Attached files
file | filename |
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S-1/A - S-1/A - T3M INC. | a58133a7sv1za.htm |
EX-4.1 - EX-4.1 - T3M INC. | a58133a7exv4w1.htm |
EX-4.4 - EX-4.4 - T3M INC. | a58133a7exv4w4.htm |
EX-4.2 - EX-4.2 - T3M INC. | a58133a7exv4w2.htm |
EX-4.5 - EX-4.5 - T3M INC. | a58133a7exv4w5.htm |
EX-4.3 - EX-4.3 - T3M INC. | a58133a7exv4w3.htm |
EX-5.1 - EX-5.1 - T3M INC. | a58133a7exv5w1.htm |
EX-23.1 - EX-23.1 - T3M INC. | a58133a7exv23w1.htm |
EX-10.61 - EX-10.61 - T3M INC. | a58133a7exv10w61.htm |
EX-10.58 - EX-10.58 - T3M INC. | a58133a7exv10w58.htm |
Exhibit 10.64
[COMPANY LETTERHEAD]
, 2011
Eligible Participant in Public Offering
Re: | Public Offering of Units by T3 Motion, Inc. |
Ladies and Gentlemen:
Reference is made to that certain offering (the Offering) of Common Stock (as
defined below), Class H Common Stock Purchase Warrants (Class H Warrants) and Class I
Common Stock Purchase Warrants (Class I Warrants and collectively with the Class H
Warrants and Common Stock sold thereunder, the Securities) of T3 Motion, Inc. (the
Company) pursuant to the Companys Registration Statement on Form S-1, File No.
333-171163. Certain purchasers, including the undersigned, have required, as a material inducement
to participate in the Offering for a purchase at least $500,000 of Securities (such eligible
participants receiving the same rights hereunder are collectively referred to as, the Eligible
Participants), additional covenants and agreements from the Company. In consideration of
the mutual covenants contained in this Agreement and the undersigneds (and/or its affiliates)
participation of at least $500,000 of Securities in the Offering, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the
undersigned agree as follows:
1. Negative Covenants. Absent the prior written consent of at least 67% in interest
(Required Consent) of the Eligible Participants then holding Class H Warrants and/or
Class I Warrants (interest determined pro-rata based on the subscriptions of such Eligible
Participants in the Offering notwithstanding any subsequent disposition of the Securities after the
Offering provided the rights have not terminated), the Company hereby agrees with the undersigned
as follows:
(a) Subsequent Offerings. Other than an Exempt Issuance (as defined below),
the Company shall not sell or grant any option to purchase, or sell or grant any right to
reprice, or otherwise dispose of or issue (or announce any offer, sale, grant or any option
to purchase or other disposition) any shares of Common Stock or Common Stock Equivalents (as
defined below) for a consideration per share (Dilutive Price) less than the then
exercise price of the Class I Warrants (the foregoing a Dilutive Issuance). In
case any option or warrant (Option) issued in connection with the issue or sale of
other securities of the Company, together comprising one integrated transaction, (x) such
Options will be deemed to have been issued for the Option Value (as defined below) of such
Options and (y) the other securities issued or sold in such integrated transaction shall be
deemed to have been issued for the difference of (I) the aggregate consideration received by
the Company less any consideration paid or payable by the Company pursuant to the terms of
such other securities of the Company, less (II) the Option Value. Defined terms:
(i) Common Stock means the common stock of the Company, par value
$0.001 per share, and any other class of securities into which such securities may
hereafter be reclassified or changed.
(ii) Common Stock Equivalents means any securities of the Company or
the Subsidiaries which would entitle the holder thereof to acquire at any time
Common Stock, including, without limitation, any debt, preferred stock, right,
option, warrant or other instrument that is at any time convertible into or
exercisable or exchangeable for, or otherwise entitles the holder thereof to
receive, Common Stock.
(iii) Exempt Issuance means the issuance of (a) shares of Common
Stock or options to employees, officers or directors of the Company pursuant to any
stock or option plan duly adopted for such purpose, by a majority of the
non-employee members of the Board of Directors or a majority of the members of a
committee of non-employee directors established for such purpose, (b) securities
upon the exercise or exchange of or conversion of any Securities issued in the
Offering and/or other securities exercisable or exchangeable for or convertible into
Shares of Common Stock issued and outstanding on the date of this Agreement,
provided that such securities have not been amended since the date of this Agreement
to change the terms thereof or increase the number of such securities or to decrease
the exercise price, exchange price or conversion price of such securities, (c)
securities issued pursuant to acquisitions or strategic transactions approved by a
majority of the disinterested directors of the Company, provided that any such
issuance shall only be to a person or entity which is, itself or through its
subsidiaries, an operating company in a business synergistic with the business of
the Company and in which the Company receives benefits in addition to the investment
of funds, but shall not include a transaction in which the Company is issuing
securities primarily for the purpose of raising capital or to an entity whose
primary business is investing in securities and (d) securities issued to commercial
banks or other equivalent commercial lending institutions in connection with loans,
equipment leases, or other equivalent transactions but shall not include any
transaction in which the Company is issuing securities primarily for the purpose of
raising equity capital or to an entity whose primary business is investing in equity
securities.
(iv) Option Value means the value of an Option based on the Black and
Scholes Option Pricing model obtained from the OV function on Bloomberg determined
as of the day prior to the public announcement of the applicable Option or
Non-Public Fundamental Transaction, as the case may be, for pricing purposes and
reflecting (i) a risk-free interest rate corresponding to the U.S. Treasury rate for
a period equal to the remaining term of the applicable Option as of the applicable
date of determination, (ii) an expected volatility equal to the lesser of 70% and
the 100 day volatility obtained from the HVT function on Bloomberg Financial Markets
(Bloomberg) as of the day immediately following the public announcement of
the applicable Option or Non-Public
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Fundamental Transaction, as the case may be, (iii) the underlying price per
share used in such calculation shall be the highest daily volume weighted average
price of the Common Stock as reported on Bloomberg during the period beginning on
the day prior to the execution of definitive documentation relating to the issuance
of the applicable Option or date in question, as the case may be, and the public
announcement of such issuance or Non-Public Fundamental Transaction, as the case may
be, and (iv) a 360 day annualization factor.
(b) Certain Fundamental Transaction. The Company shall not enter into,
undertake or consummate a Fundamental Transaction that is (1) an all cash transaction, (2) a
Rule 13e-3 transaction as defined in Rule 13e-3 under the Exchange Act or (3) a
Fundamental Transaction involving a person or entity not traded on a national securities
exchange (Non-Public Entity) in which the resulting successor entity to the
Company is a Non-Public Entity (Non-Public Fundamental Transaction).
Fundamental Transaction shall include the following: (i) the Company, directly or
indirectly, in one or more related transactions effects any merger or consolidation of the
Company with or into another Person, (ii) the Company, directly or indirectly, effects any
sale, lease, license, assignment, transfer, conveyance or other disposition of all or
substantially all of its assets in one or a series of related transactions, (iii) any,
direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company
or another Person) is completed pursuant to which holders of Common Stock are permitted to
sell, tender or exchange their shares for other securities, cash or property and has been
accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company,
directly or indirectly, in one or more related transactions effects any reclassification,
reorganization or recapitalization of the Common Stock or any compulsory share exchange
pursuant to which the Common Stock is effectively converted into or exchanged for other
securities, cash or property, (v) the Company, directly or indirectly, in one or more
related transactions consummates a stock or share purchase agreement or other business
combination (including, without limitation, a reorganization, recapitalization, spin-off or
scheme of arrangement) with another Person whereby such other Person acquires more than 50%
of the outstanding shares of Common Stock (not including any shares of Common Stock held by
the other Person or other Persons making or party to, or associated or affiliated with the
other Persons making or party to, such stock or share purchase agreement or other business
combination).
2. Company Call Right. In lieu of obtaining the prior written consent of the
undersigned or the Required Consent for a Dilutive Issuance or a Non-Public Fundamental
Transaction, the Company may elect, in its sole option and discretion, to undertake such
Dilutive Issuance or Non-Public Fundamental Transaction provided that the Company does the
following:
(a) Dilutive Issuance Option. With respect to a Dilutive Issuance,
within 3 Trading Days of the applicable Dilutive Issuance, the Company shall pay to
the undersigned in immediately available funds cash equal to the sum of (A) (I) the
number of shares of Common Stock underlying the Series H Warrants directly purchased
by the undersigned through the Offering (or from a permitted assignor
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through an assignment described in Section 3)(Eligible H Warrants)
and held by the undersigned on the date of the Dilutive Issuance multiplied by (II)
the difference between the then Exercise Price of the Series H Warrants and the
Dilutive Price and (B) (I) the number of shares of Common Stock underlying the
Series I Warrants directly purchased by the undersigned through the Offering (or
from a permitted assignor through an assignment described in Section
3)(Eligible I Warrants) held by the undersigned on the date of the
Dilutive Issuance multiplied by (I) the difference between the then Exercise Price
of the Series I Warrants and the Dilutive Price. Notwithstanding the foregoing, the
Company shall not be obligated to pay any cash under this Section 2(a), until the
undersigned has submitted to the Company reasonably sufficient written evidence of
the number of Eligible H and I Warrants held by the undersigned on the date of the
Dilutive Issuance. Notwithstanding anything herein to the contrary, in the event
the Company elects to exercise this Dilutive Issuance Option, thereafter for
purposes of this provision the respective then Exercise Price shall be reduced to
the Dilutive Price used in such calculation (this assumption is for purposes of this
provision and calculation only as the actual exercise price of the Class H and I
Warrants shall not be adjusted as a result of this Section). Trading Day
shall mean any day that the New York Stock Exchange is open for trading.
(b) Non-Public Fundamental Transaction Option. With respect to a
Non-Public Fundamental Transaction Option, the Company or any successor entity in a
Fundamental Transaction in which the Company is not the survivor Successor Entity
(as defined above) shall redeem the Eligible H Warrants and Eligible I Warrants by
paying to the undersigned, within 3 Trading Days after the date of the consummation
of such Fundamental Transaction, an amount of cash in immediately available funds
equal to the Option Value of the Eligible H Warrants and Eligible I Warrants then
held by the undersigned as determined as of the date such Non-Public Fundamental
Transaction Option is consummated (FT Date). Notwithstanding the
foregoing, the Company shall not be obligated to pay any cash under this Section
2(b) until the undersigned has submitted to the Company reasonably sufficient
written evidence of the number of Eligible H and I Warrants held by the undersigned
on the FT Date.
3. Assignment. Notwithstanding the foregoing, the undersigned may assign its rights under
this letter agreement in whole but not in part to a third party provided that such assignee is an
institutional accredited investor and the assignee thereof notifies the Company it agrees to be
bound in writing by the terms of this letter agreement.
4. Termination. This agreement terminates on the earlier of the date that the Series H
Warrants and Series I Warrants are no longer outstanding or the date that the undersigned (or its
permitted assigns) no longer hold any Series H Warrants or Series I Warrants.
5. Miscellaneous. This letter agreement may not be amended or otherwise modified in any
respect without the written consent of the Company and the undersigned (or its permitted assigns).
This letter agreement shall be construed and enforced in accordance with the laws of the State of
New York without regard to the principles of conflict of laws. The Company and the
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undersigned hereby irrevocably submits to the exclusive jurisdiction of the United States
District Court sitting in the Southern District of New York and the courts of the State of New York
located in Manhattan, for the purposes of any suit, action or proceeding arising out of or relating
to this letter agreement, and hereby waives, and agrees not to assert in any such suit, action or
proceeding, any claim that (i) it is not personally subject to the jurisdiction of such court, (ii)
the suit, action or proceeding is brought in an inconvenient forum, or (iii) the venue of the suit,
action or proceeding is improper. The undersigned and Company hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by
receiving a copy thereof sent to the Company or undersigned, as applicable, at the address set
forth on the signature page hereto and agrees that such service shall constitute good and
sufficient service of process and notice thereof. The undersigned hereby waives any right to a
trial by jury. Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. The undersigned and Company agree and understand that this
letter agreement does not intend to create any relationship between the undersigned and any other
Eligible Participant each of which shall act severally and not jointly.
*** SIGNATURE PAGE FOLLOWS***
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This letter agreement may be executed in two or more counterparts, all of which when taken
together may be considered one and the same agreement.
T3 MOTION, INC. | ||||||
By: | ||||||
Name: | ||||||
Title: |
Address for Notice:
Acknowledged and agreed to
as of the date set forth above:
as of the date set forth above:
Name of Eligible Participant:
|
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Signature of Authorized Signatory of Eligible Participant:
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Name of Authorized Signatory:
|
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Title of Authorized Signatory:
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Number of Series H Warrant Shares:
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Number of Series I Warrant Shares:
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Address for Notice:
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