable other than in securities of the Company, then and in each such event
provision shall be made so that the Holder shall receive upon exercise of this
Warrant, in addition to the Warrant Shares issued upon exercise, the dividend
or other distribution which Holder would have received if it had been the
holder of such Warrant Shares at the time of such dividend or distribution


 


(f)  Other
Notices.  In case at any time:


 


(i)       the Company shall declare any dividend
upon the  Common Stock payable in shares
of stock of any class or make any other distribution (other than dividends or
distributions payable in cash out of retained earnings consistent with the
Company’s past practices with respect to declaring dividends and making
distributions) to the holders of the Common Stock;


 


(ii)      the Company shall offer for subscription
pro rata to the holders of the Common Stock any additional shares of stock of
any class or other rights;


 


(iii)     there shall be any capital reorganization
of the Company, or reclassification of the Common Stock, or consolidation or
merger of the Company with or into, or sale of all or substantially all of its
assets to, another corporation or entity; or


 


(iv)  there
shall be a voluntary or involuntary dissolution, liquidation or winding-up of
the Company;


 


then, in each such case,
the Company shall give to the Holder (a) notice of the date on which the
books  of 
the Company shall close or a record shall be taken for determining
the  holders of Common Stock entitled to
receive any such dividend, distribution, or subscription rights or for determining
the holders of Common Stock entitled to vote in respect of any  such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up and (b) in
the case of any such  reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding-up, notice of the date (or, if not then known, a reasonable estimate
thereof by  the Company) when the same
shall take place.  Such notice shall also
specify the date on which the holders of Common Stock shall be entitled to
receive such dividend, distribution, or subscription rights or to exchange
their Common Stock for stock or other securities or property deliverable upon
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding-up, as the case may be. 
The Company undertakes to give such notice at least thirty (30) days
prior to the record date or the date on which the Company’s books are closed in
respect thereto, or such shorter notice as is practical in the
circumstances.  Failure to give any such
notice or any defect  therein shall  not affect the validity of the proceedings
referred to in clauses (i), (ii), (iii) and (iv) above.


 


(g) Certain
Events. If, at any time during the Exercise Period, any event occurs of the
type contemplated by the adjustment provisions of this Appendix C but not
expressly provided for by such provisions, the Company will notice of such
event, and the Board will make an appropriate adjustment in the Purchase Price
and the number of shares of Common Stock acquirable upon


 


Appendix C – Antidilution
Adjustments


 

















 


exercise of this Warrant
so that the rights of the Holder shall be neither enhanced nor diminished by
such event.


 


Appendix C – Antidilution
Adjustments


 

















 


APPENDIX
D — NON-FAVORABLE ACQUIRERS


 


Hewlett-Packard Company /
Electronic Data Systems


Affiliated Computer
Services, Inc.


Computer Sciences
Corporation


Accenture Ltd.


Wipro Ltd.


Tata Consultancy Services
Ltd.


Infosys Technologies Ltd.


Cap Gemini S.A.


Cisco Systems Inc.


Microsoft Corporation


 


Appendix D – Non-Favorable
Acquirers


 

















 


APPENDIX E — NON-TECHNICAL SERVICES LIST


 


	
  Existing
  Customers

  	
   

  	
  Existing
  Product Services

  
	
   

  	
   

  	
   

  
	
  Amgen

  	
   

  	
  Rebilling

  
	
   

  	
   

  	
   

  
	
  Covance

  	
   

  	
  Rebilling

  
	
   

  	
   

  	
   

  
	
  Cigna

  	
   

  	
  Rebilling

  
	
   

  	
   

  	
   

  
	
  Dow Chemical

  	
   

  	
  CDR

  
	
   

  	
   

  	
   

  
	
  Gap

  	
   

  	
  Rebilling

  
	
   

  	
   

  	
   

  
	
  Gap

  	
   

  	
  IPV

  
	
   

  	
   

  	
   

  
	
  Healthnet

  	
   

  	
  Rebilling

  
	
   

  	
   

  	
   

  
	
  IBM Canada

  	
   

  	
  IPV

  
	
   

  	
   

  	
   

  
	
  IBM Global Services (BCRS)

  	
   

  	
  IPV

  
	
   

  	
   

  	
   

  
	
  IBM US

  	
   

  	
  IPV

  
	
   

  	
   

  	
   

  
	
  Nissan

  	
   

  	
  Rebilling

  
	
   

  	
   

  	
   

  
	
  Nissan

  	
   

  	
  IPV

  
	
   

  	
   

  	
   

  
	
  Visteon

  	
   

  	
  Audit

  
	
   

  	
   

  	
   

  
	
  Xcel Energy

  	
   

  	
  IPV

  



 


CDR = Call Detail Reporting


IPV = Invoice Processing
Verification


 


Appendix E – Non-Technical
Services List


 

















 


NOTICE OF EXERCISE


 


TANGOE,
INC.


Attention:  Corporate Secretary


 


The undersigned hereby
elects to purchase, pursuant to the provisions of the Warrant, as follows:


 


o                                                              shares
of Common Stock pursuant to the terms of the attached Warrant, and tenders
herewith payment in cash of the Exercise Price of such Shares in full.


 


o                                    Cashless
Exercise the attached Warrant with respect to 
                  
Shares.


 


	
   

  	
   

  	
  HOLDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name in which shares
  should be registered: