EXHIBIT 6
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
October 28, 2002, among Velocity Express Corporation, a Delaware corporation
(the "Company) and the persons executing a Series H Purchaser Signature Page
attached hereto (each a "Series H Purchaser"). Capitalized terms used herein but
not otherwise defined have the meaning set forth in Section 1 hereof.
WHEREAS, the Series H Purchasers and the Company have entered into
certain Stock Purchase Agreements, pursuant to which the Series H Purchasers
purchased from the Company certain of the shares of the Company's Series H
Convertible Preferred Stock, par value $.004 per share (the "Series H Preferred
Stock").
WHEREAS, the Company hereby desires to, among other things, grant
the Series H Purchasers certain registration rights.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Definitions.
"Business Day" means any day other than a Saturday, a Sunday or a
day on which banks in New York City are authorized or obligated by law or
executive order to close.
"Commission" means the United States Securities and Exchange
Commission, or any successor Commission or agency having similar powers.
"Common Stock" means the Common Stock of the Company, $0.004 par
value per share.
"Registrable Securities" means, the Series H Registrable Securities.
"Registration Expenses" has the meaning set forth in Section 6(a)
hereof.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Series H Purchasers" means any purchasers of Series H Preferred
Stock.
"Series H Registrable Securities" means the common stock issuable
upon conversion of the Series H Preferred Stock.
2. Demand Registrations.
(a) Requests for Registration. Subject to the limitations and lock-up
period set forth in the Series H Stock Purchase Agreement, the holders of a
majority of the Series H Registrable Securities may request Short-Form
Registrations, if available. Each request for a Demand Registration (as defined
below) shall specify the approximate number of Registrable Securities requested
to be registered and the anticipated per share price range for such offering.
Within ten (10) days after receipt of any such request, the Company will give
written notice of such requested registration to all other holders of
Registrable Securities and will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within twenty (20) days after the receipt of the Company's
notice. All registrations requested pursuant to this paragraph 2(a) are referred
to herein as "Demand Registrations".
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EXHIBIT 6
(b) Short-Form Registrations. The holders of the Series H Registrable
Securities will be entitled to request up to three (3) Short-Form Registrations
in which the Company will pay all Registration Expenses; provided, that the
holders of Registrable Securities shall not be entitled to require the Company
to effect any Short-Form Registration if the aggregate offering price of
Registrable Securities (based on the mid-point of the price range specified in
the request for such Short-Form Registration) to be included in such Short-Form
Registration is less than $1,000,000. Demand Registrations will be Short-Form
Registrations whenever the Company is permitted to use any applicable short
form. The Company will use its best efforts to make Short-Form Registrations on
FormS-3 available for the sale of Registrable Securities.
(c) Priority on Demand Registrations. If a Demand Registration is an
underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering, the Company will include in such registration (i) first, securities
requested to be registered pursuant to that certain Third Amended Registration
Rights Agreement, by and among the parties thereto (the "Original Registrable
Securities") , (ii) second, the number of Registrable Securities requested to be
included in such Demand Registration by the holders initially requesting such
Demand Registration pro rata, if necessary, among the holders of such
Registrable Securities based on the number of such Registrable Securities owned
by each such holder, and (iii) third, any other securities of the Company
requested to be included in such Demand Registration.
(d) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration within sixty (60) days after the
effective date of a previous registration of equity securities by the Company.
The Company may postpone for up to ninety (90) days the filing or the
effectiveness of a registration statement for a Demand Registration if the
Company's Board of Directors determines in good faith that such Demand
Registration would reasonably be expected to be seriously detrimental to the
Company and its shareholders; provided, that in such event, (i) the Company
shall give written notice to the holders of Registrable Securities as soon after
such determination as practicable, but in any event within ten (10) days
thereafter, (ii) the holders of Registrable Securities initially requesting such
Demand Registration will be entitled to withdraw such request and such Demand
Registration will not count as one of the permitted Demand Registrations
hereunder and the Company will pay all Registration Expenses in connection with
such registration and (iii) the Company may postpone a Demand Registration
pursuant hereto only once in any 365-day period.
(e) Selection of Underwriters. If any Demand Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering, which investment banker(s) and manager(s) shall be nationally
recognized, shall be made by the Company.
3. Piggyback Registrations.
(a) Right to Piggyback. Subject to the lock-up period set forth in the
Series H Stock Purchase Agreement, whenever the Company proposes to register any
of its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
will give prompt written notice to all holders of Registrable Securities of its
intention to effect such a registration and will include in such registration
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within twenty (20) days after the receipt
of the Company's notice.
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EXHIBIT 6
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the marketability
of the offering, the Company will include in such registration (i) first, the
securities the Company proposes to sell, and (ii) second, the securities
requested to be registered pursuant to that certain Third Amended Registration
Rights Agreement, and (iii) third, the Registrable Securities requested to be
included in such Piggyback Registration, pro rata, if necessary, among the
holders of such Registrable Securities on the basis of the number of Registrable
Securities owned by each such holder and (iv) fourth, other securities requested
to be included in such Piggyback Registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such Piggyback Registration (i) first, the securities requested to be
included therein by the holders requesting such registration, (ii) second, the
Original Registrable Securities requested to be included in such Piggyback
Registration, pro rata among the holders of such Original Registrable Securities
on the basis of the number of Registrable Securities owned by each such holder
and (iii) third, the holders of the Registrable Securities and other securities
requested to be included in such Piggyback Registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the selection by the Company of investment banker(s) and
manager(s), which investment banker(s) and manager(s) shall be nationally
recognized, for the offering must be approved by the holders of a majority of
the Registrable Securities included in such Piggyback Registration, which
approval shall not be unreasonably withheld.
4. Holdback Agreements.
(a) Each holder of Registrable Securities agrees not to effect any public
sale or distribution (including sales pursuant to Rule 144) of equity securities
of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven (7) days prior to and the
ninety (90)-day period beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration in which
Registrable Securities are included (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
(b) The Company agrees not to effect any public sale or distribution of
its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven (7) days prior to and during
the ninety (90)-day period beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration (except as part
of such underwritten registration or pursuant to registrations on Form S-8 or
Form S-4 or any successor forms thereto), unless the underwriters managing the
registered public offering otherwise agree.
5. Registration Procedures. Whenever the holders of Registrable Securities have
requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the
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EXHIBIT 6
intended method of disposition thereof including the registration of common
stock that may be obtained upon conversion of Preferred Stock held by a holder
of Registrable Securities requesting registration, and pursuant thereto the
Company will as expeditiously as possible:
(a) prepare and file (in the case of a Demand Registration not more than
ninety (90) days after request therefor) with the Commission a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration statement to become effective (provided that as far
in advance as practicable before filing a registration statement or prospectus
or any amendments or supplements thereto, the Company will furnish to the
counsel selected by the holders of a majority of the Registrable Securities
covered by such registration statement copies of all such documents proposed to
be filed, which documents will be subject to the review of such counsel);
(b) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than one hundred and eighty (180) days and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus) and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such seller, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then listed and,
if not so listed, to be listed on the National Association of Securities Dealers
automated quotation system;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities
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EXHIBIT 6
being sold or the underwriters, if any, reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities (including, without
limitation, effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable Securities,
any underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(j) permit any holder of Registrable Securities which holder, in its sole
and exclusive judgment, might be deemed to be an underwriter or a controlling
person of the Company, to participate in the preparation of such registration or
comparable statement and to require the insertion therein of material, furnished
to the Company in writing, which in the reasonable judgment of such holder and
its counsel should be included;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company will promptly notify the holders of Registrable
Securities and will use its reasonable best efforts promptly to obtain the
withdrawal of such order;
(l) obtain a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters as the holders of a majority of the Registrable
Securities being sold reasonably request; and
(m) in connection with an underwritten public offering, (i) cooperate with
the selling holders of Registrable Securities, the underwriters participating in
the offering and their counsel in any due diligence investigation reasonably
requested by the selling holders or the underwriters in connection therewith and
(ii) participate, to the extent reasonably requested by the managing underwriter
for the offering or the selling holder, in efforts to sell the Registrable
Securities under the offering (including, without limitation, participating in
"roadshow" meetings with prospective investors) that would be customary for
underwritten primary offerings of a comparable amount of equity securities by
the Company.
6. Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, and fees and disbursements of counsel
for the Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "Registration Expenses"), will be borne
as provided in this Agreement, except that the Company will, in any event, pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any annual audit or quarterly review, the expense of any liability
insurance and the expenses and fees for listing the securities to be registered
on each securities exchange on which similar securities issued by the Company
are then listed or on the National Association of Securities Dealers automated
quotation system. The Company shall not be required to pay an underwriting
discount with respect to any shares being sold by
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EXHIBIT 6
any party other than the Company in connection with an underwritten public
offering of any of the Company's securities pursuant to this Agreement.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable Securities
covered by such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
initially requesting such registration.
(c) The Company will reimburse the holders of Registrable Securities for
the reasonable fees and expenses (including the fees and expenses of counsel
chosen by the holders of a majority of the Registrable Securities) incurred by
such holders in enforcing any of their rights under this Agreement.
7. Indemnification.
(a) Indemnification of Selling Stockholders by the Company. The Company
agrees to indemnify and hold harmless each holder of Registrable Securities
which are registered pursuant hereto (each a "Selling Stockholder") and each
person, if any, who controls any Selling Stockholder within the meaning of
Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the registration statement (or any
amendment thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or the
prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided, that subject to Section 7(d) below any such
settlement is effected with the prior written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by such Selling Stockholder),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or (ii) above;
Notwithstanding the foregoing, this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by the Selling Stockholder expressly for use in the registration
statement (or any amendment thereto), or any preliminary prospectus or the
prospectus (or any amendment or supplement thereto) or by such Selling
Stockholder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such Selling Stockholder with a sufficient number of copies of the
same.
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EXHIBIT 6
(b) Indemnification of Company by the Selling Stockholders. Each Selling
Stockholder, severally and not jointly, agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the registration
statement and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 7(a) above, as incurred, but only with respect to
untrue or alleged untrue statements or omissions made in the registration
statement (or any amendment thereto), or any preliminary prospectus or any
prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Selling Stockholder with respect to such Selling Stockholder expressly for
use in the registration statement (or any amendment or supplement thereto);
provided, that such Selling Stockholder's aggregate liability under this Section
7 shall be limited to an amount equal to the net proceeds (after deducting the
underwriting discount, but before deducting expenses) received by such Selling
Stockholder from the sale of Registrable Securities pursuant to a registration
statement filed pursuant to this Agreement.
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 7(a), counsel
to the indemnified parties shall be selected by the Company, subject to the
approval of the holders of a majority of the Registrable Securities included in
a registration hereunder, which shall not be unreasonably withheld and, in the
case of parties indemnified pursuant to Section 7(b), counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may participate
at its own expense in the defense of any such action and counsel to the
indemnifying party shall also be counsel for the indemnified parties; provided,
that if under applicable principals of legal ethics, there is a conflict of
interest that prohibits such counsel from representing the indemnifying parties
as well as the indemnified parties, the indemnifying parties shall be liable for
fees and expenses of one additional counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 7 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent. If at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by Section 7(a)(ii) effected
without its written consent if (i) such settlement is entered into more than
forty-five (45) days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least thirty (30) days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
(e) Contribution.
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EXHIBIT 6
(i) If a claim for indemnification under Section 7(a) or 7(b) is
unavailable to an indemnified party because of a failure or refusal of a
governmental authority to enforce such indemnification in accordance with its
terms (by reason of public policy or otherwise), then each indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the actions, statements or
omissions that resulted in such losses as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been taken
or made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any losses shall
be deemed to include, subject to the limitations set forth in this Section, any
reasonable attorneys' or other reasonable fees or expenses incurred by such
party in connection with any proceeding to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
this Section was available to such party in accordance with its terms.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7(e) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 7(e), a holder shall
not be required to contribute, in the aggregate, any amount in excess of the
amount by which the proceeds actually received by such holder from the sale of
the Registrable Securities subject to the proceeding exceeds the amount of any
damages that the holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(iii) The indemnity and contribution agreements contained in this
Section are in addition to any liability that the indemnifying parties may have
to the indemnified parties.
8. Participation in Underwritten Registrations. No Person may participate in any
registration hereunder which is underwritten unless such Person (a) agrees to
sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements; provided, that no holder of
Registrable Securities included in any underwritten registration shall be
required to make any representations or warranties to the Company or the
underwriters other than representations and warranties regarding such holder,
such holder's Registrable Securities and such holder's intended method of
distribution or to undertake any indemnification obligations to the Company or
the underwriters with respect thereto, except as otherwise provided in Section 7
hereof.
9. Miscellaneous.
(a) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
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EXHIBIT 6
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(b) Successors and Assigns. All covenants and agreements in this Agreement
by or on behalf of any of the parties hereto will bind and inure to the benefit
of the permitted respective successors and assigns of the parties hereto whether
so expressed or not. In addition, whether or not any express assignment has been
made, the provisions of this Agreement which are for the benefit of purchasers
or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(c) Notices. All notices, requests, consents and other communications
provided for herein shall be in writing and shall be (i) delivered in person,
(ii) transmitted by telecopy, (iii) sent by first-class, registered or certified
mail, postage prepaid, or (iv) sent by reputable overnight courier service, fees
prepaid, to the recipient at the address or telecopy number set forth below, or
such other address or telecopy number as may hereafter be designated in writing
by such recipient. Notices shall be deemed given upon personal delivery, seven
days following deposit in the mail as set forth above, upon acknowledgment by
the receiving telecopier or one day following deposit with an overnight courier
service.
If to the Company:
Velocity Express Corporation
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx
Secretary and General Counsel
If to any of the Series H Purchasers:
To the address for such Series H Purchaser indicated on
the Series H Purchaser Signature Page.
or such other address or to the attention of such other Person as the recipient
party shall have specified by prior written notice to the sending party.
(d) Interpretation of Agreement; Severability. The provisions of this
Agreement shall be applied and interpreted in a manner consistent with each
other so as to carry out the purposes and intent of the parties hereto, but if
for any reason any provision hereof is determined to be unenforceable or
invalid, such provision or such part thereof as may be unenforceable or invalid
shall be deemed severed from the Agreement and the remaining provisions carried
out with the same force and effect as if the severed provision or part thereof
had not been a part of this Agreement.
(e) Governing Law. The corporate law of the State of Delaware shall govern
all issues concerning the relative rights of the Company and its stockholders.
All other provisions of this Agreement shall be governed by and construed in
accordance with the internal laws of the State of New
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EXHIBIT 6
York, without giving effect to principles of conflicts of laws or choice of law
of the State of New York or any other jurisdiction which would result in the
application of the laws of any jurisdiction other than the State of New York.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same Agreement.
(g) Entire Agreement. This document and the Purchase Agreement embody the
complete agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
(h) Waiver of Jury Trial. The parties to this Agreement each hereby
waives, to the fullest extent permitted by law, any right to trial by jury of
any claim, demand, action, or cause of action (i) arising under this Agreement
or (ii) in any way connected with or related or incidental to the dealings of
the parties hereto in respect of this Agreement or any of the transactions
related hereto, in each case whether now existing or hereafter arising, and
whether in contract, tort, equity, or otherwise. The parties to this Agreement
each hereby agrees and consents that any such claim, demand, action, or cause of
action shall be decided by court trial without a jury and that the parties to
this Agreement may file an original counterpart of a copy of this Agreement with
any court as written evidence of the consent of the parties hereto to the waiver
of their right to trial by jury.
* * * * *
10
EXHIBIT 6
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first written above.
Velocity Express Corporation
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
11
EXHIBIT 6
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first written above.
TH Xxx Xxxxxx Ventures, L.P.
(f/k/a TH Xxx.Xxxxxx Internet Partners, L.P.)
By: TH Xxx Xxxxxx Fund Advisors, L.P., its General Partner
By: TH Xxx Xxxxxx Fund Advisors, LLC., its General Partner
/s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Principal
TH Xxx Xxxxxx Parallel Ventures, L.P.
(f/k/a TH Xxx.Xxxxxx Internet Parallel Partners, L.P.)
By: TH Xxx Xxxxxx Fund Advisors, L.P., its General Partner
By: TH Xxx Xxxxxx Fund Advisors, LLC., its General Partner
/s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Principal
THLi Coinvestment Partners, LLC
/s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Principal
Blue Star I, LLC
By: /s/ Xxxxxx X. Xxx
---------------------------------
Name: Xxxxxx H, Xxx
Title: Sole Member
