EXHIBIT A
PLAN OF MERGER
THIS PLAN OF MERGER (the "Plan of Merger"), dated as of the 14th day of
January, 2000 is by and between CorVu Corporation, a Minnesota corporation
("Seller"), and Minnesota American, Inc., a Minnesota corporation (the
"Surviving Corporation").
WHEREAS, the respective Boards of Directors of the Seller and the
Surviving Corporation deem it advisable for the general welfare and advantage of
the respective corporations and their respective shareholders that, subject to
the terms and conditions contained in this Plan of Merger and in that certain
Agreement and Plan of Reorganization, dated the 17th day of November, 1999 (the
"Reorganization Agreement"), and in accordance with the applicable laws of the
State of Minnesota, Seller be merged with and into the Surviving corporation
(the "Merger");
NOW, THEREFORE, the parties hereto, subject to the approval of their
respective shareholders as required by law, in consideration of the premises and
of the mutual covenants and agreements contained herein and of the benefits to
accrue to the parties hereto, have agreed and do hereby agree that Seller be
merged with and into the Surviving Corporation pursuant to the laws of the State
of Minnesota, and do hereby agree upon, prescribe and set forth the terms and
conditions of the Merger, the method of carrying the same into effect, and the
manner and basis of converting shares of Seller into shares of Stock of the
Surviving Corporation and cash, as follows:
ARTICLE 1.
THE MERGER; CONVERSION OF SHARES
1.1 The Merger. Subject to the terms and conditions of this Plan of
Merger, at the Effective Time (as defined in Section 1.2 hereof), Seller shall
be merged with and into Surviving Corporation in accordance with the provisions
of the Minnesota Business Corporation Act (the "MBCA"), whereupon the separate
corporate existence of Seller shall cease, and Surviving Corporation shall
continue as the surviving corporation (the "Surviving Corporation"). From and
after the Effective Time, the Surviving Corporation shall possess all the
property, rights, privileges, immunities, powers, and franchises and be subject
to all the debts, liabilities, obligations, restrictions, disabilities, and
duties of Seller and Surviving Corporation, all as more fully described in the
MBCA.
1.2 Effective Time. The Merger shall be effective upon filing with the
Minnesota Secretary of State Articles of Merger including this Plan of Merger
(the "Effective Time").
1.3 Conversion of Shares. At the Effective Time, by virtue of the
Merger and without any action on the part of Seller or Surviving Corporation or
any holder of any share of capital stock of Seller or Surviving Corporation:
(a) Each share of common stock of Seller, $.01 par value per share
("Seller Common Stock"), issued and outstanding immediately prior thereto
(except for shares as to which the holders thereof have asserted dissenters'
rights pursuant to Sections 302A.471 and 302A.473 of the MBCA and pursuant to
Section 1.4 below) shall be converted into, subject to Section 1.6(f), the right
to receive 1.125 (the "Conversion Ratio") shares of common stock of Surviving
Corporation, par value $.01 per share (the "Surviving Corporation Common
Stock").
(b) Each share of Surviving Corporation Common Stock and each share of
Surviving Corporation Preferred Stock issued and outstanding immediately prior
to the Effective Time shall (except for shares as to which the holders thereof
have asserted dissenters' rights pursuant to Sections 302A.471 and 302A.473 of
the MBCA and pursuant to Section 1.5 below) remain issued and outstanding and
unaffected by the Merger.
1.4 Seller Dissenters' Rights.
(a) Notwithstanding any provision of this Agreement to the
contrary, any shares of Seller Common Stock held by a holder who has
properly asserted dissenters' rights pursuant to Sections 302A.471 and
302A.473 of the MBCA with respect to such shares and who, as of the
Effective Time, has not effectively withdrawn or lost such rights shall
not be converted into or represent a right to receive shares of
Surviving Corporation Common Stock pursuant to Section 1.3(a), but the
holder thereof shall only be entitled to such rights as are granted by
the MBCA.
(b) Notwithstanding the provisions of subsection (a) of this
Section, if any holder of Seller Common Stock who asserts dissenters'
rights with respect to such Seller Common Stock under the MBCA
effectively withdraws or loses (through failure to perfect or
otherwise) such dissenters' rights then, as of the later of the
Effective Time or the occurrence of such event, such holder's Seller
Common Stock shall automatically be converted into and represent only
the right to receive the shares of Surviving Corporation Common Stock
as provided in Section 1.3(a), without interest thereon, upon surrender
of the certificate or certificates representing such Seller Common
Stock.
(c) Seller shall give Surviving Corporation (i) prompt notice
of any notice of intent to assert dissenters' rights with respect to
any Seller Common Stock, withdrawals of such notices, and any other
instruments served pursuant to the MBCA and received by Seller and (ii)
the opportunity to participate in all negotiations and proceedings with
respect to assertion of dissenters' rights with respect to Seller
Common Stock under the MBCA. Seller shall not, except with the prior
written consent of Surviving Corporation, voluntarily make any payment
with respect to any assertion of dissenters' rights with respect to
Seller Common Stock or offer to settle or settle any such demands.
1.5 Surviving Corporation Dissenters' Rights
(a) Notwithstanding any provision of this Agreement to the
contrary, any shares of Surviving Corporation Common Stock or Surviving
Corporation Preferred Stock held by a holder who has properly asserted
dissenters' rights pursuant to Sections 302A.471 and 302A.473 of the
MBCA with respect to such shares and not otherwise withdrawn or lost
such rights with respect thereto shall not represent shares of Common
Stock or Preferred Stock of the Surviving Corporation, but the holder
thereof shall only be entitled to such rights as are granted by the
MBCA.
(b) Surviving Corporation shall give Seller (i) prompt notice
of any notice of intent to assert dissenters' rights with respect to
any Surviving Corporation Common Stock, withdrawals of such notices,
and any other instruments served pursuant to the MBCA and received by
Surviving Corporation and (ii) the opportunity to participate in all
negotiations and proceedings with respect to assertion of dissenters'
rights with respect to Surviving Corporation Common Stock under the
MBCA. Surviving Corporation shall not, except with the prior written
consent of Seller, voluntarily make any payment with respect to any
assertion of dissenters' rights with respect to Surviving Corporation
Common Stock or offer to settle or settle any such demands.
1.6 Exchange of Seller Common Stock.
(a) At or prior to the Effective Time, Surviving Corporation
shall cause Surviving Corporation's stock transfer agent to act as
exchange agent (the "Exchange Agent") hereunder. As promptly as
practicable after the Effective Time, with respect to the shares of
Surviving Corporation Common Stock into which shares of Seller Common
Stock have been converted pursuant to Section 1.3(a), Surviving
Corporation shall deliver written instructions to the transfer agent
instructing such transfer agent to issue such shares of Surviving
Corporation Common Stock pursuant to the provisions of this Section
1.6. As promptly as practicable after the Effective Time, Surviving
Corporation shall cause the Exchange Agent to mail to each holder of
record of a certificate or certificates that immediately prior to the
Effective Time represented outstanding shares of Seller Common Stock
("Seller Certificates"), who has not previously delivered such Seller
Certificates to Surviving Corporation at the Closing, a form letter of
transmittal and instructions for such holder's use in effecting the
surrender of the Seller Certificates in exchange for certificates
representing shares of Surviving Corporation Common Stock and cash in
lieu of any fractional shares.
(b) As soon as practicable after the Effective Time, the
Exchange Agent shall distribute to holders of shares of Seller Common
Stock, upon surrender to the Exchange Agent of one or more Seller
Certificates for cancellation, together with a duly executed letter of
transmittal, (i) one or more certificates representing the number of
whole shares of Surviving Corporation Common Stock
into which the shares represented by the Seller Certificate(s) shall
have been converted pursuant to Section 1.3(a), (ii) a bank check in
the amount of cash into which the shares represented by the Seller
Certificate(s) shall have been converted pursuant to Section 1.6(f)
(relating to fractional shares), and (iii) any dividends or other
distributions to which such holder is entitled pursuant to Section
1.6(c), and the Seller Certificate(s) so surrendered shall be canceled.
In the event of a transfer of ownership of Seller Common Stock that is
not registered in the transfer records of Seller, it shall be a
condition to the issuance of shares of Surviving Corporation Common
Stock that the Seller Certificate(s) so surrendered shall be properly
endorsed or be otherwise in proper form for transfer and that such
transferee shall (i) pay to the Exchange Agent any transfer or other
taxes required or (ii) establish to the satisfaction of the Exchange
Agent that such tax has been paid or is not payable.
(c) Holders of Seller Common Stock will be entitled to any
dividends or other distributions pertaining to the Surviving
Corporation Common Stock received in exchange therefor that become
payable to persons who are holders of record of Surviving Corporation
Common Stock as of a record date that follows the Effective Time, but
only after they have surrendered their Seller Certificates for
exchange. Surviving Corporation shall deposit with the Exchange Agent
any such dividend or other distributions, and subject to the effect, if
any, of applicable law, the Exchange Agent shall receive, hold, and
remit any such dividends or other distributions to each such record
holder entitled thereto, without interest, at the time that such Seller
Certificates are surrendered to the Exchange Agent for exchange.
(d) All certificates evidencing shares of Surviving
Corporation Common Stock that are issued upon the surrender for
exchange of Seller Certificates in accordance with the terms hereof,
together with any cash paid for fractional shares pursuant to Section
1.6(f) hereof, shall be deemed to have been issued in full satisfaction
of all rights pertaining to the shares of Seller Common Stock
represented by the surrendered Seller Certificates. All certificates
evidencing shares of Surviving Corporation Common Stock that are issued
in accordance with the terms hereof shall bear the following legend:
"The securities represented by this certificate have not been
registered under the federal Securities Act of 1933, as
amended, or applicable state securities laws and may not be
sold, transferred, assigned, pledged, offered or otherwise
disposed in the absence of an effective registration statement
under applicable securities laws or an opinion of counsel
reasonably satisfactory to the issuer that such registration
is not required."
(e) After the Effective Time, there shall be no further
registration of transfers on the stock transfer books of the Surviving
Corporation of the shares of Seller Common Stock that were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Seller Certificates representing such shares are presented to the
Surviving Corporation, they shall be canceled and exchanged as provided
in this Article 1. As of the Effective Time, the holders of Seller
Certificates representing shares of Seller Common Stock shall cease to
have any rights as stockholders of Seller, except such rights, if any,
as they may have pursuant to the MBCA or this Plan of Merger. Except as
provided above, until such Seller Certificates are surrendered for
exchange, each such Seller Certificate shall, after the Effective Time,
represent for all purposes only the right to receive a certificate or
certificates evidencing the number of whole shares of Surviving
Corporation Common Stock into which the shares of Seller Common Stock
shall have been converted pursuant to the Merger as provided in Section
1.3(a) hereof, the right to receive the cash value of any fraction of a
share of Surviving Corporation Common Stock as provided in Section
1.6(f) hereof and the right to receive any dividends or distributions
as provided in Section 1.6(c).
(f) No fractional shares of Surviving Corporation Common Stock
and no certificates or scrip therefor, or other evidence of ownership
thereof, shall be issued in connection with the Merger, no dividend or
other distribution of Surviving Corporation shall relate to any
fractional share, and such fractional share interests shall not entitle
the owner thereof to vote or to any rights of a shareholder of
Surviving Corporation. All fractional shares of Surviving Corporation
Common Stock to which a holder of Seller Common Stock immediately prior
to the Effective Time would otherwise be entitled, at the Effective
Time, shall be aggregated if and to the extent multiple Seller
Certificates of such holder are submitted together to the Exchange
Agent. If a fractional share results from such aggregation, then (in
lieu of such fractional share) the Exchange Agent shall pay to each
holder of shares of Seller Common Stock who otherwise would be entitled
to receive such fractional share of Surviving Corporation Common Stock
an amount of cash (without interest) determined by multiplying (i) the
average of the closing "bid" and "ask" prices of a share of Surviving
Corporation Common Stock as reported by the Nasdaq OTC Bulletin Board
on the Closing Date (or if no prices are quoted for such Closing Date,
the most recent trading day preceding the Closing Date), by (ii) the
fractional share of Surviving Corporation Common Stock to which such
holder would otherwise be entitled. Surviving Corporation will make
available to the Exchange Agent any cash necessary for this purpose.
(g) In the event any Seller Certificates shall have been lost,
stolen, or destroyed, the Exchange Agent shall issue in respect of such
lost, stolen, or destroyed Seller Certificates, upon the holder thereof
making of an affidavit of such fact and agreeing to indemnify and hold
harmless Surviving Corporation from any costs and expenses of such lost
certificate later being presented for exchange, such shares of
Surviving Corporation Common Stock, cash for fractional shares, if any,
and dividends or other distributions, if any, as may be required
pursuant to this Article 1.
1.7 Stock Options and Warrants.
(a) Each option or warrant to purchase shares of Seller Common
Stock that is outstanding at the Effective Time, whether or not
exercisable and whether or not vested (a "Seller Option"), shall,
without any action on the part of Seller or the holder thereof, be
assumed by Surviving Corporation in such manner that Surviving
Corporation (i) is a corporation "assuming a stock option in a
transaction to which Section 424(a) applies" within the meaning of
Section 424 of the Code and the regulations thereunder, or (ii) to the
extent that Section 424 of the Code does not apply to any such Seller
Option, would be such a corporation if Section 424 of the Code were
applicable to such Seller Option. Surviving Corporation shall assume
Seller's 1996 Stock Option Plan (the "Seller Option Plan"). From and
after the Effective Time, all references to Seller in the Seller
Options shall be deemed to refer to the Surviving Corporation. The
Seller Options assumed by Surviving Corporation shall be exercisable
upon the same terms and conditions as under the Seller Options
(including provisions regarding vesting and the acceleration thereof)
except that (i) such Seller Options shall entitle the holder to
purchase from the Surviving Corporation the number of shares of
Surviving Corporation Common Stock (rounded down to the nearest whole
number of such shares) that equals the product of the Conversion Ratio
multiplied by the number of shares of Seller Common Stock subject to
such Seller Option immediately prior to the Effective Time, (ii) the
option exercise price per share of Surviving Corporation Common Stock
shall be an amount (rounded up to the nearest full cent) equal to the
exercise price per share of Seller Common Stock in effect immediately
prior to the Effective Time divided by the Conversion Ratio, and (iii)
the Seller Options shall vest to the extent required pursuant to the
current terms of such Seller Options. Except to the extent required
pursuant to the current terms of such Seller Options, Seller shall not
take any action to accelerate the vesting of any Seller Options.
(b) As promptly as practicable after the Effective Time, the
Surviving Corporation shall issue to each holder of a Seller Option a
written instrument informing such holder of the assumption by Surviving
Corporation of such Seller Option. Surviving Corporation shall take all
corporate action necessary to reserve for issuance a sufficient number
of shares of Surviving Corporation Common Stock for delivery upon
exercise of Seller Options pursuant to the terms set forth in this
Section 1.7. Surviving Corporation shall use its commercially
reasonable efforts to cause those Seller Options that qualified as
incentive stock options prior to the Effective Time to continue to
qualify as incentive stock options immediately after the Effective
Time. As promptly as practicable after the Surviving Corporation
becomes subject to the reporting obligations of Section 13 of the
Securities Exchange Act of 1934 (the "1934 Act"), Surviving Corporation
shall file a registration statement on Form S-8 (or any successor form)
with respect to the shares of Surviving Corporation Common Stock
subject to Seller Options issued under the Seller Option Plan and shall
use commercially reasonable efforts to maintain such registration
statement (or any successor form), including the current status of any
related prospectus or prospectuses, for so long as such Seller Options
remain outstanding.
1.8 Capitalization Changes. If at the Effective Time, the outstanding
shares of Surviving Corporation Common Stock or Seller Common Stock shall have
been changed into or exchanged in accordance with the terms of Sections 1.1 or
1.2, respectively, for a different number of shares or a different class by
reason of any reorganization, reclassification, subdivision, recapitalization,
split-up, combination, exchange of shares, stock dividend or other similar
transaction, the Conversion Ratio and calculations set forth in this Plan of
Merger shall be appropriately adjusted to reflect such reorganization,
reclassification, subdivision, recapitalization, split-up, combination, exchange
of shares, stock dividend or other similar transaction. This section shall not
constitute either party's consent to the other party effecting such
reorganization, reclassification, subdivision, recapitalization, split-up,
combination, exchange of shares, stock dividend or other similar transaction.
1.9 Articles of Incorporation of the Surviving Corporation. The
Articles of Incorporation of Surviving Corporation, as in effect immediately
prior to the Effective Time shall be amended as of the Effective Time to read as
set forth on Exhibit B, a copy of which is attached hereto.
1.10 Bylaws of the Surviving Corporation. The Bylaws of Surviving
Corporation, as in effect immediately prior to the Effective Time, shall be
amended as of the Effective Time to read as set forth on Exhibit C to
Reorganization Agreement, a copy of which is on file with the Surviving
Corporation and will be made available to shareholders of the Surviving
Corporation upon request.
1.11 Directors and Officers of the Surviving Corporation. As of the
Effective Time, the officers and directors of Surviving Corporation shall resign
and be replaced by such persons as are designated by Seller; provided that
Seller agrees to (i) designate an uneven number of members of the Surviving
Corporation's Board of Directors with a majority being outside directors, and
(ii) designate two members of the current Surviving Corporation Board of
Directors to serve as directors of the Surviving Corporation in accordance with
the MBCA and the Articles of Incorporation and Bylaws of the Surviving
Corporation.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of
January 14, 2000, between MINNESOTA AMERICAN, INC., a Minnesota corporation
which will change its name to "CorVu Corporation" ("MNAC"), and each of the
shareholders of CorVu (as defined below) who become a party hereto by executing
a signature page hereto (the "CorVu Shareholders").
WITNESSETH
WHEREAS, MNAC has entered into an Agreement and Plan of Reorganization
dated November 17, 1999 between MNAC and CorVu Corporation, a Minnesota
corporation ("CorVu"), with respect to the merger of CorVu with and into MNAC
(the "Merger"); and
WHEREAS, in the Merger each outstanding share of CorVu Common Stock
will be converted into the right to receive one and one-eighth (1.125) shares of
Common Stock, $.01 par value, of MNAC as the surviving corporation; and
WHEREAS, each CorVu Shareholder is the legal owner of the number of
issued and outstanding shares of CorVu Common Stock, $.01 par value, set forth
on such shareholder's signature page hereto; and
WHEREAS, MNAC's and CorVu's willingness and obligation to consummate
the Merger are subject to the condition that MNAC and the CorVu Shareholders
enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. The following terms used in this Agreement shall be
defined as follows:
"Agreement" means this Registration Rights Agreement.
"MNAC Common Stock" means the Common Stock, $.01 par value, of MNAC as
the surviving corporation of the Merger.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"CorVu Shareholder(s)" means those holders of CorVu Common Stock that
become parties to this Agreement by completing and signing the signature page
hereto.
"Merger" means the merger of CorVu with and into MNAC.
"Merger Shares" means the shares of MNAC Common Stock issued to the
CorVu Shareholders in the Merger.
"person" means an individual, partnership, corporation, estate or trust
or other entity.
"Registration Statement" means a registration statement filed by MNAC
with the SEC for a public offering and sale of securities of MNAC (other than a
registration statement on Form X-0, Xxxx X-0, any successor form thereto, or any
other form covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in Section 3.5.
"Registrable Shares" means (i) the Merger Shares, (ii) any shares of
MNAC Common Stock issued to CorVu Shareholders upon exercise of options or
warrants to purchase CorVu Common Stock which are assured by MNAC in the Merger
and exercised at a time when there is no Registration Statement in effect
covering such issuance, and (iii) any other shares of MNAC Common Stock issued
in respect of such shares in connection with any stock split, stock dividend,
reclassification, recapitalization, or similar event; provided, however, that
such shares shall cease to be Registrable Shares upon any sale thereof pursuant
to a Registration Statement or Rule 144 under the Securities Act.
"SEC" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Selling Holder" means as defined in Section 3.4(c).
ARTICLE 2
INVESTMENT INTENT
2.1 Knowledge of Reliance. The CorVu Shareholders acknowledge that
MNAC, in claiming exemption from applicable securities laws for the issuance of
the Merger Shares, is relying upon the statements and representations made
herein.
2.2 Domicile and Accredited Investor Status. Each CorVu Shareholder
represents that the information regarding such CorVu Shareholder set forth on
such CorVu Shareholder's signature page hereto is true and correct.
2.3 Investment Purpose in Acquiring the Merger Shares. Each of the
CorVu Shareholders is acquiring the Merger Shares for his/her/its own account
for investment purposes only and not with a view to their resale or
distribution. None of the CorVu Shareholders has any present intention to divide
its participation with others or to resell or otherwise dispose of all or any
part of the Merger Shares. In making these representations, the CorVu
Shareholders understand that the statutory exemptions from registration under
applicable securities laws being relied upon may not be available if,
notwithstanding its representations, such CorVu Shareholder has a present
intention of acquiring the Merger Shares for resale upon the occurrence or
nonoccurrence of some predetermined event.
2.4 Information About MNAC. Each of the CorVu Shareholders acknowledges
receipt of business information about MNAC, including a draft of MNAC's
Registration Statement on Form 10-SB to be filed with the SEC as soon as
practicable after the Merger or before the Merger but with the effectiveness
thereof delayed until after the Merger, and the Proxy Statement to MNAC
shareholders in connection with the MNAC Special Meeting at which the Merger was
approved. Each of the CorVu Shareholders further acknowledges that he/she/it has
discussed the business and affairs of MNAC with an officer of MNAC and has
received such information concerning MNAC as such CorVu Shareholder considers
necessary or advisable in order to form a decision concerning acquisition of the
Merger Shares.
2.5 Restriction on Transfer; Compliance with Securities Act. Each of
the CorVu Shareholders understands that the Merger Shares are not freely
transferable and that such CorVu Shareholder may in fact be prohibited from
selling the Merger Shares for an extended period of time. If any CorVu
Shareholder sells or distributes the Merger Shares in the future, he/she/it
shall sell or distribute them pursuant to the requirements of the Securities Act
and other applicable securities laws. The CorVu Shareholders will not transfer
any part of the Merger Shares without (i) effective registration under the
Securities Act and other applicable securities laws, or (ii) obtaining an
opinion of counsel satisfactory in form and substance to MNAC stating that the
proposed transaction, if effected without such registration, will not result in
a violation of the Securities Act and other applicable securities laws.
2.6 Restrictive Legend. MNAC may place a restrictive legend on all
certificates representing Merger Shares containing substantially the following
language:
"The securities represented by this certificate have not been
registered under the federal Securities Act of 1933, as amended, or
applicable state securities laws and may not be sold, transferred,
assigned, pledged, offered or otherwise disposed in the absence of an
effective registration statement under applicable securities laws or an
opinion of counsel reasonably satisfactory to the issuer that such
registration is not required."
The foregoing legend shall be removed from the certificates representing the
Merger Shares, at the request of the holder thereof, at such time as MNAC
receives an opinion of counsel satisfactory to MNAC that such Merger Shares are
no longer subject to the restrictions set forth in Article 2 hereof.
2.7 Stop Transfer Order. MNAC may place a stop transfer order with its
registrar and stock transfer agent covering all certificates representing Merger
Shares.
ARTICLE 3
REGISTRATION RIGHTS
3.1 Demand Registrations.
(a) At any time after the Closing of the Merger, a holder or holders of
an aggregate of at least 20% of the Registrable Shares may request, in writing,
that MNAC effect the registration of at least 20% of the Registrable Shares. If
the holder or holders initiating the registration intend to distribute the
Registrable Shares by means of an underwriting, they shall so advise MNAC in
their request. In the event such registration is underwritten, the holders of a
majority of the Registrable Shares requested to be registered shall be entitled
to select the managing underwriter of such offering, subject to MNAC's approval,
and the right of other holders of Registrable Shares to participate shall be
conditioned on such holders' participation in such underwriting. Upon receipt of
any such request, MNAC shall promptly give written notice of such proposed
registration to all holders of Registrable Shares. Such holders of Registrable
Shares shall have the right, by giving written notice to MNAC within 30 days
after MNAC provides its notice, to elect to have included in such registration
such of their Registrable Shares as such holders may request in such notice of
election, subject to the approval of the underwriter managing the offering as
provided below. Thereupon, MNAC shall, as expeditiously as possible, use its
best efforts to effect the registration of all Registrable Shares which MNAC has
been requested to so register. Notwithstanding any other provision of this
Section 3.1, if the managing underwriter advises the holders of Registrable
Shares initiating the registration in writing that the number of Registrable
Shares requested to be included in such registration exceeds the number which
can be sold without adversely affecting the marketability of the offering, then
the holders of Registrable Shares initiating the registration shall so advise
all holders of Registrable Shares which would otherwise be included in the
underwriting and the number of Registrable Shares that may be included in the
underwriting shall be allocated among all such holders of Registrable Shares,
including the holders of Registrable Shares initiating the registration, in
proportion (as nearly as practicable) to the amount of Registrable Shares owned
by each such holder. If the managing underwriter does not limit the number of
Registrable Shares to be underwritten, MNAC or other holders of securities of
MNAC who have registration rights similar to those set forth in Section 3.2
hereof may include Common Stock for their respective accounts in such
registration if the managing underwriter states that such inclusion would not
adversely affect the offering of Registrable Shares and if the number of
Registrable Shares which would otherwise have been included in such registration
and underwriting will not thereby be limited or reduced.
(b) MNAC shall not be required to effect more than two registrations
pursuant to paragraph (a) above. In addition, MNAC shall not be required to
effect any registration within six months after the effective date of any other
Registration Statement of MNAC.
(c) If at the time of any request to register Registrable Shares
pursuant to this Section 3.1, MNAC is engaged or has fixed plans to engage,
within 60 days of the time of the request, in a registered public offering as to
which the holders of Registrable Shares may include Registrable Shares pursuant
to Section 3.2 or in any other activity which, in the good faith determination
of MNAC's Board of Directors, would be materially adversely affected by the
requested registration then MNAC may at its option direct that such request be
delayed for a period not in excess of six months from the date of such request.
Such right to delay a request may not be exercised by MNAC more than once in any
12-month period.
3.2 "Piggy-back" Registration.
(a) Whenever MNAC proposes to file a Registration Statement (other than
pursuant to Section 3.1) at any time and from time to time, it will, prior to
such filing, give written notice to all holders of Registrable Shares of its
intention to do so and, upon the written request of a holder or holders of
Registrable Shares given within 20 days after MNAC provides such notice (which
request shall state the intended method of disposition of such Registrable
Shares), MNAC shall include all Registrable Shares which MNAC has been requested
by such holder or holders to register to be registered under the Securities Act
to the extent necessary to permit their sale or other disposition in accordance
with the intended methods of distribution specified in the request of such
holder or holders; provided that, MNAC shall have the right to postpone or
withdraw any registration effected pursuant to this Section 3.2 without
obligation to any holder of Registrable Shares; and further provided that,
during the first two years after the date of this Agreement, the Indemnifying
Shareholders shall not have a right to include any Registrable Shares in such
proposed Registration Statement.
(b) In connection with any offering under this Section 3.2 involving an
underwriting, MNAC shall not be required to include any Registrable Shares in
such underwriting unless the holders thereof accept the terms of the
underwriting as agreed upon between MNAC and the underwriters selected by it.
If, in the written opinion of the managing underwriter, the registration of all,
or part of, the Registrable Shares which the holders have requested to be
included in such registration exceed the number of shares which can be sold
without adversely affecting the marketability of the offering, then MNAC shall
be required to include in the underwriting only that number of Registrable
Shares equal to the greater of (i) [20%] of the number of shares to be sold by
MNAC in such offering, or (ii) the number of Registrable Shares which the
managing underwriter believes may, when added to the number of shares of Common
Stock which other holders entitled to include shares of Common Stock in such
registration have requested to be included therein, be sold without causing such
adverse effect. If the number of Registrable Shares to be included in the
underwriting in accordance with the foregoing is less than the total number of
shares which the holders of Registrable Shares have requested to be included,
then the holders of Registrable Shares who have requested registration and other
holders of shares of Common Stock entitled to include shares of Common Stock in
such registration shall participate in the underwriting pro rata based upon
their total ownership of shares of Common Stock of MNAC, and subject to the
right of holders of Registrable Shares to have included in such registration at
least 20% of the number of shares to be sold by MNAC in such offering. If any
holder would thus be entitled to include more shares than such holder requested
to be registered, the excess shall be allocated among other requesting holders
pro rata based upon their total ownership of Registrable Shares.
3.3 Form S-3 Registration. At any time at least one year after MNAC
becomes subject to the reporting requirements of the Exchange Act, a holder or
holders of an aggregate of at least 10% of the Registrable Shares issued to the
CorVu Shareholders may request, in writing, that MNAC effect the registration on
Form S-3 under the Securities Act (or any comparable or successor form) of at
least 50% of such holder's Registrable Shares. Upon receipt of any such request,
MNAC shall promptly give written notice of such proposed registration to all
CorVu Shareholders, who shall have the right, by giving written notice to MNAC
within 30 days after MNAC provides its notice, to elect to have included in such
registration such of their Registrable Shares as such holders may request in
such notice of election. Thereupon, MNAC shall, as expeditiously as possible,
use its best efforts to effect the registration of all Registrable Shares which
MNAC has been requested to so register. In addition, MNAC shall not be required
to effect any registration within 120 days after the effective date of any other
Registration Statement of MNAC. If at the time of any request to register
Registrable Shares pursuant to this Section 3.3, MNAC is engaged or has fixed
plans to engage, within 60 days of the time of the request, in a registered
public offering as to which the holders of Registrable Shares may include
Registrable Shares pursuant to Section 3.2 or in any other activity which, in
the good faith determination of MNAC's Board of Directors, would be materially
adversely affected by the requested registration then MNAC may at its option
direct that such request be delayed for a period not in excess of six months
from the date of such request.
3.4 Registration Procedures. If and whenever MNAC is required by the
provisions of this Agreement to use its best efforts to effect the registration
of any of the Registrable Shares under the Securities Act, MNAC shall:
(a) file with the SEC a Registration Statement with respect to such
Registrable Shares and use its best efforts to cause that Registration Statement
to become and remain effective;
(b) as expeditiously as possible prepare and file with the SEC any
amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective for a period of not less than 120 days (180
days for a registration under Section 3.3) from the effective date;
(c) as expeditiously as possible furnish to each holder of Registrable
Shares who is selling shares pursuant to such registration (a "Selling Holder")
such reasonable number of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as the Selling Holder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the Selling Holder;
(d) as expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration Statement under the
securities or Blue Sky laws of such states as the Selling Holders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the Selling Holders to consummate the public
sale or other disposition in such states of the Registrable Shares owned by the
Selling Holder; provided, however, that MNAC shall not be required in connection
with this paragraph (d) to qualify as a foreign corporation or execute a general
consent to service of process in any jurisdiction; and
(e) if MNAC has delivered preliminary or final prospectuses to the
Selling Holders and after having done so the prospectus is amended to comply
with the requirements of the Securities Act, promptly notify the Selling Holders
and, if requested, the Selling Holders shall immediately cease making offers of
Registrable Shares and return all prospectuses to MNAC. MNAC shall promptly
provide the Selling Holder with revised prospectuses and, following receipt of
the revised prospectuses, the Selling Holders shall be free to resume making
offers of the Registrable Shares.
3.5 Allocation of Expenses. MNAC will pay all of the Registration
Expenses of all registrations under Sections 3.1 and 3.2; provided, however,
that if a registration under Section 3.1 is withdrawn at the request of the
holders of Registrable Shares requesting such registration and if the requesting
holders elect not to have such registration counted as a registration requested
under Section 3.1, the requesting holders shall pay the Registration Expenses of
such registration pro rata in accordance with the number of their Registrable
Shares included in such registration. The Selling Holders will pay, pro rata
based on the number of Registrable Shares included in such offering, the first
$5,000 of Registration Expenses of the registrations under Section 3.3. For
purposes of this Section, the term "Registration Expenses" shall mean all
expenses incurred by MNAC in complying with this Agreement including, without
limitation, all registration and filing fees, exchange listing fees, printing
expenses, fees and disbursements of counsel for MNAC and the fees and expenses
of one counsel selected by the Selling Holders to represent the Selling Holders,
state Blue Sky fees and expenses, and the expense of any special audits incident
to or required by any such registration, but excluding the following expenses
which shall in all events be paid by the Selling Holders: underwriting discounts
and selling commissions with respect to such Selling Holders' shares, and the
fees and expenses of the Selling Holders' own counsel (other than the counsel
selected to represent all of the Selling Holders).
3.6 Indemnification. In the event of any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, MNAC
will indemnify and hold harmless the seller of such Registrable Shares, each
underwriter of such Registrable Shares, and each other person, if any, who
controls such seller or underwriter within the meaning of the Securities Act or
the Exchange Act against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may become
subject under the Securities Act, the Exchange Act, state securities or Blue Sky
laws or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement under which such Registrable Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration
Statement, or arise out of or are based upon the omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and MNAC will reimburse such seller,
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by such seller, underwriter or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that MNAC will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any untrue statement or omission made in such Registration
Statement, preliminary prospectus or prospectus, or any such amendment or
supplement, in reliance upon and in conformity with information furnished to
MNAC, in writing, by or on behalf of such seller, underwriter or controlling
person specifically for use in the preparation thereof.
In the event of any registration of any of the Registrable Shares under
the Securities Act pursuant to this Agreement, each seller of Registrable
Shares, severally and not jointly, will indemnify and hold harmless MNAC, each
of its directors and officers and each underwriter (if any) and each person, if
any, who controls MNAC or any such underwriter within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages or
liabilities, joint or several, to which MNAC, such directors and officers,
underwriter or controlling person may become subject under the Securities Act,
Exchange Act, state securities or Blue Sky laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein not misleading, if
the statement or omission was made in reliance upon and in conformity with
information furnished in writing to MNAC by or on behalf of such seller,
specifically for use in connection with the preparation of such Registration
Statement, prospectus, amendment or supplement; provided, however, that the
obligations of such seller of Registrable Shares hereunder shall be limited to
an amount equal to the net proceeds to each seller of Registrable Shares from
the sale of Registrable Shares as contemplated herein.
Each party entitled to indemnification under this Section 3.6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that, counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld). The Indemnified Party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall pay such expense
if representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party represented by such
counsel in such proceeding. No Indemnifying Party, in the defense of any such
claim or litigation shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect of such
claim or litigation, and no indemnified Party shall consent to entry of any
judgment or settle such claim or litigation without the prior written consent of
the Indemnifying Party.
3.7 Indemnification with Respect to Underwritten Offering. In the event
that Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 3.1(a), MNAC agrees to enter into an
underwriting agreement containing customary representations and warranties with
respect to the business and operations of an issuer of the securities being
registered and customary covenants and agreements to be performed by such
issuer, including without limitation customary provisions with respect to
indemnification by MNAC of the underwriters of such offering.
3.8 Information by Holder. Each holder of Registrable Shares included
in any registration shall furnish to MNAC such information regarding such holder
and the distribution proposed by such holder as MNAC may request in writing and
as shall be required in connection with any registration, qualification or
compliance referred to in this Agreement.
3.9 Rule 144 Requirements. MNAC shall use its best efforts to cause the
MNAC Common Stock to be registered under Section 12 of the Exchange Act as soon
as reasonably practicable after the date hereof, and thereafter, MNAC agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of MNAC under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) furnish to any holder of Registrable Shares upon request a written
statement by MNAC as to its compliance with the reporting requirements of said
Rule 144 (at any time after 90 days following the closing of the first sale of
securities by MNAC pursuant to a Registration Statement), and of the Securities
Act and the Exchange Act (at any time after it has become subject to such
reporting requirements), a copy of the most recent annual or quarterly report of
MNAC, and such other reports and documents of MNAC as such holder may reasonably
request to avail itself of any similar rule or regulation of the SEC allowing it
to sell any such securities without registration.
3.10 Transfers of Registration Rights.
Subject to Section 4.4, the rights granted to each holder of
Registrable Shares pursuant to Article 3 of this Agreement may be transferred by
such holder to another holder of Registrable Shares or to any person or entity
acquiring record ownership of at least [one thousand (1,000)] Registrable Shares
(such number being subject to adjustment for any stock dividend, stock split,
subdivision, combination or other recapitalization of the Common Stock of MNAC).
3.11 Additional Registration Rights. MNAC shall not grant registration
rights to any third party unless such registration rights are on a parity with,
or subordinate to, the rights of the holders of the Registrable Shares
hereunder.
ARTICLE 4
MISCELLANEOUS
4.1 Specific Performance. The parties hereto acknowledge that in the
event of any breach of the provisions of this Agreement, the nonbreaching party
would be irreparably harmed and could not be made whole by monetary damages. It
is accordingly agreed that, in addition to any other remedy to which a party may
be entitled at law or in equity, the obligations of the parties hereunder shall
be specifically enforceable and no party shall take any action to impede the
others from seeking to enforce such right of specific performance.
4.2 Severability. If the final determination of a court of competent
jurisdiction declares, after the expiration of the time within which judicial
review (if permitted) of such determination may be perfected, that any term of
provision hereof is invalid or unenforceable, (a) the remaining terms and
provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term
or provision shall be deemed replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision.
4.3 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given when delivered personally by commercial
courier service or otherwise, or by telecopier, or three days after such notice
is mailed by registered or certified mail (return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) If to an CorVu Shareholder, to such persons last address on file
with MNAC.
(b) If to MNAC, to:
CorVu Corporation (f/k/a Minnesota American, Inc.)
Attention: Xxxxx Xxxxxxx
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Fax No: 612/000-0000
with a copy to:
Xxxxxxxxxx & Xxxxx, P.A.
Attention: Xxxx X. Xxxxx, Esq.
1100 International Centre
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
4.4 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties to this Agreement and their successors or
assigns; provided that, none of the parties may assign its rights or obligations
hereunder without the prior written consent of the other party.
4.5 Headings. The descriptive headings of the several Articles and
Sections of this Agreement and of the several Schedules to this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
This Agreement shall be construed without regard to any presumption or other
rule requiring construction hereof against the party causing this Agreement to
be drafted.
4.6 Entire Agreement; Modification and Waiver. This Agreement
represents the only agreement among the parties concerning the subject matter
hereof and supersedes all prior agreements whether written or oral, relating
thereto. No purported amendment, modification or waiver of any provision hereof
shall be binding unless set forth in a written document signed by all parties
(in the case of amendments or modifications) or by the party to be charged
thereby (in the case of waivers). Any waiver shall be limited to the provision
hereof and the circumstance or event specifically made subject thereto and shall
not be deemed a waiver of any other term hereof or of the same circumstance or
event upon any recurrence thereof.
4.7 Publicity. Each of the parties represents and warrants to the other
party that it will make no announcement to public officials or the press in any
way relating to the transaction described herein without the prior written
consent of the other party, except as may be required of MNAC under the 1933 Act
and 1934 Act and under the rules of the Nasdaq National Market.
4.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the law of the State of Minnesota without regard to the
conflicts of laws rules thereof.
4.9 Benefit. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties or their respective
successors or assigns, any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
4.10 Survival. All of the representations, warranties, and
indemnifications made in this Agreement, and all terms and provisions hereof
intended to be observed and performed by the parties after the Closing or the
termination hereof, shall survive the Closing or such termination and continue
thereafter in full force and effect, subject to applicable statutes of
limitations.
4.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, the parties have duly executed this Registration
Rights Agreement, as of the day and year first written above.
MINNESOTA AMERICAN, INC.
By:
Xxxxxx XxXxxxx, Chairman and
Chief Executive Officer
(CorVu Shareholder Signature Pages attached)
CorVu Shareholder Signature Page
The undersigned shareholder of CorVu Corporation ("CorVu") hereby
becomes a party to the foregoing Registration Rights Agreement dated
__________________, 1999 between Minnesota American, Inc. ("MNAC") and certain
shareholders of CorVu. The undersigned represents and warrants to MNAC as
follows:
(a) The undersigned is a bona fide resident of (or if an entity is
organized or incorporated under the laws of, and is domiciled in),
_________________ [INSERT NAME OF STATE OR COUNTRY].
(b) [MUST CHECK EITHER (1) OR (2):]
(1) The undersigned is an "accredited investor" as
defined in Rule 501 of Regulation D under the
Securities Act.
(2) The undersigned is not an "accredited investor" as
defined in Rule 501 of Regulation D under the
Securities Act.
(c) [THIS SUBSECTION (c) APPLIES ONLY TO PERSONS WHO ARE NOT
"ACCREDITED INVESTORS"] The undersigned has made previous investments in
publicly-traded equity securities. The undersigned is experienced and
knowledgeable in financial and business matters and is capable of evaluating the
merits and risks of an investment in MNAC Common Stock, or alternatively, if the
undersigned is not an "accredited investor" so experienced and capable,
Shareholder has checked the box below:
[CHECK ONLY IF THE FOLLOWING SENTENCE IS APPLICABLE]
The undersigned is not an "accredited investor" and does not
have sufficient experience and knowledge in financial and
business matters or is otherwise incapable of evaluating the
merits and risks of an investment in MNAC Common Stock, and
therefore appoints and designates ___________________ [INSERT
NAME] as the undersigned's purchaser representative. [If this
sentence is checked, the undersigned agrees to ensure that
such designated person meets the definition of a "purchaser
representative" in Rule 501 of Regulation D under the
Securities Act.]
(d) The undersigned is the legal owner of ________ shares of CorVu
Common Stock.
IF AN INDIVIDUAL: IF AN ENTITY:
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Signature Signature
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Name (Typed or Printed) Name (Typed or Printed) and Title
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Signature of Joint Owner Name of Entity
(If held jointly)
------------------------------
Name (Typed or Printed)
ALL SHAREHOLDERS MUST COMPLETE:
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[Address]
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Business Telephone Number
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Fax Telephone Number
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Tax Identification or Social Security Number