IMPORTANT: PLEASE READ CAREFULLY BEFORE SIGNING:
SIGNIFICANT REPRESENTATIONS ARE CALLED FOR HEREIN.
SUBSCRIPTION AGREEMENT
AND
LETTER OF INVESTMENT INTENT
April 27, 1999
CorVu Corporation
0000 X. 00xx Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
I hereby subscribe for the purchase of One Hundred Fifty Thousand
Units, each Unit consisting of one share of common stock of CorVu Corporation, a
Minnesota corporation (the "Company") and one warrant to purchase one share of
common stock of the Company at the price of One Cent ($.01) per share. The price
per Unit shall be Two Dollars ($2) for an aggregate purchase price of Three
Hundred Thousand Dollars ($300,000), upon the terms and conditions set forth
below. I acknowledge that this subscription is contingent upon acceptance in
whole or in part by the Company and herewith submit a check payable to "CorVu
Corporation" in full payment for such Units.
I understand that the Shares have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), on the ground that
the acquisition of the Shares by me is exempt under Section 4(2) thereof.
In partial consideration of the issuance of the Shares to me, I hereby
represent, warrant and agree as follows:
1. Knowledge of Reliance. I understand and recognize that the Company,
in claiming a Section 4(2) exemption for the issuance of the Shares, is relying
upon the statements and representations made by me in this letter.
2. Investment Purpose in Acquiring the Shares.
a) Generally. I am acquiring the Shares for my account for
investment purposes only and not with a view to their resale or distribution. I
have no present intention to divide my participation with others or to resell or
otherwise dispose of all or any part of the Shares. In making these
representations, I understand that in the view of the Securities and Exchange
Commission the statutory exemption referred to above would not be available if,
notwithstanding my representations, I have in mind merely acquiring the Shares
for resale upon the occurrence or nonoccurrence of some predetermined event.
b) Compliance With Securities Act. I agree that if I sell or
distribute the Shares in the future, I shall do so pursuant to the requirements
of the Securities Act and applicable state securities laws. I agree that I will
not transfer any part of the Shares without (i) an effective registration under
the Securities Act and applicable state securities laws, or (ii) obtaining an
opinion of counsel satisfactory in form and substance to counsel for the Company
stating that the proposed transaction will not result in a prohibited
transaction under the Securities Act and applicable state securities laws.
c) Restrictive Legend. I agree that you may place a
restrictive legend on the Shares containing substantially the following
language:
"The Shares represented by this certificate have not
been registered under either the Securities Act of
1933, as amended, or applicable state securities
laws, and are subject to an investment letter. They
may not be sold, offered for sale or transferred in
the absence of an effective registration under the
Securities Act of 1933, as amended, and the
applicable state securities laws, or an opinion of
counsel satisfactory in form and substance to counsel
for the Company that such transaction will not result
in a prohibited transaction under the Securities Act
of 1933, as amended, or the applicable state
securities laws."
d) Stop Transfer Order. I agree that the Company may place a
stop transfer order with its registrar and stock transfer agent covering all
certificates representing the Shares.
3. Knowledge of Restrictions Upon Transfer of the Shares. I understand
that the Shares are not freely transferable and may in fact be prohibited from
sale for an extended period of time and that, as a consequence thereof, I may
have extremely limited opportunities to dispose of the Shares. I understand that
Rule 144 of the Securities and Exchange Commission permits the transfer of
"restricted securities" of the type here involved only under certain conditions,
including a minimum one-year holding period and availability to the public of
certain information concerning the Company.
4. Information About the Company. I acknowledge that I am a director of
the Company and that, by reason of my relationship with the Company as well as
other actions taken by me, I am fully aware of and advised concerning the
present financial condition of the Company, its business affairs and its
prospects for future business.
5. Knowledgeable Investor. I understand that an investment in the
Company is speculative and involves a high degree of risk, and that there can be
no assurance that I will receive any return of or on my investment. I can bear
the economic risk of an investment in the Shares for an indefinite period of
time, can afford to sustain a complete loss of such investment, have no need for
liquidity in connection with an investment in the Shares, and can afford to hold
the Shares indefinitely.
Yours very truly,
Xxxxxx Xxxxx
Address:
ACCEPTANCE
This Subscription Agreement and Letter of Investment Intent is accepted
as of April 27, 1999.
CORVU CORPORATION
By:
Its:
April 27, 1999
WARRANT
To Purchase 150,000 Shares of Common Stock
of
CorVu Corporation
THIS CERTIFIES THAT, for good and valuable consideration, Xxxxxx Xxxxx
("Kurdi"), or his registered assigns, is entitled to subscribe for and purchase
from CorVu Corporation, a Minnesota corporation (the "Company"), at any time up
to and including April 26, 2006, One Hundred Fifty Thousand (150,000) fully paid
and nonassessable shares of the Common Stock of the Company at the price of $.01
per share (the "Warrant Exercise Price"), subject to the antidilution provisions
of this Warrant; provided, however, that any purchases by the Holder must be in
25,000-share blocks. The shares which may be acquired upon exercise of this
Warrant are referred to herein as the "Warrant Shares." As used herein, the term
"Holder" means Kurdi, any party who acquires all or a part of this Warrant as a
registered transferee of Kurdi, or any record holder or holders of the Warrant
Shares issued upon exercise, whether in whole or in part, of the Warrant. The
term "Common Stock" means and includes the Company's presently authorized common
stock, no par value, and shall also include any capital stock of any class of
the Company hereafter authorized which shall not be limited to a fixed sum or
percentage in respect of the rights of the holders thereof to participate in
dividends or in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution, or winding up of the Company.
This Warrant is subject to the following provisions, terms and
conditions:
1. Exercise; Transferability.
(a) The rights represented by this Warrant may be exercised by the
Holder hereof, in whole or in part (but not as to a fractional share of Common
Stock), by written notice of exercise (in the form attached hereto) delivered to
the Company at the principal office of the Company prior to the expiration of
this Warrant and accompanied or preceded by the surrender of this Warrant along
with a check in payment of the Warrant Exercise Price for such shares.
(b) This Warrant is transferable in whole or in part, subject to
applicable federal and state securities laws and regulations. This Warrant may
not be sold, transferred, assigned, hypothecated or divided into two or more
Warrants of smaller denominations, nor may any Warrant shares issued pursuant to
exercise of this Warrant be transferred, except as provided in Section 7 hereof.
2. Exchange and Replacement. Subject to Sections l and 7 hereof, this
Warrant is exchangeable upon the surrender hereof by the Holder to the Company
at its office for new Warrants of like tenor and date representing in the
aggregate the right to purchase the number of Warrant Shares purchasable
hereunder, each of such new Warrants to represent the right to purchase such
number of Warrant Shares (not to exceed the aggregate total number purchasable
hereunder) as shall be designated by the Holder at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it of the
loss, theft, destruction, or mutilation of this Warrant, and, in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it,
and upon surrender and cancellation of this Warrant, if mutilated, the Company
will make and deliver a new Warrant of like tenor, in lieu of this Warrant;
provided, however, that if Kurdi shall be such Holder, an agreement of indemnity
by such Holder shall be sufficient for all purposes of this Section 2. This
Warrant shall be promptly canceled by the Company upon the surrender hereof in
connection with any exchange or replacement. The Company shall pay all expenses,
taxes (other than stock transfer taxes), and other charges payable in connection
with the preparation, execution, and delivery of Warrants pursuant to this
Section 2.
3. Issuance of the Warrant Shares.
(a) The Company agrees that the shares of Common Stock purchased hereby
shall be and are deemed to be issued to the Holder as of the close of business
on the date on which this Warrant shall have been surrendered and the payment
made for such Warrant Shares as aforesaid. Subject to the provisions of the next
section, certificates for the Warrant Shares so purchased shall be delivered to
the Holder within a reasonable time, not exceeding fifteen (15) days after the
rights represented by this Warrant shall have been so exercised, and, unless
this Warrant has expired, a new Warrant representing the right to purchase the
number of Warrant Shares, if any, with respect to which this Warrant shall not
then have been exercised shall also be delivered to the Holder within such time.
(b) Notwithstanding the foregoing, however, the Company shall not be
required to deliver any certificate for Warrant Shares upon exercise of this
Warrant except in accordance with exemptions from the applicable securities
registration requirements or registrations under applicable securities laws.
Nothing herein, however, shall obligate the Company to effect registrations
under federal or state securities laws, except as provided in Section 9. If
registrations are not in effect and if exemptions are not available when the
Holder seeks to exercise the Warrant, the Warrant exercise period will be
extended, if need be, to prevent the Warrant from expiring, until such time as
either registrations become effective or exemptions are available, and the
Warrant shall then remain exercisable for a period of at least 30 calendar days
from the date the Company delivers to the Holder written notice of the
availability of such registrations or exemptions. The Holder agrees to execute
such documents and make such representations, warranties, and agreements as may
be required solely to comply with the exemptions relied upon by the Company, or
the registrations made, for the issuance of the Warrant Shares.
4. Covenants of the Company. The Company covenants and agrees that all
Warrant Shares will, upon issuance, be duly authorized and issued, fully paid,
nonassessable, and free from all taxes, liens, and charges with respect to the
issue thereof. The Company further covenants and agrees that during the period
within which the rights represented by this Warrant may be exercised, the
Company will at all times have authorized and reserved for the purpose of issue
or transfer upon exercise of the subscription rights evidenced by this Warrant a
sufficient number of shares of Common Stock to provide for the exercise of the
rights represented by this Warrant.
5. Antidilution Adjustments. The provisions of this Warrant are subject
to adjustment as provided in this Section 5.
(a) The Warrant Exercise Price shall be adjusted from time to time such
that in case the Company shall hereafter:
(i) pay any dividends on any class of stock of the Company
payable in Common Stock or securities convertible into Common Stock;
(ii) subdivide its then outstanding shares of Common Stock
into a greater number of shares; or
(iii) combine outstanding shares of Common Stock, by
reclassification or otherwise;
then, in any such event, the Warrant Exercise Price in effect immediately prior
to such event shall (until adjusted again pursuant hereto) be adjusted
immediately after such event to a price (calculated to the nearest full cent)
determined by dividing (a) the number of shares of Common Stock outstanding
immediately prior to such event, multiplied by the then existing Warrant
Exercise Price, by (b) the total number of shares of Common Stock outstanding
immediately after such event (including the maximum number of shares of Common
Stock issuable in respect of any securities convertible into Common Stock), and
the resulting quotient shall be the adjusted Warrant Exercise Price per share.
An adjustment made pursuant to this Subsection shall become effective
immediately after the record date in the case of a dividend or distribution and
shall become effective immediately after the effective date in the case of a
subdivision, combination or reclassification. If, as a result of an adjustment
made pursuant to this Subsection, the Holder of any Warrant thereafter
surrendered for exercise shall become entitled to receive shares of two or more
classes of capital stock or shares of Common Stock and other capital stock of
the Company, the Board of Directors (whose determination shall be conclusive)
shall determine the allocation of the adjusted Warrant Exercise Price between or
among shares of such classes of capital stock or shares of Common Stock and
other capital stock. All calculations under this Subsection shall be made to the
nearest cent or to the nearest 1/100 of a share, as the case may be. In the
event that at any time as a result of an adjustment made pursuant to this
Subsection, the holder of any Warrant thereafter surrendered for exercise shall
become entitled to receive any shares of the Company other than shares of Common
Stock, thereafter the Warrant Exercise Price of such other shares so receivable
upon exercise of any Warrant shall be subject to adjustment from time to time in
a manner and on terms as nearly equivalent as practicable to the provisions with
respect to Common Stock contained in this Section.
(b) Upon each adjustment of the Warrant Exercise Price pursuant to
Section 5(a) above, the Holder of each Warrant shall thereafter (until another
such adjustment) be entitled to purchase at the adjusted Warrant Exercise Price
the number of shares, calculated to the nearest full share, obtained by
multiplying the number of shares specified in such Warrant (as adjusted as a
result of all adjustments in the Warrant Exercise Price in effect prior to such
adjustment) by the Warrant Exercise Price in effect prior to such adjustment and
dividing the product so obtained by the adjusted Warrant Exercise Price.
(c) In case of any consolidation or merger to which the Company is a
party other than a merger or consolidation in which the Company is the
continuing corporation, or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety, or in the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a merger of a
third corporation into the Company), there shall be no adjustment under
Subsection (a) of this Section above but the Holder of each Warrant then
outstanding shall have the right thereafter to convert such Warrant into the
kind and amount of shares of stock and other securities and property which he
would have owned or have been entitled to receive immediately after such
consolidation, merger, statutory exchange, sale, or conveyance had such Warrant
been converted immediately prior to the effective date of such consolidation,
merger, statutory exchange, sale, or conveyance and in any such case, if
necessary, appropriate adjustment shall be made in the application of the
provisions set forth in this Section with respect to the rights and interests
thereafter of any Holders of the Warrant, to the end that the provisions set
forth in this Section shall thereafter correspondingly be made applicable, as
nearly as may reasonably be, in relation to any shares of stock and other
securities and property thereafter deliverable on the exercise of the Warrant.
The provisions of this Subsection shall similarly apply to successive
consolidations, mergers, statutory exchanges, sales or conveyances.
(d) Upon any adjustment of the Warrant Exercise Price, then and in each
such case, the Company shall give written notice thereof, by first-class mail,
postage prepaid, addressed to the Holder as shown on the books of the Company,
which notice shall state the Warrant Exercise Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares of
Common Stock purchasable at such price upon the exercise of this Warrant,
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based.
6. No Voting Rights. This Warrant shall not entitle the Holder to any
voting rights or other rights as a shareholder of the Company.
7. Notice of Transfer of Warrant or Resale of the Warrant Shares.
(a) Subject to the sale, assignment, hypothecation, or other transfer
restrictions set forth in Section 1 hereof, the Holder, by acceptance hereof,
agrees to give written notice to the Company before transferring this Warrant or
transferring any Warrant Shares of such Holder's intention to do so, describing
briefly the manner of any proposed transfer. Promptly upon receiving such
written notice, the Company shall present copies thereof to the Company's
counsel and to counsel to the original purchaser of this Warrant. If in the
opinion of each such counsel the proposed transfer may be effected without
registration or qualification (under any federal or state securities laws), the
Company, as promptly as practicable, shall notify the Holder of such opinion,
whereupon the Holder shall be entitled to transfer this Warrant or to dispose of
Warrant Shares received upon the previous exercise of this Warrant, all in
accordance with the terms of the notice delivered by the Holder to the Company;
provided that an appropriate legend may be endorsed on this Warrant or the
certificates for such Warrant Shares respecting restrictions upon transfer
thereof necessary or advisable in the opinion of counsel and satisfactory to the
Company to prevent further transfers which would be in violation of Section 5 of
the Securities Act of 1933, as amended (the "1933 Act") and applicable state
securities laws; and provided further that the prospective transferee or
purchaser shall execute such documents and make such representations,
warranties, and agreements as may be required solely to comply with the
exemptions relied upon by the Company for the transfer or disposition of the
Warrant or Warrant Shares.
(b) If in the opinion of either of the counsel referred to in this
Section 7, the proposed transfer or disposition of this Warrant or such Warrant
Shares described in the written notice given pursuant to this Section 7 may not
be effected without registration or qualification of this Warrant or such
Warrant Shares the Company shall promptly give written notice thereof to the
Holder, and the Holder will limit his activities in respect to such as, in the
opinion of both such counsel, are permitted by law.
8. Fractional Shares. Fractional shares shall not be issued upon the
exercise of this Warrant, but in any case where the holder would, except for the
provisions of this Section, be entitled under the terms hereof to receive a
fractional share, the Company shall, upon the exercise of this Warrant for the
largest number of whole shares then called for, pay a sum in cash equal to the
sum of (a) the excess, if any, of the Market Price of such fractional share over
the proportional part of the Warrant Exercise Price represented by such
fractional share, plus (b) the proportional part of the Warrant Exercise Price
represented by such fractional share. For purposes of this Section, the term
"Market Price" with respect to shares of Common Stock of any class or series
means:
(i) if the Company's Common Stock is traded on an exchange or
is quoted on the Nasdaq National Market, then the average closing or
last sale prices, respectively, reported for the ten (10) business days
immediately preceding exercise of the Warrant,
(ii) if the Company's Common Stock is not traded on an
exchange or on the Nasdaq National Market but is traded on the Nasdaq
SmallCap Market or other over-the-counter market, then the average
closing bid and asked prices reported for the ten (10) business days
immediately preceding the exercise of the Warrant, and
(iii) if the Company's Common Stock is not traded on an
exchange, the Nasdaq National Market, or the Nasdaq SmallCap Market or
other over-the-counter market, then the price established by the
Company's Board of Directors.
IN WITNESS WHEREOF, CorVu Corporation has caused this Warrant to be
signed by its duly authorized officer and this Warrant to be dated April 27,
1999.
"Company"
CorVu Corporation
By
Its
To: CorVu Corporation
NOTICE OF EXERCISE OF WARRANT -- To Be
Executed by the Registered Holder in Order
to Exercise the Warrant
The undersigned hereby irrevocably elects to exercise the attached Warrant to
purchase for cash, _________________ of the shares issuable upon the exercise of
such Warrant, and requests that certificates for such shares (together with a
new Warrant to purchase the number of shares, if any, with respect to which this
Warrant is not exercised) shall be issued in the name of
------------------------------
(Print Name)
Please insert social security
or other identifying number
of registered holder of
certificate (______________) Address:
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Date: _________, 19__ ______________________________
Signature*
*The signature on the Notice of Exercise of Warrant must correspond to the name
as written upon the face of the Warrant in every particular without alteration
or enlargement or any change whatsoever. When signing on behalf of a
corporation, partnership, trust or other entity, PLEASE indicate your
position(s) and title(s) with such entity.
ASSIGNMENT FORM
To be signed only upon authorized transfer of Warrants.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and
transfers unto __________________________________________________ the right to
purchase the securities of CorVu Corporation to which the within Warrant relates
and appoints ____________________, attorney, to transfer said right on the books
of CorVu Corporation with full power of substitution in the premises.
Dated:________________ _____________________________
(Signature)
Address:
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