Exhibit 10.1
VOTING AGREEMENT
This Voting Agreement (this
“Agreement”) dated February 10, 2005 is entered into
among Velocity Express Corporation, a Delaware corporation (the
“Company”), and Special Situations Fund III, L.P.,
Special Situations Cayman Fund, L. P., Special Situations Private
Equity Fund, L.P., Scorpion Capital Partners, L.P., Scorpion
Acquisition, LLC, Pequot Scout Fund, L.P., Pequot Navigator Onshore
Fund, L.P., Pequot Navigator Offshore Fund, Inc., Premium Series
PCC Limited – Cell 33, TH Lee Putnam Ventures, L.P., TH Lee
Putnam Parallel Ventures, L.P., THL i Coinvestment Partners,
LLC, Blue Star I, LLC, Jack Duffy, Dolph DiBiaso, Vincent Wasik,
Palm Beach Overseas Investors, Limited, Andrew Boszhardt, BNS Long
Short Fund, William S. Lapp, Steven Cristaldi, Alexander Paluch,
Ray A. Mirza, BPEF 2 Pegasus Limited, East River II, L.P. and
TerraNova Capital (each individually a “Stockholder”
and collectively, the “Stockholders”).
In consideration of the mutual
promises made herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Certain Definitions
.
As used in this Agreement, the
following terms shall have the following meanings:
“Common Stock” means the
common stock, $0.004 par value per share, of the
Company.
“Effective Date” means
the date of this Agreement.
“Excess Shares” means,
with respect to any Stockholder at any time, the shares of
Preferred Stock constituting the difference obtained by subtracting
(i) the Voting Shares held by such Stockholder from (ii) the total
Preferred Shares held by such Stockholder. The number of Excess
Shares held by each Stockholder (other than TerraNova Capital) as
of the date hereof, assuming that the Preferred Shares were issued
on the same day the Stockholder entered into the Purchase
Agreement, is set forth on Schedule 1 appended
hereto.
“Nasdaq” means The
Nasdaq Stock Market or any successor thereto.
“Purchase Agreement”
means that certain Purchase Agreement, dated as of December 21,
2004, by and among the Company and certain of the
Stockholders.
“Preferred Shares” means
shares of Series M Convertible Preferred Stock, $0.004 par value
per share, of the Company. The number of Preferred Shares held by
each Stockholder (other than TerraNova Capital) as of the date
hereof, assuming that the Preferred Shares were issued on the same
day the Stockholder entered into the Purchase Agreement, is set
forth on Schedule 1 appended hereto.
“Voting Shares” means,
with respect to any Stockholder at any time, the Preferred Shares
constituting the product (rounded off to the nearest whole number,
with fractional
amounts equal to 0.50 rounded up) obtained by
multiplying (i) the total Preferred Shares held by such
Stockholder, including Preferred Shares received as dividend on
other Preferred Shares, by (ii) 0.30708. The number of Voting
Shares held by each Stockholder (other than TerraNova Capital) as
of the date hereof, assuming that the Preferred Shares were issued
on the same day the Stockholder entered into the Purchase
Agreement, is set forth on Schedule 1 appended hereto. The
parties hereto acknowledge and agree that any and all of the
Stockholders may agree to deem any number of Voting Shares held by
any Stockholder party to such agreement to be Excess Shares and an
equal number of Excess Shares held by any Stockholder party to such
agreement to be Voting Shares; provided , that , the
total number of Voting Shares held by such Stockholders after such
agreement does not exceed the total number of Voting Shares held by
such Stockholders prior to such agreement. No such agreement shall
be effective unless and until the Company has received written
notice (executed by all Stockholders party to such agreement)
thereof.
2. Voting . Each Stockholder
covenants and agrees that, from and after the Effective Date and
until the termination of this Agreement in accordance with the
terms hereof (the “Term”), at any meeting of
stockholders of the Company, however called, and in any action by
written consent of stockholders of the Company, such Stockholder
will not vote, or cause to be voted (by means of proxy, voting
trust, voting agreement or otherwise), Preferred Shares, other than
the Voting Shares held by such Stockholder, on any matter on which
the holders of Preferred Shares vote together with the holders of
the Common Stock (and any other class or series of capital stock of
the Company) as a single class. When voting the Voting Shares on
any matter on which the holders of Preferred Shares vote together
with the holders of the Common Stock (and any other class or series
of capital stock of the Company) as a single class, each
Stockholder covenants and agrees that, during the Term, the voting
rights under the Voting Shares shall be calculated without regard
to the adjustment of conversion price pursuant to Section 4C of the
Certificate of Designation of the Preferred Shares. Notwithstanding
the foregoing, nothing in this Agreement shall restrict any
Stockholder from voting or causing to be voted at any meeting of
stockholders of the Company or in any action by written consent of
stockholders of the Company (i) any Preferred Shares (including,
without limitation, any Excess Shares) on any matter upon which the
holders of Preferred Shares are voting as a separate class, solely
to the extent such holders of Preferred Shares are voting as a
separate class and (ii) any shares of Common Stock, whether
acquired upon conversion of Preferred Shares or
otherwise.
3. Term . This Agreement
shall become effective on the Effective Date. This Agreement shall
terminate as to any Stockholder (i) upon receipt by the Company of
written notification from Nasdaq that the ownership and voting of
the Preferred Shares (including, without limitation, the Excess
Shares) by the Stockholders does not conflict with Nasdaq
Marketplace Rule 4351 or any successor thereto, (ii) upon the
conversion of all Preferred Shares owned by such Stockholder into
Common Stock pursuant to the terms of the Preferred Shares or (iii)
upon such Stockholder no longer owning any Preferred
Shares.
4. Legend . Each certificate
representing Preferred Shares held by a Stockholder shall bear a
legend substantially in the following form:
“The securities represented by
this certificate are subject to a voting agreement with Velocity
Express Corporation, a copy of which is available for inspection at
the office of the Secretary of Velocity Express
Corporation.”
Promptly following the execution of this
Agreement, each Stockholder will return to the Company any and all
certificates re
