Exhibit 13
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
April 23, 2004 among Velocity Express Corporation, a Delaware corporation (the
"Company) and the persons executing a Series J Purchaser Signature Page attached
hereto (each a "Series J Purchaser"). Capitalized terms used herein but not
otherwise defined have the meaning set forth in Section 1 hereof.
WHEREAS, the Series J Purchasers and the Company have entered
into certain Stock Purchase Agreements, pursuant to which the Series J
Purchasers purchased from the Company certain of the shares of the Company's
Series J Convertible Preferred Stock, par value $.004 per share (the "Series J
Preferred Stock").
WHEREAS, the Company hereby desires to, among other things,
grant the Series J 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.
"Person" means any individual, corporation (including any
non-profit corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization, labor union,
or other entity or governmental entity
"Registrable Securities" means, the Common Stock issuable or
issued upon conversion of the Series J Preferred Stock (including Common Stock
issued pursuant to stock splits, stock dividends and similar distributions),
excluding, however, any Registrable Securities sold by a person in a transaction
in which its rights under this Agreement are not assigned and any Common Stock
which has previously been registered, which the holder thereof has sold pursuant
to an effective registration statement under the Securities Act or which has
sold or transferred to or through a broker, dealer or underwriter in a public
distribution, a public securities transaction or pursuant to Rule 144 of the
Securities Act.
"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 J Purchasers" means any purchasers of Series J
Preferred Stock.
2. Demand Registrations.
1
(a) Requests for Registration. Subject to the limitations and lock-up
period set forth in the Series J Stock purchase Agreement, the holders
of a majority of the Series J 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".
(b) Short-Form Registrations. Subject to the limitations and lock-up period
set forth in the Series J Stock purchase Agreement, the holders of the
Series J 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 Form S-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,
the number of other Registrable Securities not included pursuant to
clause (i) above 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.
2
(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 J 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.
(b) 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 the 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.
(c) 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.
(d) 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.
3
(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 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;
4
(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 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
5
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 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
6
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.
(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
7
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.
(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.
8
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 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 J Purchasers:
To the address for such Series J Purchaser
indicated on the Series J 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
9
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 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, the Purchase Agreement and the
"Related Documents" (as defined in the Purchase Agreement) embodies 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
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first written above.
Velocity Express Corporation
By:______________________________________
11
SERIES J PURCHASERS SIGNATURE PAGE
By_____________________________________
Name:
Address for Notices:
12
