EXHIBIT 7
EXECUTION COPY
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STOCKHOLDERS' AGREEMENT
AMONG
THE STOCKHOLDERS NAMED HEREIN
AND
COMVEST INVESTMENT PARTNERS II LLC
DATED AS OF FEBRUARY 11, 2005
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms...........................................1
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF COMVEST
SECTION 2.01. Due Organization and Authority..................................4
SECTION 2.02. No Conflict.....................................................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
SECTION 3.01. Organization and Authority......................................4
SECTION 3.02. No Conflict.....................................................4
ARTICLE IV
TRANSFER OF SHARES
SECTION 4.01. Legends.........................................................5
SECTION 4.02. Certain Restrictions on Sale and Encumbrance....................5
SECTION 4.03. Improper Sale or Encumbrance....................................5
SECTION 4.04. Tag-Along Rights................................................6
SECTION 4.05. Transferees to Execute Agreement................................7
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Notices.........................................................7
SECTION 5.02. Public Announcements............................................8
SECTION 5.03. Cumulative Remedies; Specific Performance.......................8
SECTION 5.04. Binding Effect; Successors in Interest..........................8
SECTION 5.05. Severability....................................................8
SECTION 5.06. Counterparts....................................................9
SECTION 5.07. Entire Agreement................................................9
SECTION 5.08. Governing Law; Submission to Jurisdiction.......................9
SECTION 5.09. Expenses........................................................9
SECTION 5.10. Amendments and Waivers; Assignment..............................9
SECTION 5.11. Headings.......................................................10
SECTION 5.12. Waiver of Jury Trial...........................................10
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STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT, dated as of February 11, 2005,
is entered into among ComVest Investment Partners II LLC ("ComVest") and each
Person (other than ComVest) who becomes a signatory hereto (such signatories,
individually, a "Stockholder" and, collectively, the "Stockholders").
Capitalized terms used herein but not otherwise defined shall have the meanings
ascribed to them in the Purchase Agreement.
W I T N E S S E T H:
WHEREAS, ComVest and CorVu Corporation (the "Company") are
parties to a Securities Purchase Agreement, dated as of February 11, 2005 (the
"Purchase Agreement"), pursuant to which ComVest purchased from the Company for
an aggregate purchase price of Six Million Five Hundred Thousand Dollars
($6,500,000), in reliance upon an exemption from registration pursuant to
Section 4(2) of the Securities Act, (i) a senior secured note (the "Senior
Secured Note") in an aggregate principal amount of $1,500,000, (ii) 22,000,000
shares of common stock, $0.01 par value per share ("Common Stock"), of the
Company for a purchase price of $3,300,000, (iii) 17,000 shares of convertible
preferred stock, par value $100 per share (the "Series C Preferred Stock"), (iv)
warrants (the "Preferred Warrant") to purchase 3,400,00 shares of Common Stock
and (v) warrants (the "Protective Warrant" and, together with the Preferred
Warrant, the "Warrants") to purchase 2,000,00 shares of Common Stock;
WHEREAS, the parties hereto desire to provide certain rights
and obligations of the Stockholders and ComVest with respect to the Stock to be
held by the Stockholders as hereinafter provided; and
NOW, THEREFORE, in consideration of the promises and the
mutual representations, covenants and agreements contained herein, and for other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
DEFINITIONS
SECTION 1.01 Certain Defined Terms. (a) As used in this
Agreement, the following terms shall have the following meanings:
"Affiliate" means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more
intermediaries, Controls , is Controlled by, or is under common Control
with, such specified Person.
"Agreement" means this Stockholders' Agreement, dated as of
February 11, 2005 and all amendments made hereto in accordance with the
provisions hereof.
"Beneficial Owner," "Beneficially Own" or "Beneficially Owned"
has the meaning given such term in Rule 13d-3 under the Exchange Act,
provided that Beneficial Ownership under Rule 13d-3(1)(i) shall be
determined based on whether a Person has a
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right to acquire Beneficial Ownership irrespective of whether such
right is exercisable within 60 days of the time of determination.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banking institutions in the State of New
York are authorized or required by law or executive order to close.
"Cash Equivalents" means (a) marketable direct obligations
issued or unconditionally guaranteed by the United States government or
issued by any agency thereof and backed by the full faith and credit of
the United States, in each case maturing within one year from the date
of acquisition thereof, (b) marketable direct obligations issued by any
state of the United States or any political subdivision of any such
state or any public instrumentality thereof maturing within one year
from the date of acquisition thereof and, at the time of acquisition,
having the highest rating obtainable from any of Standard & Poor's
Ratings Services, Xxxxx'x Investors Service, Inc. or Duff & Xxxxxx
Credit Rating Co. or (c) commercial paper maturing not more than one
year from the date of issuance thereof and, at the time of acquisition,
having the highest rating obtainable from either Standard & Poor's
Corporation or Xxxxx'x Investors Service, Inc.
"Control" (including the terms "Controlled by" and "under
common Control with") means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
securities, as trustee or executor, by contract or otherwise,
including, without limitation, the ownership, directly or indirectly,
of securities having the power to elect a majority of the board of
directors or similar body governing the affairs of such Person.
"Encumbrance" means any security interest, pledge, mortgage,
lien, charge, adverse claim of ownership or use, or other encumbrance
of any kind.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated
thereunder.
"Losses" means any claims, suits, judgments, losses, damages,
fines, costs or expenses (including reasonable legal fees and
expenses).
"Marketable Securities" means securities that are (a) (i)
securities of or other interests in any Person that are traded on a
United States national securities exchange or reported on by the
National Association of Securities Dealers Automated Quotation System
or (ii) debt securities on market terms of an issuer that has debt or
equity securities that are so traded or so reported on and in which
Marketable Securities a nationally recognized securities firm has
agreed to make a market, and (b) not subject to restrictions on
transfer as a result of any applicable contractual provisions or the
provisions of the Securities Act or, if subject to such restrictions
under the Securities Act, are also subject to registration rights
reasonably acceptable to the Person receiving such Marketable
Securities as consideration in a transaction pursuant to Article IV
hereof.
"Permitted Transferee" means, with respect to a specified
Stockholder, (i) a transferee by gift of Stock who is a member of the
family of such Person, or any trust for
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the benefit of any such family member and (ii) a transferee of Stock
who is a family member and receives such Stock by will or the laws of
descent and distribution. For purposes of this definition, the word
"family" shall include any spouse, lineal ancestor or descendant,
brother or sister.
"Person" means any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as
well as any syndicate or group that would be deemed to be a person
under Section 13(d)(3) of the Exchange Act.
"Price Determination Date" means in connection with any Sale
of Common Stock pursuant to Section 4.04 hereof, the date on which the
Prospective Seller receives a Notice of Acceptance indicating ComVest's
interest in participating such Sale.
"Sale" means, in respect of any Stock, property or other
asset, any sale, assignment, transfer, distribution or other
disposition thereof or of a participation therein, or other conveyance
of legal or beneficial interest therein, or any short position in a
security or any other action or position otherwise reducing risk
related to ownership through hedging or other derivative instruments,
whether voluntarily or by operation of law or any agreement or
commitment to do any of the foregoing.
"Securities Act" means the United States Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
"Third Party" means with respect to ComVest, any Person (other
than ComVest or an Affiliate of ComVest), and with respect to any
Stockholder, any other Person (other than a Permitted Transferee of
such Stockholder, ComVest or any Affiliate of ComVest).
(b) The following terms have the meanings set forth in the
section set forth opposite such term:
TERM SECTION
Common Stock Recitals
Company Recitals
Notice of Acceptance 4.04(c)
Offer 4.04(a)
Offer Notice 4.04(a)
Offer Period 4.04(c)
Offer Price 4.04(a)
Offered Shares 4.04(a)
ComVest Preamble
Prospective Seller 4.04(a)
Prospective Transferee 4.07
Purchase Offer 4.06(a)
Purchase Offer Notice 4.06(b)
Stockholder(s) Preamble
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF COMVEST
ComVest represents and warrants to the Stockholders as
follows:
SECTION 2.01. Due Organization and Authority. ComVest is a
limited liability company duly organized, validly existing, in good standing and
in active status under the laws of the State of Delaware. ComVest has the
absolute and unrestricted right, power and authority to enter into and to
perform its obligations under this Agreement and to consummate the transactions
contemplated by this Agreement; and the execution, delivery and performance by
ComVest of this Agreement have been duly authorized by all necessary action on
the part of ComVest. This Agreement has been duly executed and delivered and
constitutes the legal, valid and binding obligation of ComVest, enforceable
against it in accordance with its terms, subject to (i) laws of general
application relating to bankruptcy, fraudulent conveyance, insolvency and the
relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
SECTION 2.02. No Conflict. The execution, delivery and
performance of this Agreement by ComVest do not and will not (a) violate,
conflict with or result in the breach of any provision of its certificate of
incorporation or by-laws or any other document, agreement or instrument to which
ComVest is subject or by which ComVest is bound, or (b) conflict with or violate
any law, governmental order or governmental regulation applicable to it or any
of its assets, properties or businesses.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each Stockholder severally, but not jointly, represents and
warrants to ComVest and each other Stockholder as follows:
SECTION 3.01. Organization and Authority. Such Stockholder has
the absolute and unrestricted right, power and authority to enter into and to
perform his obligations under this Agreement and to consummate the transactions
contemplated by this Agreement. This Agreement has been duly executed and
delivered and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against him in accordance with its terms, subject to
(i) laws of general application relating to bankruptcy, fraudulent conveyance,
insolvency and the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
SECTION 3.02. No Conflict. The execution, delivery and
performance of this Agreement by such Stockholder do not and will not conflict
with or violate any law, governmental regulation or governmental order
applicable to such Stockholder or any of his assets, properties or businesses or
any other document, agreement or instrument to which such Stockholder is subject
or by which such Stockholder is bound.
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ARTICLE IV
TRANSFER OF SHARES
SECTION 4.01. Legends. The Company shall affix to each
certificate evidencing Common Stock issued to Stockholders a legend in
substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN A
STOCKHOLDERS' AGREEMENT DATED AS OF FEBRUARY 11, 2005, AS IT
MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE
AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER. NO
REGISTRATION OF TRANSFER OF THESE SHARES WILL BE MADE ON THE
BOOKS OF THE ISSUER UNLESS AND UNTIL SUCH RESTRICTIONS SHALL
HAVE BEEN COMPLIED WITH."
SECTION 4.02. Certain Restrictions on Sale and Encumbrance. 1.
Until such time as all of the Shares, Conversion Shares and Warrant Shares are
fully registered and freely tradable as provided in the Registration Rights
Agreement, no Stockholder shall, directly or indirectly (through the transfer of
any securities of the Company of any Person that holds, or Controls any Person
that holds, such securities of the Company or otherwise) make or solicit any
Sale of, or create, incur or assume any Encumbrance with respect to, any
securities of the Company Beneficially Owned by such Stockholder, other than any
Sale to a Permitted Transferee who shall agree in writing to be bound by the
provisions of this Agreement, or any Sale in accordance with this Article IV.
(b) No Sale of Common Stock to a Permitted Transferee shall be
effective if a purpose or effect of such transfer shall have been to circumvent
the provisions of this Section 4.02. Each Stockholder shall remain responsible
for the performance of this Agreement by each Permitted Transferee of such
Stockholder to which Common Stock is transferred. If any Permitted Transferee to
which any securities of the Company is transferred pursuant to Section 4.02(a)
ceases to be a Permitted Transferee of the Stockholder from which or whom it
acquired such securities of the Company pursuant to such provision, such Person
shall reconvey such securities of the Company to such transferring Stockholder
immediately before such Person ceases to be a Permitted Transferee of such
transferring Stockholder so long as such Person knows of its upcoming change of
status immediately prior thereto. If such change of status is not known until
after its occurrence, the former Permitted Transferee shall make such transfer
to such transferring Stockholder as soon as practicable after the former
Permitted Transferee receives notice thereof. For all purposes of this
Agreement, a Permitted Transferee shall be obligated under this Agreement as if
he, she or it were the transferring Stockholder.
SECTION 4.03. Improper Sale or Encumbrance. Any attempt not in
compliance with this Agreement to make any Sale of, or create, incur or assume
any Encumbrance with respect to, any securities of the Company shall be null and
void and of no force and effect, the purported transferee shall have no rights
or privileges in or with respect to the Company, and the Company shall not give
any effect in the Company's stock records to such attempted Sale or Encumbrance.
Furthermore, the Stockholder and the other parties engaging or attempting to
engage in such Sale shall indemnify and hold harmless the Company and each of
the
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Stockholders from all Losses that such indemnified Persons may incur (including,
without limitation, incremental tax liability and lawyers' fees and expenses) in
enforcing the provisions of this Agreement.
SECTION 4.04. Tag-Along Rights. 1. If any Stockholder receives
from or otherwise negotiates with a Third Party a bona fide offer (an "Offer")
to purchase for cash, Cash Equivalents or Marketable Securities any Common Stock
Beneficially Owned or held by such Stockholder, and such Stockholder intends to
sell such Common Stock to such Third Party, such Stockholder (the "Prospective
Seller") shall provide ComVest with written notice of such Offer (an "Offer
Notice"). The Offer Notice shall identify the Third Party making the Offer, the
number and type of shares of Common Stock covered by the Offer (the "Offered
Shares"), the price per share of Common Stock at which a Sale is proposed to be
made (the "Offer Price"), the form of consideration proposed to be paid and all
other material terms and conditions of the Offer.
(b) If the Offer Price includes
(i) any Marketable Securities, the value of such securities
shall be determined by calculating a volume-weighted average of the
closing prices of such securities over the ten trading-day period
ending on the Price Determination Date on the market with the largest
trading volume in such securities; or
(ii) any Cash Equivalents, the value of such Cash Equivalents
shall be determined by reference to the closing price thereof on the
market with the largest trading volume in such securities on the Price
Determination Date.
(c) ComVest shall have the right, but not the obligation, to
include the shares of Common Stock owned by ComVest and its Affiliates, on a pro
rata basis in any such Sale, on the same terms and conditions as set forth in
the Offer Notice, pursuant to the procedure set forth hereunder, provided that
such terms and conditions, including the price per Share, are identical to those
set forth in the Offer. The Offer Notice shall state that ComVest and its
Affiliates may participate in the Sale by delivering, within 10 Business Days of
having received the Offer Notice (the "Offer Period"), a notice to the
Prospective Seller stating that it intends to exercise its rights pursuant to
this Section 4.04 and to sell its and its Affiliates' pro rata shares of Common
Stock (the "Tag Along Shares") for the consideration, and on the terms and
conditions, set forth in the Offer (the "Notice of Acceptance"). The Notice of
Acceptance shall contain a specific provision entitling the Prospective Seller
to conclude the Sale on behalf of ComVest and its Affiliates; provided, however,
that such proxy will not entitle the Prospective Seller to conclude any
agreement on behalf of ComVest and its Affiliates which differs from the
consideration, terms and conditions described in the Offer Notice. If no Notice
of Acceptance is received by the Prospective Seller within the Offer Period, or
if the Notice of Acceptance does not fulfill all of the foregoing requirements,
ComVest shall have waived its rights hereunder. If the Notice of Acceptance is
received by the Prospective Seller within the Offer Period, then the Prospective
Seller shall, for a period not to exceed 15 Business Days, seek to obtain from
the third party an offer, for the consideration and on the same terms and
conditions described in the Offer Notice, of its and its Affiliates' pro rata
shares of Common Stock as well as all of the pro rata shares of Common Stock
offered for sale by ComVest and its Affiliates (collectively, the "Total
Shares").
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In case the prospective third party refuses to purchase all of the Total Shares,
then the Prospective Seller shall not be entitled to consummate a Sale of any
shares of Common Stock to such third party.
(d) Anything in this Section 4.04 to the contrary
notwithstanding, the provisions of this Section 4.04 shall not be applicable to
any Sale to a Permitted Transferee.
SECTION 4.05. Transferees to Execute Agreement. Each
Stockholder agrees that it will not, as long as such Stockholder or ComVest
Beneficially Own any shares of Common Stock, directly or indirectly, make any
Sale of, or create, incur or assume any Encumbrance with respect to, any shares
of Common Stock Beneficially Owned by such Stockholder unless prior to the
consummation of any such Sale or the creation, incurrence or assumption of such
Encumbrance, the Person to whom such Sale is proposed to be made or the Person
in whose favor such Encumbrance is proposed to be created, incurred or assumed
(a "Prospective Transferee") (i) executes and delivers this Agreement to ComVest
and each Stockholder, and (ii) unless such Prospective Transferee is a
recognized institutional investor, delivers to ComVest an opinion of counsel,
satisfactory in form and substance to ComVest, to the effect that the execution
of this Agreement by such Prospective Transferee makes this Agreement a legal,
valid and binding obligation of such Prospective Transferee enforceable against
such Prospective Transferee in accordance with its terms. Upon the execution and
delivery by such Prospective Transferee of this Agreement and, if required, the
delivery of the opinion of counsel referred to in clause (ii) of the preceding
sentence, such Prospective Transferee shall be deemed a "Stockholder" for
purposes of this Agreement and shall have the rights and be subject to the
obligations of a Stockholder under this Agreement, in each case with respect to
the Stock owned by such Prospective Transferee or in respect of which such
Encumbrance shall have been created, incurred or assumed.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Notices.
Any notice or other communication required or permitted to be
delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile telephone number set forth beneath the name of such party
below (or to such other address or facsimile telephone number as such party
shall have specified in a written notice given to the other parties hereto):
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if to ComVest or the Surviving Corporation:
ComVest Investment Partners II LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx
Phone: (000) 000-0000
Facsimile No: (000) 000-0000
with copy to (which copy shall not constitute notice):
Xxxxxxxxx Traurig, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XxxXxxx 00000
Attn: Xxxx Annex, Esq.
Phone: (000) 000-0000
Facsimile No.: (000) 000-0000
if to a Stockholder: At the address specified on the signature pages.
SECTION 5.02. Public Announcements. Except as required by law,
no party to this Agreement shall make, or cause to be made, any press release or
public announcement in respect of this Agreement or otherwise communicate with
any news media without the prior written consent of the other parties, and the
parties shall cooperate as to the timing and contents of any such press release
or public announcement.
SECTION 5.03. Cumulative Remedies; Specific Performance. The
rights and remedies of the parties hereto shall be cumulative (and not
alternative). The parties to this Agreement agree that, in the event of any
breach or threatened breach by any party to this Agreement of any covenant,
obligation or other provision set forth in this Agreement for the benefit of any
other party to this Agreement, such other party shall be entitled (in addition
to any other remedy that may be available to it) to seek (a) a decree or order
of specific performance or mandamus to enforce the observance and performance of
such covenant, obligation or other provision, and (b) an injunction restraining
such breach or threatened breach.
SECTION 5.04. Binding Effect; Successors in Interest. (a) This
Agreement shall be binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and assigns (if any). No
Stockholder shall, directly or indirectly, assign any rights or obligations
hereunder to any Person except as expressly provided herein.
SECTION 5.05. Severability. In the event that any provision of
this Agreement, or the application of any such provision to any Person or set of
circumstances, shall be
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determined to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this Agreement, and the application of such provision to Persons or
circumstances other than those as to which it is determined to be invalid,
unlawful, void or unenforceable, shall not be impaired or otherwise affected and
shall continue to be valid and enforceable to the fullest extent permitted by
law.
SECTION 5.06. Counterparts. This Agreement may be executed in
several counterparts and by facsimile, each of which shall constitute an
original and all of which, when taken together, shall constitute one agreement.
SECTION 5.07. Entire Agreement. This Agreement sets forth the
entire understanding of the parties hereto relating to the subject matter hereof
and thereof and supersedes all prior agreements and understandings among or
between any of the parties relating to the subject matter hereof and thereof.
SECTION 5.08 Governing Law; Submission to Jurisdiction. All
questions concerning the construction, validity, enforcement and interpretation
of the Transaction Documents shall be governed by and construed and enforced in
accordance with the internal laws of the State of New York, without regard to
the principles of conflicts of law thereof. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in
the City of New York, borough of Manhattan for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein (including with respect to the enforcement of any of the
Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any suit, action or Action, any claim that it is not personally subject to
the jurisdiction of any such court, that such suit, action or Action is improper
or inconvenient venue for such Action. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or Action by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. The parties hereby waive all
rights to a trial by jury. If either party shall commence an action or Action to
enforce any provisions of the Transaction Documents, then the prevailing party
in such action or Action shall be reimbursed by the other party for its
attorneys' fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or Action.
SECTION 5.09. Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such costs and expenses.
SECTION 5.10. Amendments and Waivers; Assignment. 1. Any
provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed, in the case of an amendment, by
all parties hereto or, in the case of a waiver, by the party or parties against
whom the waiver is to be effective.
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(b) No failure or delay by any party in exercising any right,
power or privilege hereunder (other than a failure or delay beyond a period of
time specified herein) shall operate as a waiver thereof and no single or
partial exercise thereof shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 5.11. Headings. The headings and subheadings in this
Agreement are included for convenience and identification only and are in no way
intended to describe, interpret, define or limit the scope, extent or intent of
this Agreement or any provision hereof.
SECTION 5.12. Waiver of Jury Trial. Each of the parties hereto
hereby waives to the fullest extent permitted by applicable law any right it may
have to a trial by jury with respect to any litigation directly or indirectly
arising out of, under or in connection with this Agreement. Each of the parties
hereto (a) certifies that no representative, agent or attorney of any other
party has represented, expressly or otherwise, that such other party would not,
in the event of litigation, seek to enforce that foregoing waiver and (b)
acknowledges that it and the other party hereto have been induced to enter into
this Agreement by, among other things, the mutual waivers and certifications in
this Section 5.12.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, or caused this Agreement to be duly executed by their respective duly
authorized signatories, as of the date first above written.
COMVEST INVESTMENT PARTNERS II LLC
By:
-----------------------------------------
Name:
Title:
STOCKHOLDERS:
Address:
--------------------------------------------
(Xxxxxx X. XxxXxxxxx)
c/o CorVu Australasia Pty. Ltd.
Xxxxx 0, 000-000 Xxxxxxx Xxxxxxx
Xxxxxxxxx XXX 0000
Xxxxxxxxx
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