Exhibit 10.44
APPENDIX C
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of , 2004
--
among Velocity Express Corporation, a Delaware corporation (the "Company) and
the persons executing a Series K Purchaser Signature Page attached hereto (each
a "Series K Purchaser"). Capitalized terms used herein but not otherwise defined
have the meaning set forth in Section 1 hereof.
WHEREAS, the Series K Purchasers and the Company have entered into
certain Stock Purchase Agreements, pursuant to which the Series K Purchasers
purchased from the Company certain of the shares of the Company's Series K
Convertible Preferred Stock, par value $.004 per share (the "Series K Preferred
Stock").
WHEREAS, the Company hereby desires to, among other things, grant the
Series K 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 K 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 K Purchasers" means any purchasers of Series K Preferred
Stock.
2. Demand Registrations.
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(a) Requests for Registration. Subject to the limitations and lock-up period
set forth in the Series K Stock purchase Agreement, the holders of a
majority of the Series K 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 K Stock purchase Agreement, the holders of the Series K
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, 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.
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(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 K
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 tha
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.
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(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;
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(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
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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
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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
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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.
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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 K Purchasers:
To the address for such Series K Purchaser indicated on the
Series K 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
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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.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement as of the date first written above.
Velocity Express Corporation
By:
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SERIES K PURCHASERS SIGNATURE PAGE
By
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Name:
Address for Notices:
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