EX 10.2
IMPORTANT: PLEASE READ CAREFULLY BEFORE SIGNING: SIGNIFICANT
REPRESENTATIONS ARE CALLED FOR HEREIN.
Velocity Express Corporation
STOCK PURCHASE AGREEMENT
Velocity Express Corporation
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
THIS AGREEMENT, made effective this __ day of ___________, between Velocity
Express Corporation, a Delaware corporation (the "Company"), and _________, a
resident of the State of ___________.
1. (a) The Company agrees to sell to the undersigned, and the undersigned
agrees to purchase from the Company, _______ shares of the Company's
Series H Preferred Convertible Preferred Stock, par value $0.004 per
share (the "Shares" or "Series H Preferred") for the subscription
price of $10.00 per Share. The rights and preferences of the Shares
are set forth in the Certificate of Designation of Preferences and
Rights of Series H Convertible Preferred Stock as set forth in
Appendix A attached hereto. The Company will also issue to the
undersigned in connection with this purchase a warrant to purchase
_______ shares of the Company's Common Stock (the "Warrant"). A form
of the Warrant is attached hereto as Appendix B. The undersigned
acknowledges that this subscription is contingent upon acceptance in
whole or in part by the Company. Concurrent with the delivery of this
Agreement, the undersigned has delivered cash or a check or wire
transfer to the Company in the amount of $__________ in payment of the
full purchase price of the Shares.
(b) Company and the undersigned agree that, as set forth in Section 6
of Certificate of Designation of Preferences and Rights of Series H
Convertible Preferred Stock, the Company can repurchase the Series H
Preferred Stock of the undersigned on or before April 30, 2003 by
tendering to undersigned $__________. In the event the Company does
not repurchase the Series H Preferred Stock, the undersigned shall be
entitled to receive an additional warrant (the "Call Warrant") to
purchase ________ shares of the Company's Common Stock. A form of the
Call Warrant is attached hereto as Appendix C.
2. The undersigned acknowledges and represents as follows:
(a) That the undersigned has had an opportunity to carefully review
the Company, has had the opportunity to conduct due diligence on
the Company, has had the opportunity to review its public filings
with the Securities and Exchange Commission and has reviewed the
Risk Factors, attached hereto as Appendix D, relating to the
Company (the "Company Materials"), and all documents delivered
therewith or reasonably requested by the undersigned;
(b) That the undersigned is able to bear the economic risk of the
investment in the Shares;
(c) That the undersigned has knowledge and experience in financial
and business matters, that the undersigned is capable of
evaluating the merits and risks of the prospective investment in
the Shares and that the undersigned is able to bear such risks.
(d) That the undersigned understands an investment in the Shares is
highly speculative but believes that the investment is suitable
for the undersigned based upon the undersigned investment
objectives and financial needs, and has adequate means for
providing for his, her or its current financial needs and
personal contingencies and has no need for liquidity of
investment with respect to the Shares;
(e) That the undersigned has been given access to full and complete
information regarding the Company (including the opportunity to
meet with Company officers and review such documents as the
undersigned may have requested in writing) and has utilized such
access to the undersigned satisfaction for the purpose of
obtaining information in addition to, or verifying information
included in, the Company Materials;
(f) That the undersigned recognizes that the Shares, are an
investment, involve a high degree of risk, including, but not
limited to, the risks described in the Company Materials; and
(g) That the undersigned realizes that (i) the purchase of Shares is
a long-term investment; (ii) the purchasers of the Shares must
bear the economic risk of investment for an indefinite period of
time because the Shares have not been registered under the
Securities Act of 1933, as amended (the "Act") and, therefore,
cannot be sold unless they are subsequently registered under the
Act, and specifically Regulation D of the Act, or an exemption
from such registration is available; and (iii) the
transferability of the Shares is restricted, and (A) requires the
written consent of the Company, (B) requires conformity with the
restrictions contained in paragraphs 5 and 6 below, and (C) will
be further restricted by a legend placed on the certificate(s)
representing the Shares stating that the Shares have not been
registered under the Act and referring to the restrictions on
transferability of the Shares, and by stop transfer orders or
notations on the Company's records referring to the restrictions
on transferability.
3. The undersigned has been advised that the Shares are not being
registered under the Act or any other securities laws pursuant to
exemptions from the Act and such laws, and that the Company's reliance
upon such exemptions is predicated in part on the undersigned's
representations to the Company as contained herein. The undersigned
represents and warrants that the Shares are being purchased for his,
her or its own account and for investment and without the intention of
reselling or redistributing the same, that he, she or it has made no
agreement with others regarding any of such Shares and that his, her
or its financial condition is such that it is not likely that it will
be necessary to dispose of any of such Shares in the foreseeable
future. The undersigned is aware that, in the view of the Securities
and Exchange Commission, a purchase of Shares with an intent to resell
by reason of any foreseeable specific contingency or anticipated
change in market value, or
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any change in the condition of the Company or its business, or in
connection with a contemplated liquidation or settlement of any loan
obtained for the acquisition of the Shares and for which the Shares
were pledged as security, would represent an intent inconsistent with
the representations set forth above. The undersigned further
represents and agrees that if, contrary to his, her or its foregoing
intentions, he, she or it should later desire to dispose of or
transfer any of such Shares in any manner, he, she or it shall not do
so without first obtaining (a) the opinion of counsel designated by
the Company that such proposed disposition or transfer lawfully may be
made without the registration of such Shares for such purpose pursuant
to the Act, as then in effect, and any other applicable securities
laws, or (b) such registrations (it being expressly understood that
except as provided in the Registration Rights Agreement dated as of
the date hereof, the Company shall not have any obligation to register
the Shares for such purpose).
The undersigned agrees that the Company may place a restrictive
legend on the certificate(s) representing the Shares, containing
substantially the following language:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED
WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), AND WITHOUT REGISTRATION UNDER ANY OTHER SECURITIES
LAWS, IN RELIANCE UPON EXEMPTIONS CONTAINED IN THE ACT AND SUCH
LAWS. NO TRANSFER OF THESE SECURITIES OR ANY INTEREST THEREIN MAY
BE MADE IN THE ABSENCE OF EITHER AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND UNDER THE APPLICABLE STATE SECURITIES
LAWS, OR AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT
SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE ACT AND
UNDER APPLICABLE STATE SECURITIES LAWS. FURTHER, THESE SECURITIES
ARE SUBJECT TO LIMITATIONS ON CONVERTIBILITY AS SET FORTH IN THE
STOCK PURCHASE AGREEMENT APPLICABLE TO THE ISSUANCE OF THESE
SECURITIES.
The undersigned agrees and consents that the Company may place a
stop transfer order on the certificate(s) representing the Shares to
assure the undersigned's compliance with this Agreement and the
matters referenced above.
The undersigned agrees to save and hold harmless, defend and
indemnify the Company and its directors, officers and agents from any
claims, liabilities, damages, losses, expenses or penalties arising
out of any misrepresentation of information furnished by the
undersigned to the Company in this Agreement.
The undersigned understands that the Company at a future date may
file a registration or offering statement (the "Registration
Statement") with the Securities and Exchange Commission to facilitate
a public offering of its securities. The undersigned agrees, for the
benefit of the Company, that should an underwritten public offering be
made and should the managing underwriter of such offering require, the
undersigned will not, without the prior written consent of the Company
and such underwriter, during the Lock Up Period as defined herein: (a)
sell, transfer or otherwise dispose of, or agree to sell, transfer or
otherwise dispose of any of the Shares beneficially held by the
undersigned during the Lock Up Period; (b) sell, transfer or otherwise
dispose of, or agree to sell,
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transfer or otherwise dispose of any options, rights or warrants to
purchase any of the Shares beneficially held by the undersigned during
the Lock Up Period; or (c) sell or grant, or agree to sell or grant,
options, rights or warrants with respect to any of the Shares. The
foregoing does not prohibit gifts to donees or transfers by will or
the laws of descent to heirs or beneficiaries provided that such
donees, heirs and beneficiaries shall be bound by the restrictions set
forth herein. The term "Lock Up Period" shall mean the lesser of (x)
240 days or (y) the period during which Company officers and directors
are restricted by the managing underwriter from effecting any sales or
transfers of the Company's securities. The Lock Up Period shall
commence on the effective date of the Registration Statement.
The undersigned has read and executed the Registration Rights
Agreement in the form appended hereto as Appendix E The undersigned
agrees that, notwithstanding any registration rights granted under the
Registration Rights Agreement, the undersigned will not be entitled to
any registration rights, whether by demand, piggyback or otherwise,
until April 30, 2003.
The undersigned represents and warrants that the undersigned is a bona
fide resident of, and is domiciled in, the state or country listed in
the Recital to this Agreement and that the Shares are being purchased
solely for the beneficial interest of the undersigned and not as
nominee, for, or on behalf of, or for the beneficial interest of, or
with the intention to transfer to, any other person, trust or
organization, except as specifically set forth in paragraph 5 of this
Agreement.
Accredited Status. The undersigned represents and warrants that the
undersigned constitutes an accredited investor as defined in Rule
501(a) under the Securities Act of 1933.
4. The undersigned has been advised by the Company that the rules of the
Nasdaq Stock Market provide that shareholder approval is required if
the Company issues, at a price which is less than market value, Common
Stock or securities convertible into Common Stock which exceeds twenty
percent of the Company's outstanding Common Stock or twenty percent of
the Company's voting power outstanding before such issuance. The
undersigned acknowledges and agrees that until the occurrence of the
later of (1) April 30, 2003, or (2) shareholder approval of the
issuance of the Series H Preferred has been obtained, the Series H
cannot be converted into common stock pursuant to paragraph 5A (i) of
the Certificate of Designation for the Series H Preferred Stock, and
will not have any of the voting rights set forth in paragraph 4A of
the Certificate of Designation for the Series H Preferred Stock.
5. NASD Affiliation. The undersigned is affiliated or associated,
directly or indirectly, with a National Association of Securities
Dealers, Inc. ("NASD") member firm or person.
Yes ________ No ________
If yes, list the affiliated member firm or person: ____________
_______________________________________________________________
_______________________________________________________________
Your relationship to such member firm or person:
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______________________________________________________________________
______________________________________________________________________
6. Entities. If the undersigned is not an individual but an entity, the
individual signing on behalf of such entity and the entity jointly and
severally agree and certify that:
A. The undersigned was not organized for the specific purpose of
acquiring securities of the Company; and
B. This Agreement has been duly authorized by all necessary action
on the part of the undersigned, has been duly executed by an
authorized officer or representative of the undersigned, and is a
legal, valid and binding obligation of the undersigned
enforceable in accordance with its terms.
7. Miscellaneous.
A. Manner in which title is to be held: (check one)
_____ Individual Ownership
_____ Joint Tenants with Right of Survivorship*
_____ Partnership*
_____ Tenants in Common*
_____ Corporation
_____ Trust
_____ Other ________________________________
_________________________________________________(describe)
B. The undersigned agrees that the undersigned understands the
meaning and legal consequences of the agreements, representations
and warranties contained herein, agrees that such agreements,
representations and warranties shall survive and remain in full
force and effect after the execution hereof and payment for the
Shares, and further agrees to indemnify and hold harmless the
Company, each current and future officer, director, employee,
agent and shareholder from and against any and all loss, damage
or liability due to, or arising out of, a breach of any
agreement, representation or warranty of the undersigned
contained herein.
C. This Agreement shall be construed and interpreted in accordance
with Minnesota law without regard to conflict of law provisions.
D. The undersigned agrees to furnish to the Company, upon request,
such additional information as may be deemed necessary to
determine the undersigned's suitability as an investor.
---------------
* Multiple signatures required
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8. The provisions of Section 4 hereof shall not be amended without
approval of the stockholders of the Company.
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SIGNATURE PAGE
Dated: __________.
_______________________________________
Signature
_______________________________________
Name Typed or Printed
_______________________________________
Residence Address
_______________________________________
_______________________________________
City, State, Country and Zip Code
_______________________________________
Mailing Address
_______________________________________
_______________________________________
City, State, Country and Zip Code
_______________________________________
Tax Identification or Social
Security Number
_______________________________________
Phone Number (home)
_______________________________________
Phone Number (work)
_______________________________________
Fax Number
_______________________________________
E-mail Address
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CERTIFICATE OF SIGNATORY
(To be completed if Shares are being subscribed by an entity.)
I, ________________________, am the ___________, ____________________
(the "Entity").
I certify that I am empowered and duly authorized by the Entity to
execute and carry out the terms of the Subscription Agreement and Letter of
Investment Intent and to purchase and hold the Shares, and certify further that
the Note Purchase Agreement has been duly and validly executed on behalf of the
Entity and constitutes a legal and binding obligation of the Entity.
IN WITNESS WHEREOF, I have set my hand this _____ day of _____, 2002.
_________________________________________________
(Signature)
_________________________________________________
(Title)
_________________________________________________
(Please Print Name)
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ACCEPTANCE BY THE COMPANY
Velocity Express Corporation hereby accepts the foregoing subscription
to the extent of ______ Shares.
Velocity Express Corporation
By________________________________________
Xxxxxx X. Xxxxxxxxxx
General Counsel and Secretary
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APPENDIX A
Certificate of Designation
A-1
APPENDIX D
Risk Factors
D-1
APPENDIX E
Registration Rights Agreement
E-1
