Exhibit 8
IMPORTANT: PLEASE READ CAREFULLY BEFORE SIGNING: SIGNIFICANT
REPRESENTATIONS ARE CALLED FOR HEREIN.
VELOCITY EXPRESS CORPORATION
STOCK PURCHASE AGREEMENT
Velocity Express Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
THIS AGREEMENT, made effective this 18 day of April 2002, between Velocity
Express Corporation, a Delaware corporation (the "Company"), and THLi
Coinvestment Partners, LLC, TH ▇▇▇ ▇▇▇▇▇▇ Parallel Ventures, LP, TH ▇▇▇ ▇▇▇▇▇▇
Ventures, LP and Blue Star, LLC.
1. The Company agrees to sell to the undersigned, and the undersigned
agrees to purchase from the Company, 3,333,333 shares of the
Company's Series G Preferred Convertible Preferred Stock, par value
$0.004 per share (the "Shares") for the subscription price of $0.75
per Share. The rights and preferences of the Shares are set forth in
the Certificate of Designation of Preferences and Rights of Series G
Convertible Preferred Stock ("Series G Preferred") as set forth in
Appendix A attached hereto. 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 $1,500,000.00, and will deliver on or
before June 15, 2002 and additional $1,000,000.00, all in payment of
the full purchase price of the Shares.
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
B, 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.
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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 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,
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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, 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 C. 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, for a period of 180 days from the date of this Stock
Purchase Agreement.
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,
pursuant to paragraph 5A (i) of the Certificate of Designation for
the Series G Preferred Stock, the Series G cannot be converted into
common stock unless and until shareholder approval of the issuance
of the common stock upon conversion of the Series G Preferred has
been obtained.
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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
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If yes, list the affiliated member firm or person:
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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
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Joint Tenants with Right of Survivorship*
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Partnership*
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Tenants in Common*
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Corporation
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Trust
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Other
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(describe)
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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
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* Multiple signatures required
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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.
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
Accepted as of April 18, 2002
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Velocity Express Corporation
By:
TH ▇▇▇ ▇▇▇▇▇▇ Ventures, L.P.
(f/k/a TH ▇▇▇.▇▇▇▇▇▇ Internet Partners,
L.P.)
By: TH ▇▇▇ ▇▇▇▇▇▇ Fund Advisors, L.P.,
its General Partner
By: TH ▇▇▇ ▇▇▇▇▇▇ Fund Advisors, LLC.,
its General Partner
/s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal
TH ▇▇▇ ▇▇▇▇▇▇ Parallel Ventures, L.P.
(f/k/a TH ▇▇▇.▇▇▇▇▇▇ Internet Parallel
Partners, L.P.)
By: TH ▇▇▇ ▇▇▇▇▇▇ Fund Advisors, L.P.,
its General Partner
By: TH ▇▇▇ ▇▇▇▇▇▇ Fund Advisors, LLC.,
its General Partner
/s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal
THLi Coinvestment Partners, LLC
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal
Blue Star I, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Sole Member
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