EXHIBIT 10.6
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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
CERTAIN DEFINED TERMS. o 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 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 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).
The following terms have the meanings set forth in the section set forth
opposite such term:
TERM SECTION
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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
REPRESENTATIONS AND WARRANTIES OF COMVEST
ComVest represents and warrants to the Stockholders as follows:
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.
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.
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Each Stockholder severally, but not jointly, represents and warrants to
ComVest and each other Stockholder as follows:
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.
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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TRANSFER OF SHARES
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."
CERTAIN RESTRICTIONS ON SALE AND ENCUMBRANCE. ? 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.
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.
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 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.
TAG-ALONG RIGHTS. ? 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. If the Offer Price includes
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
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.
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"). 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.
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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.
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.
MISCELLANEOUS
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):
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.
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.
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.
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.
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 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.
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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.
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.
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.
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.
AMENDMENTS AND WAIVERS; ASSIGNMENT. ? 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.
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.
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.
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: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Partner
STOCKHOLDERS:
Address: /s/ Xxxxxx X. XxxXxxxxx
--------------------------------
(Xxxxxx X. XxxXxxxxx)
c/o CorVu Australasia Pty. Ltd.
Xxxxx 0, 000-000 Xxxxxxx Xxxxxxx
Xxxxxxxxx XXX 0000
Xxxxxxxxx
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