exv10w28



 




Exhibit 10.28




GRANT AGREEMENT

SMART MOVE, INC. 2006 EQUITY INCENTIVE PLAN




This Grant Agreement (“Grant Agreement”) made and entered into between Smart Move, Inc., a
Delaware corporation (the “Company”), and                                          (the “Participant”) evidences the
grant to Participant of an option to purchase shares of Company Stock (“Shares”) provided for below
(the “Option”) pursuant to the Smart Move, Inc. 2006 Equity Incentive Plan (the “Plan”). This
Grant Agreement and the Option granted hereunder is expressly subject to all of the terms,
definitions and provisions of the Plan as it may be amended and restated from time-to-time.
Capitalized terms used in this Grant Agreement and not defined herein shall have the meanings
attributed to them in the Plan.



1. Grant of Option. The Company hereby grants to Participant an Option (the “Grant”) for the
purpose and on the terms set forth below:



	 	 	 
	Purpose

	 	This Grant is made for the purposes
and in furtherance of the objectives
set forth in the Plan and is designed
to provide incentives to Participant
to exert maximum efforts for the
success of the Company and its
subsidiaries (as “Employer”) and to
align Participant’s interests with
those of the Company’s stockholders.
Participant recognizes that the
Option represents a potentially
significant benefit to Participant
and is granted for the purposes
stated herein.

	 
	 	 
	Grant Date

	 	[December 29, 2006]
	 
	 	 
	Exercise Price of Option

	 	[$4.73] per Share (being the closing
price of the Company Stock on the
Grant Date), which has been
determined to be the Fair Market
Value of a Share of the Company Stock
on the Grant Date.

	 
	 	 
	Type of Option

	 	Incentive Stock Option
	 
	 	 
	 

	 	Any Option granted to an employee of
the Company shall be an “Incentive
Stock Option” or “ISO” as described
in, and to the fullest extent
permitted under Section 422 of the
Code.

	 
	 	 
	 

	 	In the event that an Option granted
to an employee exceeds the $100,000
limitation of Section 422(d) of the
Code, the excess shall be treated as
a “Nonqualified Stock Option” (which
means any stock option that is not an
ISO). An Option granted to a
non-employee director, independent
contractor or other person not
eligible to receive an ISO grant
under Section 422 of the Code shall
be a Nonqualified Stock Option that
is not intended to qualify as an ISO
within the meaning of Section 422 of
the Code.

	 
	 	 
	Number of Shares covered by Option

	 	 
                                                            






 


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	Vesting

	 	Subject to the provisions of the Plan
and Participant’s continued
employment with the Company, the
Option shall vest and become
exercisable as to [25% of the Shares
covered by the Option on the Grant
Date specified above and shall vest
as to the balance (75% of the Shares
covered by the Option) in equal
quarterly increments over the next
following 12 calendar quarters as of
the end of each quarter commencing
March 30, 2007.]

	 
	 	 
	Term

	 	Options expire ten (10) years from
the Grant Date, subject to earlier
termination of unexercised, vested
Options as provided herein or as set
forth in the Plan.







2. Exercise of Option.




	 	a)	 	Manner of Exercise. Except as provided in the Plan, Participant may exercise a
vested Option, in whole or in part, at any time during the term of the Option by providing
written notice to the Company stating the number of Shares in respect of which the Option
is being exercised accompanied by payment of the aggregate Exercise Price. Such written
notice may be delivered in person or by certified mail to the Corporate Secretary of the
Company or in such other form or manner as the Compensation Committee of the Board of
Directors of the Company (the “Committee”) may approve or any administrative agent engaged
by the Company may specify for such purpose. The Option may not be exercised with respect
to a number of Shares that is less than the lesser of (i) twenty-five or (ii) the total
number of Shares remaining available for exercise pursuant to this Grant Agreement.

	 
	 	b)	 	Payment. In order for an exercise of the vested Option to be effective,
Participant must pay the aggregate Exercise Price and any withholding taxes required to be
withheld with respect to the Shares being purchased. Such payment shall be made to the
Company in cash or pursuant to such other payment terms and arrangements as the Committee
may accept.






3. Transferability of Option. The Options granted hereby shall not be transferable
except in accordance with the following provisions:




	 	a)	 	Limit on Transfers. During Participant’s lifetime, all Options shall be
exercisable, only by Participant or by the legal guardian of a disabled Participant.





 


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	 	b)	 	Dispositions to Beneficiaries. Participant shall have the right to designate a
beneficiary who shall be entitled to exercise Participant’s Options (subject to their terms
and conditions) following Participant’s death, and to whom any amounts payable following
Participant’s death shall be paid. Such designation shall be made in such manner and in
accordance with such procedures as may be established by the Committee from time to time.
If no beneficiary designation has been made to the Committee at the time of Participant’s
death, then Participant’s beneficiary shall be deemed to be Participant’s estate or heirs
pursuant to the laws of descent and distribution. In order to exercise a Option after
Participant’s death, the beneficiary, or if no beneficiary designation has been made the
personal representative of Participant’s estate or Participant’s lawful heirs, must agree
to be bound by the provisions of the Plan and this Grant Agreement and to be treated as the
“Participant” under the Plan and the Grant Agreement. All references to the
“Participant” under the Plan and this Grant Agreement shall be deemed to refer to
Participant’s beneficiaries, the personal representative of Participant’s estate or
Participant’s heirs, as applicable after his or her death; provided, however, that
references in the Plan or this Grant Agreement to the employment of a Participant or to the
termination of such Employment or to any competitive activity by a Participant shall
continue to refer to the employment or any competitive activity of Participant.







	 	c)	 	Legal Restrictions on Transferability and Exercise. The Option covered hereby
may not be exercised in any manner or at any time if the issuance of Shares upon the
exercise of the Option or the method of payment of consideration for such Shares would
constitute a violation of any applicable federal or state securities or other law or
regulation, including any rule under Part 207 of Title 12 of the Code of Federal
Regulations (“Regulation G”) as promulgated by the Federal Reserve Board. Participant
agrees that if any of the Shares acquired by exercise of the Option granted hereunder are
registered under the Securities Act of 1933, as amended, no public offering (otherwise than
on a national securities exchange, as defined in the Securities Exchange Act of 1934, as
amended) of any Shares acquired by exercise of the Option will be made by Participant or by
any successor under circumstances such that Participant or such successor may be deemed an
underwriter, as defined in the Securities Act of 1933, as amended.






4. Withholding Taxes. If and to the extent Participant receives or is deemed to have received in
connection with the Option, any amount that is required to be included in the gross income of
Participant for federal income tax purposes and for which the Company has a tax withholding
obligation, Participant shall pay to the Company or make arrangements satisfactory to the Committee
no later than the date as of which such amount first becomes includible in Participant’s gross
income regarding the payment of, any federal, state, local or foreign taxes of any kind required by
law to be withheld by the Company with respect to such amount. If approved by the Committee in its
sole discretion, the minimum required withholding obligations may be settled with Shares, including
without limitation Shares otherwise delivered upon exercise of the Option. The obligations of the
Company under the Plan and this Grant Agreement shall be conditional on such payment, and the
Company shall, to the extent permitted by law, have the right to deduct any such taxes from any
payment otherwise due to Participant.



5. Applicability of Change of Control Provisions of the Plan. The Options and the Shares that may
be purchased by exercise of the Options are subject to all provisions of the Plan, as in effect
from time-to-time, and to all determinations of the Committee made in accordance with the terms of
the Plan, including determinations and actions taken in the event of a change of control as defined
in the Plan and as provided in Section 15 of the Plan. In accordance with said Section 15 of the
Plan, for purposes of this Grant Agreement, the term Change in Control means the occurrence or
applicability of a “change in control event” as set forth in Section 409(a) of the Code and any
Internal Revenue Service regulations or other guidance issued thereunder. By executing this Grant
Agreement, Participant expressly acknowledges: (i) receipt of the Plan; and (ii) the applicability
of all provisions of the Plan and the terms of this Grant Agreement to the Option. In the event of
any inconsistency between this Grant Agreement and the Plan, the Plan shall control.


 


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6. Termination of Employment or Services. Upon termination of employment or the services of
Participant, the Option may only be exercised as follows:




	 	(a)	 	Termination for reasons other than disability, death or discharge for Cause.







	 	(i)	 	Unvested Options Held on the Date of Termination. Any unvested Options
held by Participant as of the date of termination shall immediately expire.

	 
	 	(ii)	 	Vested but Unexercised Options. The deadline for Participant’s
exercise of any vested Stock Options held by Participant as of the date of termination
of employment or services (“Termination Date”) shall be three (3) months after the
Termination Date. Any vested but unexercised Stock Options not exercised on or before
the Exercise Deadline shall immediately expire.







	 	(b)	 	Termination for Cause; Post-employment conduct in contravention of this Grant
Agreement. If the Committee determines that Participant has engaged in conduct that
constitutes Cause at any time while Participant is employed by or provided service to the
Employer or thereafter, any and all Options then outstanding shall immediately terminate.
Participant shall automatically forfeit all rights with respect to any exercised portion of
an Option for which share certificates otherwise issuable have not been delivered, subject
to refund by the Company of the Exercise Price paid by Participant for such Shares.

	 
	 	(c)	 	Termination of employment or services on account of Participant’s death or Disability.
In the event of the termination of Participant’s employment or services on behalf of the
Employer as a result of Participant’s death or Disability, any unvested Options held by
Participant on the date such termination occurs that are scheduled to vest on or before the
first anniversary of the Termination Date shall immediately vest. Participant’s vested
Options may be exercised by Participant (or Participant’s beneficiaries or estate, in the
case of Participant’s death) until the second anniversary of the date of termination of
employment or services. Any unexercised Options held by Participant (or his or her
beneficiaries or estate, in the case of death) which have not been exercised prior to such
exercise deadline shall immediately expire and Participant (or Participant’s beneficiaries
or estate) shall forfeit any right, title or interest in the unexercised Options.






Notwithstanding the provisions of Section 6(a)(ii) or 6(c) above, no Option may be exercised after
the end of its originally specified term as set forth in Section 1.



7. Modification; Waiver. Except as provided in the Plan or this Grant Agreement, no provision of
this Agreement may be amended, modified, or waived unless such amendment or modification is agreed
to in writing and signed by Participant and by a duly authorized officer of the Company, and such
waiver is set forth in writing and signed by the party to be charged. No waiver by either party
hereto at any time of any breach by the other party hereto of any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time. Participant acknowledges
and agrees that the Committee has the right to take certain actions in the event of a Change of
Control and that the Committee shall have the right to amend an outstanding Option in whole or in
part from time-to-time if the Committee believes, in its sole and absolute discretion that any of
the following apply: (i) a fundamental change of circumstances that frustrates any purpose or
objective of the Plan has occurred; (ii) it is necessary or appropriate to do so in light of its
interpretation of any law, regulation or rule or amendments thereto, including accounting rules,
applicable to the Plan which the Committee believes may impair the rights of the Company, its
shareholders or Participants; or (iii) the Committee believes
such amendment to be required or appropriate in order to conform the Option to, or otherwise
satisfy any legal requirement (including without limitation the provisions of Section 409A of the
Code). Such amendments may be made retroactively or prospectively and without the approval or
consent of Participant to the extent permitted by applicable law, provided that the Committee shall
not have any such authority to the extent that the grant or exercise of such authority would cause
any tax to become due under Section 409A of the Code.


 


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All determinations permitted or required hereunder and/or pursuant to the Plan regarding
enforcement, waiver or modification of terms and provisions applicable to the Option shall be made
by the Committee in its sole discretion. Determinations made under this Grant Agreement and the
Plan need not be uniform and may be made selectively among individuals, whether or not such
individuals are similarly situated. Participant’s signature to this Grant Agreement confirms
Participant’s acknowledgement that the terms of the Plan and this Grant Agreement are reasonable
and Participant agrees not to challenge the reasonableness of such provisions, even where
forfeiture of Options is the penalty for violation.



8. Notices. Except as the Committee may otherwise prescribe or allow in connection with
communications procedures developed in coordination with any third party administrator engaged by
the Company, all notices, including notices of exercise, requests, demands or other communications
required or permitted with respect to the Plan, shall be in writing addressed or delivered to the
parties. Such communications shall be deemed to have been duly given to any party when delivered by
hand, by messenger, by a nationally recognized overnight delivery company, by facsimile, or by
first-class mail, postage prepaid and return receipt requested, in each case to the applicable
addresses set forth below:


If to Participant:



to Participant’s most recent address on the records of the Company



If to the Company:



Smart Move, Inc.

5990 Greenwood Plaza Blvd. No. 2, Suite 390

Greenwood Village, CO 80111

Attn: Human Resources




(or to such other address as the party in question shall from time to time designate by written
notice to the other parties).



9. Governing Law. Except to the extent that provisions of the Plan are governed by applicable
provisions of the Code or other substantive provisions of federal law, the Plan and all Stock
Options made and actions taken thereunder shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware without regard to the principles of conflicts of
law thereof.



10. Securities Law Restrictions. The Option covered by this Grant Agreement will be exercised and
Shares issued only upon compliance with the Securities Act of 1933, as amended (the “Act”), and any
other applicable securities law. Participant will be deemed to have represented and warranted that
upon exercising Participant’s Option, Participant will acquire the
Shares of the Company pursuant to the Plan for Participant’s own account, that Participant will not
take the Shares with a view to distribution and that Participant will dispose of the Shares only in
compliance with Rule 144 promulgated under the Act (“Rule 144”) or in any other manner as will not
violate the Act and the rules and regulations promulgated under the Act, and any other applicable
securities law.


 


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11. Non-Competition, Non-Solicitation and Intellectual Property Covenants.




In consideration of the Option herein granted and other consideration specified below, Participant
agrees and stipulates as follows:




	 	(a)	 	Non-competition and non-solicitation. Participant acknowledges that the Company has
trade secrets and confidential information and that as a key employee of the company, Participant
will have access to certain trade secrets and confidential information. In consideration of the
Option herein granted and of the Company’s disclosure of trade secrets and other proprietary
information, Participant agrees that during the term of Participant’s service as an employee of or
consultant to the Company or any of its subsidiaries and for a period of twenty four (24) months
after such employment or service terminates for any reason, Participant will not directly or
indirectly or in any capacity on Participant’s own behalf or on behalf of others:







	 	i)	 	Call upon any person or entity which was at any time during the preceding 12-month
period a customer or supplier of the Company or its subsidiaries for the purpose of diverting,
taking away business of, or selling products or services competitive with products or services
provided by the Company or its subsidiaries;

	 
	 	ii)	 	Alone or in any capacity on behalf of others solicit or induce any persons or persons
employed by the Company within the preceding 12-month period to leave such employment;

	 
	 	iii)	 	Within North America or any of the states or territories of the United States of
America, either as an employee, employer, consultant, agent, principal, partner, more that 5%
shareholder, member, director, officer, financier, or in any other individual or representative
capacity, engage or participate in any business or business activity that develops, designs,
engineers, manufactures, markets, advertises, sells, leases, licenses or distributes or manages
assets, products, software, asset tracking devices, systems or solutions, shipping containers, or
which conducts business operations or performs services that are in competition with any product,
sale or service activities conducted by the Company or its subsidiaries in relation to a Material
Business Activity. Material Business Activity shall be defined as a business activity or line of
business which comprised in excess of 20% of the Company’s revenue for the preceding 12-month
period.







	 	(b)	 	Intellectual property; Inventions and creative works. Participant shall disclose
promptly to the Company any and all inventions, improvements, discoveries and the like (whether or
not patentable), and all software, documentation, and other works of authorship, which Participant
conceives, devises, develops, perfects, creates or uses, whether alone or with others during the
term of Participant’s employment, and Participant hereby assigns to the Company all inventions and
all rights (including without limitation, patent rights and copyrights) in such inventions,
software, works of authorship and the like hereafter developed or conceived by Participant while
performing such services for the Company.





 


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	 	(c)	 	Stipulations and enforcement. Participant acknowledges and agrees that the agreements
and restrictions herein are reasonable and necessary for the protection of the Company and are an
essential inducement to the Company’s grant of the Option. Participant agrees to be bound by the
provisions of this Section 11 to the maximum extent permitted by law, it being the intent and
spirit of the parties that the foregoing shall be fully enforceable. However, the parties further
agree and stipulate that it is their intent and mutual desire that if any of the restrictions
contained in this agreement are held to be excessively broad as to duration, geographical scope,
effect upon property rights or otherwise unenforceable, the court so holding shall reduce the
geographic restriction and/or the duration of this agreement, or effect any other change to the
extent, but only to the extent absolutely necessary to render the covenants or restrictions
enforceable, while still giving effect to the parties’ expressed desire that Company be protected
to the greatest extent possible under the applicable law. Each of the terms and provisions of this
agreement is severable in whole or in part. Any term or provision found by the court to be invalid
or illegal and not subject to reformation shall be excised by the court, and the remaining terms
and provisions shall not be affected and shall remain in full force and effect. Participant
acknowledges that Participant’s services to the Company or its subsidiaries involve such special
knowledge of the Company’s business activities and trade secrets that any breach or threatened
breach cannot be remedied solely by monetary compensation or damages. Accordingly, Participant
agrees that any breach or threatened breach of any of the non-competition, non-solicitation and
intellectual property covenants of this Section 11 shall allow the Company to seek injunctive
relief restraining Participant or any other person, business or firm from committing or
participating in such breach or anticipated breach, or engaging in any activity which shall
constitute a breach of the provisions of this Section.






12. Participant’s Acknowledgement of Plan Administration Conditions. PARTICIPANT ACKNOWLEDGES AND
AGREES THAT THE VESTING OF SHARES PURSUANT TO THE OPTION HEREOF IS EARNED ONLY BY CONTINUING
CONSULTANCY OR EMPLOYMENT AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING
GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER). PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES
THAT NOTHING IN THIS AGREEMENT, NOR IN THE PLAN, SHALL CONFER UPON PARTICIPANT ANY RIGHT WITH
RESPECT TO CONTINUATION OF EMPLOYMENT OR CONSULTANCY BY THE COMPANY, NOR SHALL IT INTERFERE IN ANY
WAY WITH PARTICIPANT’S RIGHT OR THE COMPANY’S RIGHT TO TERMINATE PARTICIPANT’S EMPLOYMENT OR
CONSULTANCY AT ANY TIME, WITH OR WITHOUT CAUSE. OPTIONS UNDER THE PLAN ARE GRANTED IN A
DISCRETIONARY FASHION, AND THE GRANT OF ONE OR MORE OPTIONS UNDER THE PLAN SHALL NOT GIVE RISE TO A
RIGHT IN ANY EMPLOYEE OR CONSULTANT TO RECEIVE ADDITIONAL OPTION GRANTS IN THE FUTURE. FURTHER, THE
BOARD OF DIRECTORS RETAINS THE RIGHT, IN ITS SOLE DISCRETION, TO TERMINATE THE PLAN FOR ANY REASON,
OR NO REASON, AT ANY TIME. PARTICIPANT ACKNOWLEDGES RECEIPT OF A COPY OF THE PLAN AND REPRESENTS
THAT PARTICIPANT IS FAMILIAR WITH THE TERMS AND PROVISIONS THEREOF, AND HEREBY ACCEPTS THIS OPTION
SUBJECT TO ALL OF THE TERMS AND PROVISIONS THEREOF.


 


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IN WITNESS WHEREOF, the Company has caused this Grant Agreement to be executed by its duly
authorized officer and Participant            has executed this Grant Agreement to confirm
Participant’s agreement to all of the terms and conditions set forth herein.



	 	 	 	 	 	 	 
	PARTICIPANT:	 	SMART MOVE, INC.
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	By:	 	 
	 	 	 	 	 
	Name:

	 	 	 	Name:	 	 
	 

	 	 
	 	 	 	 
	Participant Residence Address	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 







 


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