exv10w53









Exhibit
10.53






THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.



July 28, 2008




***SMART MOVE, INC.***




WARRANT TO PURCHASE SHARES OF COMMON STOCK




Warrant to Purchase 3,515,625 Shares

(subject to adjustment as set forth herein)




Exercise Price $0.40 Per Share

(subject to adjustment as set forth herein)




VOID AFTER 5:00 P.M., MOUNTAIN TIME, ON

July 28, 2013




THIS CERTIFIES that, for value received, THOMAS P. GRAINGER, and his successors and assigns
(the “HOLDER”) is entitled, upon the terms hereof, and subject to the exercise conditions and
limitations set forth in Section 17, at any time and from time to time on and after the date
hereof (the “COMMENCEMENT DATE”), and on and prior to 5:00 p.m. Mountain Time on the fifth
anniversary of the date of issuance hereof (the “EXPIRATION DATE”), but not thereafter, to
subscribe for and purchase from SMART MOVE, INC., a Delaware corporation (the “COMPANY”), 3,515,625
shares (the “WARRANT SHARES”) of common stock, $0.0001 par value per share (“COMMON STOCK”), of
the Company. The purchase price of one share of Common Stock under this Warrant shall be the
Exercise Price, as defined below and as may be adjusted from time to time pursuant to the terms
hereof. The Exercise Price and the number of shares for which this Warrant is exercisable shall be
subject to adjustment as provided herein. This Warrant is being issued in connection with the
Purchase Agreement dated on or about the date hereof (the “PURCHASE AGREEMENT”) entered into
between the Company, the Holder and the other Purchasers named therein (if any).



1. DEFINITIONS. Capitalized terms used herein and not otherwise defined shall have the meaning
ascribed thereto in the Purchase Agreement. As used in this Warrant, the following terms shall have
the following respective meanings:


 


 









 





“CHANGE IN CONTROL TRANSACTION” will be deemed to exist if (i) there occurs any consolidation,
merger or other business combination of the Company with or into any other corporation or other
entity or person (whether or not the Company is the surviving corporation), or any other corporate
reorganization or transaction or series of related transactions in which in any of such events the
voting stockholders of the Company prior to such event cease to own 50% or more of the voting
stock, or corresponding voting equity interests, of the surviving corporation after such event
(including without limitation any “going private” transaction under Rule 13e-3 promulgated pursuant
to the Exchange Act), (ii) any tender offer by the Company under Rule 13e-4 promulgated pursuant to
the Exchange Act for 20% or more of the Company’s Common Stock, (iii) any person (as defined in
Section 13(d) of the Exchange Act), together with its affiliates and associates (as such terms are
defined in Rule 405 under the Act), beneficially owns or is deemed to beneficially own (as
described in Rule 13d-3 under the Exchange Act without regard to the 60-day limit on the exercise
period) in excess of 50% of the Company’s voting power, (iv) there is a replacement of more than
one-half of the members of the Company’s Board of Directors which is not approved by those
individuals who are members of the Company’s Board of Directors on the date thereof, or (v) in one
or a series of related transactions, there is a sale or transfer of all or substantially all of the
assets of the Company, determined on a consolidated basis.



“CONVERTIBLE SECURITIES” means any convertible securities, warrants, options or other rights
to subscribe for or to purchase or exchange for, shares of Common Stock.




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




“EXERCISE DATE” shall have the meaning set forth in Section 4.2.1.




“EXERCISE PRICE” means $0.40 per share.



“PRINCIPAL MARKET” shall mean the American Stock Exchange or such other market or exchange on
which the Common Stock is then principally traded.




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




“TRADING DAY” shall mean a day on which there is trading on the Principal Market.



2. TITLE OF WARRANT. The Company shall register this Warrant, upon records to be maintained by
the Company for that purpose, in the name of the record holder hereof from time to time. The
Company may deem and treat the registered holder of this Warrant as the absolute owner hereof for
the purpose of any exercise hereof or any distribution to the holder, and for all other purposes,
and the Company shall not be affected by notice to the contrary except as provided herein.


 


 









 





Prior to the expiration hereof and subject to compliance with applicable securities laws, this
Warrant and all rights hereunder are transferable, in whole or in part, provided that the amount
assigned shall be for the right to purchase at least 10,000 Warrant Shares, at the office or agency
of the Company by the holder hereof in person or by duly authorized attorney, upon surrender of this Warrant together with the Assignment Form annexed hereto properly endorsed. The
term “HOLDER” shall refer to the Holder or any subsequent transferee of this Warrant. If this
Warrant is duly assigned in accordance with the terms hereof, then the Company agrees, upon the
request of the assignee, to amend or supplement promptly any effective registration statement
covering the Warrant Shares so that the such assignee is added as a selling stockholder thereunder,
subject to such assignee providing the information required for such amendment or supplement and
provided that no unreasonable change may be required to the description of the intended methods of
distribution as set forth in the Registration Statement by virtue of such transfer.



3. AUTHORIZATION OF SHARES. The Company covenants that all shares of Common Stock which may be
issued upon the exercise of rights represented by this Warrant will, upon exercise of the rights
represented by this Warrant and payment of the Exercise Price as set forth herein will be duly
authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges
in respect of the issue thereof (other than taxes in respect of any transfer occurring
contemporaneously with such issue or otherwise specified herein).




4. EXERCISE OF WARRANT.



4.1 EXERCISE PROCEDURE. Subject to the terms of Section 1.1 and Section 17.1, 17.2 and 17.3
hereof, the purchase rights represented by this Warrant may be made at any time and from time to
time, in whole or in part, on or after the Commencement Date but before 5:00 p.m. Mountain Time on
the Expiration Date, by (i) delivering the Notice of Exercise annexed hereto duly completed and
executed (which may be by facsimile) to the Company at the principal office of the Company (or such
other office or agency of the Company as it may designate by notice in writing to the registered
holder hereof at the address of such holder appearing on the books of the Company), and upon
payment of the full Exercise Price of the shares thereby purchased, whereupon the holder of this
Warrant shall be entitled to receive a certificate for the number of shares of Common Stock so
purchased. Subject to subsection (b) below, payment of the Exercise Price of the shares shall be by
certified check or cashier’s check or by wire transfer (of same day funds) to an account designated
by the Company in an amount equal to the Exercise Price multiplied by the number of shares being
purchased. The Company and the Holder expressly agree that if on the date of any exercise
election by Holder under this Warrant a registration statement pursuant to the 1933 Act covering
the resale of the WARRANT SHARES that are the subject of the Exercise Notice by the Holder is not
available for the resale of such WARRANT SHARES, the Holder may exercise its right to receive
Common Stock on a net basis such that, without any payment of funds by the Holder, the Holder
receives that number of shares of Common Stock equal to: (A) the WARRANT SHARES multiplied by: (B)
the ratio of (i) the “Market Price” defined below less the EXERCISE PRICE; divided by (ii) the
Market Price. “Market Price” means, the average of the daily closing prices for a share of the
Company’s Common Stock in the PRINCIPAL MARKET for the ten (10) consecutive trading days before
such date excluding any trades which are not bona fide arm’s length transactions.


 


 









 





4.2 ISSUANCE OF WARRANT SHARES AND UNEXERCISED WARRANTS. In the event that this Warrant is not
exercised in full, the number of Warrant Shares shall be reduced by the number of such Warrant
Shares for which this Warrant is exercised and/or surrendered, and the Company, at its expense, shall within five (5) Trading Days,
issue and deliver to or upon the order of the Holder a new Warrant of like tenor in the name of the
Holder or as the Holder (upon payment by the Holder of any applicable transfer taxes) may request,
reflecting such adjusted number of Warrant Shares.




4.2.1 All exercises of this Warrant are subject to the provisions of Section 17 hereof.
Any exercise permitted hereunder will be deemed to occur as of the date of receipt by the
Company of a validly executed Notice of Exercise (or such later date as may be indicated on
such Notice of Exercise) (such date being referred to herein as the “EXERCISE DATE”) and
payment as required hereunder, whereupon certificates for shares of Common Stock subject to
such Notice of exercise and then purchasable hereunder shall be delivered to the Holder
hereof within five (5) Trading Days after the Exercise Date; provided, that if prior to such
date the Company has not received the Warrant or an affidavit of lost Warrant, then such
delivery may be extended until one Trading Day after receipt of such Warrant or affidavit by
the Company. The Holder may withdraw its Notice of Exercise under Section 4(a) or 4(b) at
any time thereafter, in whole or in part, if the Company fails to timely deliver the
applicable certificates to the Holder as provided in this Warrant.




4.2.2 In lieu of delivering physical certificates representing the Warrant Shares
issuable upon conversion of this Warrant, provided the Company’s transfer agent is
participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer
(“FAST”) program, upon request of the holder, the Company shall use its commercially
reasonable best efforts to cause its transfer agent to electronically transmit the Warrant
Shares issuable upon exercise to the holder, by crediting the account of the holder’s prime
broker with DTC through its Deposit Withdrawal Agent Commission (“DWAC”) system. The time
periods for delivery described above shall apply to the electronic transmittals through the
DWAC system. The Company agrees to coordinate with DTC to accomplish this objective.



5. NO FRACTIONAL SHARES OR SCRIP. No fractional Warrant Shares or scrip representing
fractional Warrant Shares shall be issued upon the exercise of this Warrant. Any fractional share
or scrip shall be rounded up to the nearest whole number.



6. CHARGES, TAXES AND EXPENSES. Issuance of certificates for shares of Common Stock upon the
exercise of this Warrant shall be made without charge to the holder hereof for any issue or
transfer tax or other incidental expense in respect of the issuance of such certificate, all of
which taxes and expenses shall be paid by the Company (other than income, franchise or similar
taxes) and such certificates shall be issued in the name of the holder of this Warrant or in such
name or names as may be directed by the holder of this Warrant; PROVIDED, HOWEVER, that in the
event certificates for shares of Common Stock are to be issued in a name other than the name of the
holder of this Warrant, this Warrant when surrendered for exercise shall be accompanied by the
Assignment Form attached hereto duly executed by the holder hereof; and PROVIDED FURTHER, that the
Company shall not be required to pay any tax or taxes which may be payable in respect of any
transfer involved in the issuance of any Warrant certificates or any certificates for the Warrant Shares in a name other than the name of the
holder.


 


 









 





7. CLOSING OF BOOKS. The Company will at no time close its shareholder books or records in any
manner which interferes with the timely exercise of this Warrant.



8. NO RIGHTS AS SHAREHOLDER UNTIL EXERCISE. Subject to Sections 11 and 12 of this Warrant and
the provisions of any other written agreement between the Company and the Holder, prior to the
exercise of this Warrant as provided herein, the Holder shall not be entitled to vote or receive
dividends or be deemed the holder of Warrant Shares or any other securities of the Company that may
at any time be issuable on the exercise hereof for any purpose, nor shall anything contained herein
be construed to confer upon the Holder, as such, any of the rights of a stockholder of the Company
or any right to vote for the election of directors or upon any matter submitted to stockholders at
any meeting thereof, or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par value, or change of
stock to no par value, consolidation, merger, conveyance or otherwise) or to receive notice of
meetings, or to receive dividends or subscription rights. However, at the time of the exercise of
this Warrant pursuant to Section 4 hereof, the Warrant Shares so purchased hereunder shall be
deemed to be issued to such Holder as the record owner of such shares as of the close of business
on the date on which this Warrant shall have been exercised.



9. LOSS, THEFT, DESTRUCTION OR MUTILATION OF WARRANT; DENOMINATION. In the event that any
holder notifies the Company that its Warrant(s) have been lost, stolen or destroyed, then
replacement Warrant(s) identical in all respects to the original Warrant(s) (except for any
registration number and any adjustments to Exercise Price or the number of Warrant Shares issuable
hereunder pursuant hereto, if different than that shown on the original Warrant(s)) shall be
delivered to the holder by the Company within five (5) Trading Days, provided that such holder
executes and delivers to the Company an agreement reasonably satisfactory to the Company to
indemnify the Company from any loss incurred by it in connection with such Warrants. This Warrant
is exchangeable for an equal aggregate number of Warrants of different denominations, as requested
by the holder surrendering the same. No service charge will be made for such registration,
replacement, transfer or exchange.



10. SATURDAYS, SUNDAYS, HOLIDAYS, ETC. If the last or appointed day for the taking of any
action or the expiration of any right required or granted herein shall be a Saturday, Sunday or a
legal holiday, then such action may be taken or such right may be exercised on the next succeeding
day not a legal holiday.



11. EFFECT OF CERTAIN EVENTS. The Company shall not consummate a Change in Control Transaction
unless the entity resulting from such transaction (if not the Company), or such transferee entity,
as the case may be, shall expressly assume, by supplemental agreement reasonably satisfactory in
form and substance to the Holder, the due and punctual performance and observance of each and every
covenant and condition of this Warrant to be performed and observed by the Company.


 


 









 






12. ADJUSTMENTS OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES.



12.1 STOCK DIVIDENDS, SPLITS, COMBINATIONS AND RECLASSIFICATIONS. If, to the extent not
covered by Section 11 above, the Company or any Subsidiary, at any time while this Warrant or any
portion thereof is issued, outstanding and unexpired: (A) shall declare or pay a stock dividend or
otherwise make a distribution or distributions on any equity securities (including securities
convertible into or exchangeable or exercisable for such equity securities) in shares of Common
Stock; (B) subdivide outstanding Common Stock into a larger number of shares; (C) combine
outstanding Common Stock into a smaller number of shares; or (D) issue any shares of its capital
stock in a reclassification of the Common Stock (including without limitation in connection with
any merger or consolidation), then the Exercise Price hereunder shall be adjusted by multiplying
the Exercise Price by a fraction of which the numerator shall be the number of shares of Common
Stock (excluding treasury shares, if any) outstanding before such event and of which the
denominator shall be the number of shares of Common Stock (excluding treasury shares, if any)
outstanding after such event. Any adjustment made pursuant to this Section 12(a) shall become
effective immediately after the record date for the determination of shareholders entitled to
receive such dividend or distribution and shall become effective immediately after the effective
date in the case of a subdivision or combination.



12.2 REORGANIZATION, MERGER OR GOING PRIVATE. In case of any reorganization or any
reclassification of the capital stock of the Company or any consolidation or merger of the Company
with or into any other corporation or corporations or a sale or transfer of all or substantially
all of the assets of the Company to any other person or a “going private” transaction under Rule
13e-3 promulgated pursuant to the Exchange Act, in each case other than a Change in Control
Transaction, then, as part of such reorganization, consolidation, merger, or transfer if the
holders of shares of Common Stock receive any publicly traded securities as part or all of the
consideration for such reorganization, consolidation, merger or sale, then it shall be a condition
precedent of any such event or transaction that provision shall be made in a manner reasonably
satisfactory to the Holder such that this Warrant shall thereafter be exercisable for such new
securities at and exercise price and pricing formula which places the Holder in an economically
equivalent position as it would have been if not for such event. In addition to the foregoing, if
the holders of shares of Common Stock receive any non-publicly traded securities or other property
or cash as part or all of the consideration for such reorganization, consolidation, merger or sale,
in each case other than a Change in Control Transaction, then such distribution shall be treated to
the extent thereof as a distribution under Section 12(b) above and such Section shall also apply to
such distribution.



12.3 INVERSE PROPORTIONAL ADJUSTMENTS TO EXERCISE PRICE AND WARRANT SHARES. In the event of
any adjustment in the number of Warrant Shares issuable hereunder upon exercise, the Exercise Price
shall be inversely proportionately increased or decreased as the case may be, such that aggregate
purchase price for Warrant Shares upon full exercise of this Warrant shall remain the same.
Similarly, in the event of any adjustment in the Exercise Price, the number of Warrant Shares
issuable hereunder upon exercise shall be inversely proportionately increased or decreased as the case may be, such that aggregate purchase
price for Warrant Shares upon full exercise of this Warrant shall remain the same.


 


 









 






13. NOTICES. If:




13.1 the Company shall declare a dividend (or any other distribution) on its Common Stock; or




13.2 the Company shall declare a cash dividend on or a redemption of its Common Stock; or



13.3 the Company shall authorize the granting to all holders of the Common Stock rights or
warrants to subscribe for or purchase any shares of capital stock of any class or of any rights; or



13.4 the approval of any stockholders of the Company shall be required in connection with any
reclassification of the Common Stock of the Company, any consolidation or merger to which the
Company is a party, any sale or transfer of all or substantially all of the assets of the Company,
or any compulsory share exchange whereby the Common Stock is converted into other securities, cash
or property; or



13.5 the Company shall authorize the voluntary dissolution, liquidation or winding up of the
affairs of the Company; then the Company shall cause to be mailed to each Holder at their last
addresses as they shall appear upon the Warrant register of the Company, at least 20 calendar days
prior to the applicable record or effective date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend, distribution, redemption,
rights or warrants, or if a record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are
to be determined and/or (y) the date on which such reclassification, consolidation, merger, sale,
transfer or share exchange is expected to become effective or close, and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation or winding up.



14. VOLUNTARY ADJUSTMENT BY THE COMPANY. The Company may at its option, at any time during the
term of this Warrant, reduce but not increase the then current Exercise Price to any amount and for
any period of time deemed appropriate by the Board of Directors of the Company.



15. NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or number or kind of
securities or other property purchasable upon the exercise of this Warrant or the Exercise Price is
adjusted, the Company shall promptly mail by registered or certified mail, return receipt
requested, to the holder of this Warrant a notice setting forth the number of Warrant Shares (and
other securities or property) purchasable upon the exercise of this Warrant and the Exercise Price
of such Warrant Shares after such adjustment, setting forth a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made.


 


 









 





16. AUTHORIZED SHARES. The Company covenants that during the period this Warrant is
outstanding and exercisable, it will reserve from its authorized and unissued Common Stock a
sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of
any and all purchase rights under this Warrant. The Company further covenants that its issuance of
this Warrant shall constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates for the Warrant Shares
upon the exercise of the purchase rights under this Warrant. The Company will take all such
reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided
herein without violation of any applicable law or regulation, or of any requirements of the
Principal Market or any other domestic securities exchange or market upon which the Common Stock
may be listed.




17. EXERCISE LIMITATION.



17.1 Except as expressly provided in this Section 17, the number of shares of Common Stock
that may be acquired by the Holder at any time upon exercise of this Warrant shall not: i) exceed a
number that when added to the total number of shares of Common Stock which Holder or Holder’s
“affiliates” (as defined in Rule 144 of the Securities Act) then own(s) or is/are deemed to
beneficially own or that would be aggregated for purposes of determining whether a group under
Section 13(d) of the Exchange Act exists (“AGGREGATION PARTIES”), would exceed thirty (35%) of the
total issued and outstanding shares of the Common Stock (the “RESTRICTED OWNERSHIP PERCENTAGE”); or
ii) under any other circumstances have the effect of causing or enabling a CHANGE IN CONTROL
TRANSACTION to occur that would not otherwise occur. For purposes of this Section 17.1, the number
of shares Holder beneficially owns or is deemed to beneficially own shall have the meaning
described in Rule 13d-3 under the Exchange Act, determined without regard to the 60-day limit on
the exercise period, except that the RESTRICTED OWNERSHIP PERCENTAGE shall be deemed to exclude all
shares of Common stock concurrently being sold by the Holder and all shares remaining acquirable
hereunder or under other CONVERTIBLE SECURITIES then held by the Holder that are expressly subject
to the terms of this Section 17.1 and Section 17.2 below.



17.2 The Holder and the Company each agrees that the RESTRICTED OWNERSHIP PERCENTAGE
limitations set forth in Section 17.1 shall be applicable for so long as the shares of the
Company’s Common Stock are traded in the PRINCIPAL MARKET, and the terms of Section 17.1 above and
this Section 17.2 are hereby adopted to be incorporated by reference into the terms of any and all
other existing warrants, convertible notes or other securities currently evidencing Holder’s right
to acquire unissued shares of Common Stock of the Company. The Company and Holder each
acknowledges that the effect of these limitations may be that Holder’s ability fully to exercise
this Warrant to purchase shares of Common Stock and/or to exercise conversion or purchase rights
under other CONVERTIBLE SECURITIES may depend upon the extent to which Holder’s prior or
concurrent sale or other disposition of shares of Common Stock has reduced Holder’s beneficial
ownership (or that of AGGREGATION PARTIES) to a level not exceeding the RESTRICTED OWNERSHIP PERCENTAGE.


 


 









 





17.3 The Holder further covenants at all times on each day during which Holder elects to
exercise his right to purchase shares of Common Stock hereunder (each such time being referred to
as a “COVENANT EVENT “) that Holder will not acquire shares of Common Stock pursuant to any right
to acquire such shares hereunder to the extent the number of shares so acquired by such Holder and
its Aggregation Parties would exceed the RESTRICTED OWNERSHIP PERCENTAGE. This Section 17.3
controls in the case of any conflict with any other provision of any agreement entered into in
connection with Holder’s prior acquisition of any CONVERTIBLE SECURITIES issued by the Company.



17.4 The limitations contained in Sections 17.1, 17.2 and 17.3 above of this Section 17
maybe enforced by the Company as follows: the Company’s obligation to issue Common Stock which
would exceed the limits referred to in Sections 17.1, 17.2 and 17.3 of this Section 17 shall be
suspended to the extent necessary until such time, if any, as shares of Common Stock may be issued
in compliance with such restrictions. If the Holder of the Warrant has remitted funds for the
exercise of warrants, and if the limitations of this Section 17 apply on a basis that will require
deferral of such exercise in whole or in part as to any such shares by more than ten (10) business
days, the Company will promptly notify the Holder of the cancellation of the Holder’s exercise
request as to such shares and will return to the Holder of the Warrant any funds corresponding to
the shares subject to deferred exercise.



17.5 The Company hereby acknowledges that the Holder may be prevented from fully exercising
the Warrant and other CONVERTIBLE SECURITIES covered prior to the EXPIRATION DATE to the extent
that: i) the level of Holder’s ownership of Common Stock on the EXERCISE DATE exceeds the
RESTRICTED OWNERSHIP PERCENTAGE, and ii) Holder is unable to reduce his ownership of shares of
Common Stock as a result of the volume limitations of Rule 144, which restrict the number of shares
that may be sold by an affiliate in any three-month period to the greater of 1% of the number of
shares then outstanding or the average weekly trading volume of the Company’s common stock during
the four calendar weeks preceding the filing of a notice on Form 144 (“RULE 144 LIMITATIONS”). The
Company and Holder agree that if the Holder has sent to the Company at least one Notice of Exercise
of the Warrant and/or other CONVERTIBLE SECURITIES made subject to the RESTRICTED OWNERSHIP
PERCENTAGE under Section 17.2 hereof to the Company during the twelve months immediately preceding
the Expiration Date, to the extent the Holder was not permitted to complete the exercise covered by
such Notice(s) solely because of the applicability of the RESTRICTED OWNERSHIP PERCENTAGE and/or
RULE 144 LIMITATIONS, then the Holder shall be permitted to continue the process of exercising (or
attempting to exercise) this Warrant and/or other CONVERTIBLE SECURITIES for up to an additional
eighteen months after the EXPIRATION DATE, but only as to the specific number of shares of Common
Stock which the Holder had elected to purchase but was unable to purchase pursuant to such
Notice(s) of Exercise.


 


 









 






18. MISCELLANEOUS.



18.1. Holder Not A Shareholder. Except as otherwise specifically provided in this
Warrant, prior to the exercise of the Warrant no Holder shall be entitled to any of the rights of a
shareholder of the Company, including the right as a shareholder to (a) vote or consent or (b)
receive dividends or any other distributions made in respect of Shares.



18.2. Notices. Any notice, demand or delivery to be made pursuant to the provisions
of this Warrant shall be in writing and (a) shall be deemed to have been given or made one day
after the date sent (i) if by the Company, by prepaid overnight delivery addressed to each Holder
at its last known address appearing on the books of the Company maintained for such purpose or (ii)
if by a Holder, by prepaid overnight delivery, addressed to the Company at the Company’s address at
5990 Greenwood Plaza Blvd, Suite 390, Greenwood Village, Colorado 80111; and (b) if given by
courier or confirmed facsimile transmission shall be deemed to have been made or given when
received. Each Holder and the Company may each designate a different address by notice to the other
in the manner provided in this §18.2.



18.3. Successors and Assigns. Subject to all conditions and limitations contained
herein and to the requirements of applicable law, this Warrant and the rights evidenced by the
Warrant shall inure to the benefit of and be binding upon the lawful successors and assigns of the
Company and each Holder. The provisions of this Warrant are intended to be for the benefit of the
Holder of the Warrant or the Warrant Shares and shall be enforceable by the Holders.



18.4. Actions by Holder; Amendments and Waivers. Any provision of this Warrant may be
amended, waived or modified upon the written consent of the Company and the Holder. Any amendment,
waiver, modification or consent entered into pursuant to this Section 18.4 shall be effective only
in the specific instance and for the specific purpose for which it was given.



18.5. Headings; Severability. The descriptive headings of sections of this Warrant
are provided solely for convenience of reference and shall not, for any purpose, be deemed a part
of this Warrant. Should any part of the Warrant or this Warrant for any reason be declared invalid,
such decision shall not affect the validity of any remaining portion, which shall remain in force
and effect as if the Warrant and this Warrant had been executed with the invalid portion
eliminated. It is the intention of the Company and the Holder that they would have executed and
accepted the remaining portion of the Warrant and this Warrant without including in such remaining
portion any such part, parts or portion which may, for any reason, be hereafter declared invalid.



18.6. Governing Law. The Warrant and this Warrant and all matters concerning the
Warrant and this Warrant shall be governed by the laws of the State of Colorado for contracts
entered into and to be performed in such state without regard to principles of conflicts of laws;
provided however, that with respect to the Company’s internal corporate matters, the laws
of the State of Delaware shall govern.


 


 









 





18.7. Survival of Certain Provisions. Except as otherwise provided, the provisions of
this Warrant shall survive the exercise of the Warrant and shall continue in full force and effect
following such exercise until all Warrant Shares are no longer restricted securities under the
federal securities laws.



18.8. Specific Performance. The Company acknowledges and agrees that the Holders
would be damaged irreparably in the event any of the provisions of this Warrant are not performed
in accordance with their specific terms or otherwise are breached. Accordingly, the Company agrees
that the Holders shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Warrant and to enforce specifically this Warrant and the terms and provisions of
this Warrant in any action instituted in any federal or state court in the United States having
jurisdiction over the parties and the matter, in addition to any other remedy to which the Holders
may be entitled, at law or in equity.



18.9. Consent to Jurisdiction. THE COMPANY HEREBY CONSENTS TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF DENVER, STATE OF COLORADO AND IRREVOCABLY
AGREES THAT, SUBJECT TO THE HOLDER’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS WARRANT SHALL BE LITIGATED IN SUCH COURTS. THE COMPANY ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND
BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT.
THE COMPANY DESIGNATES AND APPOINTS CHRIS SAPYTA, AND SUCH OTHER PERSON AS MAY HEREAFTER BE
SELECTED BY THE COMPANY WHO IRREVOCABLY AGREES IN WRITING TO SO SERVE AS ITS AGENT TO RECEIVE ON
ITS BEHALF SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING
HEREBY ACKNOWLEDGED BY THE COMPANY TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A COPY OF
ANY SUCH PROCESS SO SERVED SHALL BE MAILED BY THE HOLDER BY REGISTERED MAIL TO THE COMPANY AT ITS
ADDRESS PROVIDED IN §12.2 AND SHALL BE DEEMED TO HAVE BEEN RECEIVED BY THE COMPANY FIVE (5) DAYS
AFTER BEING SO MAILED. IF ANY AGENT APPOINTED BY THE COMPANY REFUSES TO ACCEPT SERVICE, THE
COMPANY HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING IN
THIS WARRANT SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF HOLDER TO BRING PROCEEDINGS AGAINST THE COMPANY IN THE COURTS OF ANY OTHER
JURISDICTION.


 


 









 





18.10. Waiver of Jury Trial. EACH OF THE COMPANY AND THE HOLDER HEREBY WAIVES THE
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY
RELATING TO: (A) THIS WARRANT, OR (B) ANY OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN
THE HOLDER AND THE COMPANY; OR (C) ANY CONDUCT, ACTS OR OMISSIONS OF THE COMPANY OR THE HOLDER OR ANY OF THEIR DIRECTORS, MANAGERS, OFFICERS,
EMPLOYEES, AGENTS, PARTNERS, REPRESENTATIVES, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH THE
COMPANY OR THE HOLDER; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN TORT OR OTHERWISE. EACH
OF THE COMPANY AND THE HOLDER ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH
MIGHT, BUT FOR THIS WAIVER, BE REQUIRED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE
SUBJECT MATTER OF THIS WARRANT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND
ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF THE COMPANY AND THE HOLDER ACKNOWLEDGES THAT
THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY
RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE
WAIVER IN THEIR RELATED FUTURE DEALINGS. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS WARRANT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE WARRANT. EACH OF THE COMPANY AND THE HOLDER FURTHER WARRANTS AND REPRESENTS THAT
EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.



IN WITNESS WHEREOF, this Warrant has been duly executed as of the day and year first above
written.



	 	 	 
	 

	 	SMART MOVE, INC.
	 
	 	 
	 
	 	 
	 

	 	 
	 

	 	Chris Sapyta
	 

	 	President
	 
	 	 
	 
	 	 
	 

	 	 
	 

	 	Thomas P. Grainger





 


 









 





ELECTION TO EXERCISE WARRANT




TO: Smart Move, Inc.:



The undersigned registered holder of the Warrant, a true and correct copy of which is attached to
this election notice, irrevocably exercises the Warrant and purchases pursuant to such exercise
                                         Shares of the Company, makes payment of $                     for such Shares, and requests that the
certificates for such Shares be issued in the name of the undersigned holder or its nominee and
delivered to such holder at holder’s address on the books of the Company. The undersigned
represents as of the date hereof that, after giving effect to the exercise of this Warrant pursuant
to this Notice of Exercise, the undersigned will remain in compliance with Section 17.2 of the
Warrant and not exceed the “Restricted Ownership Percentage” contained in Section 17.1 of the
Warrant.



Entity Name (if applicable):



	 	 	 
	 


	 	 






	 	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	Date:

	 	 

	 	 
	 

	 	 

	 	 






ASSIGNMENT




FOR VALUE RECEIVED, the undersigned registered holder of the Warrant attached to this
assignment notice, sells, assigns and transfers unto                                          the Warrant and all rights
evidenced by such Warrant and does irrevocably constitute and irrevocably appoints Corporate Stock
Transfer, Inc. or other duly appointed transfer agent for the securities as the undersigned’s
attorney to transfer such Warrant on the books of the Company.



The undersigned represents as of the date hereof that, after giving effect to all prior exercises
of this Warrant pursuant to any Notice of Exercise, the undersigned assignor is in compliance with
Section 17.2 of the Warrant and has not exceed the “Restricted Ownership Percentage” contained in
Section 17.2 of the Warrant.



Entity Name (if applicable):



	 	 	 
	 


	 	 






	 	 	 	 	 
	By:
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	Date:

	 	 

	 	 
	 

	 	 

	 	 






	 	 	 	 	 	 	 
	Dated:

	 	 	 	Print Name of Holder:	 	 
	 

	 	 
	 	 	 	 






	 	 	 	 	 	 	 
	 

	 	(Sign) By:	 	 	 	 
	 

	 	 	 	 

Print Name:
	 	 
	 

	 	 	 	Print Title: