EXHIBIT 10
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated February
11, 2005, is entered into by and between CORVU CORPORATION, a Minnesota
corporation (the "Company") and COMVEST INVESTMENT PARTNERS II LLC, a Delaware
limited liability company ("ComVest"), as a material inducement for ComVest to
purchase (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 an aggregate purchase
price of $3,300,000, (iii) 17,000 of shares of convertible preferred stock, par
value $100 per share (the "Series C Preferred Stock"), (iv) warrants (the
"Preferred Warrant") to purchase 3,400,000 shares of Common Stock and (v)
warrants (the "Protective Warrant" and, together with the Preferred Warrant, the
"Warrants") to purchase 2,000,000 shares of Common Stock in accordance with the
terms of that certain Securities Purchase Agreement, dated on or about the date
hereof (the "Purchase Agreement"). All capitalized terms used but not defined
herein shall have the meanings ascribed thereto in the Purchase Agreement.
NOW, THEREFORE, the Company and ComVest hereby agree as follows:
1. Definitions. In addition to those terms defined elsewhere in this
Agreement, the following terms shall have the following meanings wherever used
in this Agreement:
"Act" shall mean the Securities Act of 1933, as amended, and
any successor statute from time to time.
"Costs and Expenses" shall mean all of the costs and expenses
relating to any subject Registration Statement, including but not limited to
registration, filing and qualification fees, reasonable blue sky expenses, costs
of listing any shares of Common Stock on any national securities exchange
automated quotation system, printing expenses, fees and disbursements of counsel
and accountants to the Company, and reasonable fees and disbursements of counsel
to ComVest (such fees and disbursements not to exceed $15,000 per Registration);
provided, however, that underwriting discounts and commissions attributable
solely to the securities registered for the benefit of ComVest, fees and
disbursements of any additional counsel to ComVest, and all other expenses
attributable solely to ComVest shall be borne by ComVest.
"Excluded Registration Statement" shall mean a registration
statement relating solely to the registration of the sale of securities (i)
other than for cash, (ii) to participants in a Company stock plan or employee
benefit plan, agreement or arrangement, and (iii) in a transaction covered by
Rule 145 under the Act or the resale of securities issued in such a transaction.
"Existing Registration Rights Agreements" shall mean
collectively (i) the registration rights granted to the selling shareholders set
forth in the Company's Form SB-2/A filed on Xxxxx 00, 0000, (xx) the
Registration Rights Agreement dated May 15, 2003 with
Strategic Growth International, Inc. and (iii) the registration rights
agreements entered into with the shareholders of the Company's Series B
Convertible Preferred Stock.
"Registrable Securities" shall mean all Warrant Registrable
Securities, the Conversion Shares and the Shares, held from time to time by
ComVest; provided, however, that such Registrable Securities shall cease to be
Registrable Securities at such time as all such Registrable Securities (i) are
sold pursuant to any registration statement filed by the Company with the SEC,
pursuant to Rule 144 promulgated under the Act or pursuant to any other
exemption from registration under the Act or (ii) may be sold, subject to any
applicable volume limitations, in open market transactions pursuant to any
applicable exemption from the registration requirements of the Act, including
without limitation Rule 144(k) promulgated thereunder (or any successor
thereto).
"Registration" shall mean any registration or proposed
registration of Registrable Securities pursuant to a Registration Statement in
respect to the sale of any Registrable Securities.
"Registration Period" shall mean the period (i) beginning upon
the earlier of declaration of effectiveness of the Registration Statements
provided for in Section 2 hereof or declaration of effectiveness of any
Registration Statement provided for in Section 3 hereof that includes
Registrable Securities and (ii) ending on the earlier of the date that all
Registrable Securities have ceased to be Registrable Securities and the second
anniversary of the date of this Agreement.
"Registration Statement" shall mean any registration statement
filed or to be filed by the Company with the SEC.
"SEC" shall mean the United States Securities and Exchange
Commission, or any successor agency or agencies performing the functions
thereof.
"Warrant Registrable Securities" shall mean the shares of
Common Stock issuable upon exercise of the Warrants or any shares issued in
exchange for or replacement thereof, from time to time.
2. Demand Registration. At any time after the date hereof, ComVest may
make one (1) written request to the Company for registration with the SEC under
and in accordance with the provisions of the Securities Act of the Registrable
Securities (the "Demand Registration"). The Demand Registration shall become
effective as soon as practicable, but in no event later than four (4) months
following receipt by the Company of written notice of such demand (the
"Effective Date"). Unless expressly agreed to by ComVest, no securities of the
Company or of any other Person other than Registrable Securities shall be
included in a Demand Registration except pursuant to the exercise of any
piggyback registration rights granted on or prior to the date hereof. Except as
otherwise provided herein, a registration will not count as a Demand
Registration until it has become effective and ComVest is legally permitted to
sell all of its Registrable Securities that are requested to be so included
unless ComVest fails to take such actions as are required on its part to cause
the registration to become effective, in which case such registration shall
count as a Demand Registration.
2
3. Piggyback Rights. (a) In addition to the foregoing and subject to
the provisions of this Agreement, in the event that the Company shall at any
time after the date hereof (and prior to the date of the Registration Statement
provided for in Section 2 hereof is declared effective by the SEC) propose to
file a Registration Statement (other than an Excluded Registration Statement),
then the Company shall give to ComVest written notice (the "Registration
Notice") of the proposed filing of such Registration Statement not less than
twenty (20) days prior to such filing, and shall, subject to the limitations
provided in this Section 3, include in such Registration Statement all or a
portion of the Registrable Securities owned by ComVest, as and to the extent
that ComVest may request same to be so included by means of written notice given
to the Company within twenty (20) days after the Company's giving of the
Registration Notice. ComVest shall be permitted to withdraw all or any part of
its Registrable Securities from a Registration Statement by written notice to
the Company given at any time prior to the effective date of the Registration
Statement. In the event of the inclusion of all or a portion of the Registrable
Securities pursuant to this Section 3, the Company shall bear all of the Costs
and Expenses of such registration; provided, however, that ComVest shall pay,
pro rata based upon the number of its Registrable Securities included therein,
the underwriters' discounts, commissions and compensation attributable solely to
the inclusion of such Registrable Securities in the overall public offering.
(b) Notwithstanding anything to the contrary contained herein, the
Company's obligation to include any Registrable Securities in a Registration
Statement filed under this Section 3 shall be subject to the following further
conditions:
(i) The distribution for the account of ComVest shall be
underwritten by the same underwriters (if any) who are underwriting the
distribution of the securities for the account of the Company and/or
any other persons whose securities are covered by such Registration
Statement, if any, and ComVest shall enter into an agreement with such
underwriters containing customary indemnification and other provisions;
(ii) If, in connection with an underwritten public offering
pursuant to a Registration Statement, the purchase agreement to be
entered into with the managing underwriters contains or requires
restrictions upon the sale of securities of the Company by any of the
Company, its officers, directors or other principal stockholders, other
than the securities which are to be included in the proposed
distribution, then such restrictions shall likewise be binding upon
ComVest, and if requested by the Company ComVest shall enter into a
written agreement to that effect; and
(iii) If, in connection with an underwritten public offering
pursuant to a Registration Statement, the managing underwriter(s)
thereof shall advise the Company in writing that the securities to be
included in such Registration will not include all of the Registrable
Securities requested to be so included (but which shall not refer to
any securities held by or to be newly issued by the Company), then the
Company will promptly furnish ComVest with a copy of such written
statement and may require, by written notice to ComVest accompanying
such written statement, that the distribution of all or a specified
portion of such Registrable Securities be excluded from such
distribution; and, in case of an exclusion of only a portion of the
Registrable Securities proposed to be included, the Registrable
Securities to be included shall (i) first be
3
allocated to the Company, (ii) then to the holders of registration
rights under the Existing Registration Rights Agreements in accordance
with the terms and conditions of such agreements, and (iii) then, to
ComVest in proportion to its Registrable Securities so requested to be
registered pursuant to such Registration Statement by ComVest (or in
such other proportions as ComVest may agree), prior to inclusion of any
other securities.
(c) ComVest shall furnish in writing to the Company all information
concerning it and its holdings of securities of the Company and its affiliates
as shall be required in connection with the preparation, filing, amendment and
supplementation of any Registration Statement covering any of ComVest's
Registrable Securities.
4. Blackout Periods. The Company may suspend ComVest's sale or transfer
of Registrable Securities under a Registration Statement if the Company shall
furnish to ComVest a certificate (the "Grace Period Notice") signed by the Chief
Executive Officer of the Company stating that in the good faith judgment of the
Board of Directors of the Company it would be seriously detrimental to the
Company or its stockholders for such sales or transfers not to be suspended (a
"Grace Period"); provided, however, that the Company shall not so suspend
ComVest unless it similarly suspends the sale or transfer of securities by any
other holder of securities of the Company whose securities are covered by the
same or another Registration Statement (expressly including holders of
securities under the Existing Registration Rights Agreements). In such event,
the Company's obligations under this Agreement to seek to have a Registration
Statement declared effective or kept effective shall be suspended for a Grace
Period not to exceed thirty (30) consecutive days during any ninety (90)-day
period; provided, however, that the Company may not exercise this right for more
than seventy-five (75) days in any one annual period (an "Allowable Grace
Period"); provided, further, however, that the Company may not exercise this
right unless it also suspends the effectiveness of any other Registration
Statement (expressly including the Existing Registration Statement or any other
Registration Statement of the Company with respect to the securities of the
Company covered by the Existing Registration Rights Agreements) for the same
amount of time. Subject to the similar suspension of all other holders of
securities of the Company whose securities are covered by the same or another
Registration Statement, ComVest agrees that, upon receipt of any notice from the
Company of a Grace Period Notice, ComVest (and its directors, officers, members
and Affiliates) shall immediately discontinue disposition of its Registrable
Securities pursuant to any Registration Statement(s) covering such Registrable
Securities until ComVest's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 4(e) hereof or receipt of notice from the
Company that no such supplement or amendment is required. During any Grace
Period during which the Registrable Securities are suspended from trading, then
no other Registration Statements shall be declared effective. Similarly, during
any Grace Period during which the effectiveness of any Registration Statement
covering the Registrable Securities is suspended, then trading under any other
Registration Statement shall be similarly suspended.
5. Registration Procedures. In the case of each Registration effected
by the Company in which Registrable Securities are to be sold for the account of
ComVest, the Company will use its good faith reasonable efforts to:
(a) furnish to counsel selected by ComVest copies of all Registration
Statements or prospectuses or any amendments or supplements thereto proposed to
be filed with the SEC,
4
which documents will be subject to review by such counsel before filing solely
with regard to any information contained therein which pertains to ComVest;
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective during the
Registration Period (or, with respect to Registration Statement filed in
accordance with Section 3 hereof, for such shorter or longer period covered
thereby) and to comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement during such
period;
(c) furnish to ComVest electronic copies of such Registration
Statement, each amendment and supplement thereto, the prospectus included in
such Registration Statement (including each preliminary prospectus) and such
other documents as ComVest may reasonably require in order to facilitate the
disposition of the Registrable Securities held by ComVest;
(d) register or qualify such Registrable Securities under such other
securities or blue sky laws of such states as may be reasonably required and do
any and all other acts and things which may be reasonably necessary or advisable
to enable ComVest to consummate the disposition of the Registrable Securities in
such jurisdictions (provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction, or (iii) consent to general service of
process in any such jurisdiction);
(e) notify ComVest, at any time when a prospectus relating to a
Registration Statement is required to be delivered under the Act, of the
happening of any event as a result of which the prospectus included in a
Registration Statement contains an untrue statement of a material fact or omits
to state any fact necessary to make the statements therein not materially
misleading, and prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchaser(s) of Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not materially
misleading; and
(f) effective not later than the effectiveness of the subject
Registration Statement, cause all subject Registrable Securities to be listed
for trading on each national securities exchange or automated quotation system
on which the Common Stock is then listed.
6. Indemnification by the Company.
(a) In the event that the Company has failed to use its reasonable best
efforts and has otherwise failed to act in good faith to effect the registration
of the Registrable Securities in accordance with Section 2 hereof and the SEC
has failed to declare effective any such Registration Statement by the Effective
Date, then the Company shall pay ComVest a cash payment in the aggregate amount
of One Thousand Dollars ($1,000) for each day after the Effective Date during
which such Registration Statement has not been declared effective by the SEC.
Such payment shall be due on the earlier of (i) three (3) days following the
date on which such Registration Statement is declared effective or (ii) the last
day of any calendar month during which such delay is or continues to be
incurred. In the event the Company otherwise materially
5
breaches or materially fails to perform, as applicable, any representation,
warranty or covenant contained in this Agreement, the Company shall indemnify
ComVest from and against any expenses, claims, losses, costs, charges or
liabilities of any kind, including amounts paid in settlement and reasonable
attorneys' fees (collectively, the "Losses"), which may be incurred by ComVest
as a result of any such failure or breach, with such indemnification to be made
within thirty (30) days of receipt of written request therefor.
(b) The Company shall indemnify and hold harmless ComVest, each of its
directors, legal counsel and accountants for ComVest, and any underwriter (as
defined in the Act) for any Losses to which ComVest or any other such
indemnified person becomes subject, under the Act or any rule or regulation
thereunder, insofar as such Losses (i) are caused by any untrue statement or
alleged untrue statement of any material fact contained in any preliminary
prospectus (if used prior to the Effective Date of the Registration Statement),
or contained, on the Effective Date thereof, in any Registration Statement of
which Registrable Securities were the subject, the prospectus contained therein,
any amendment or supplement thereto, or (ii) arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(iii) arise out of any violation by the Company of the Act or any rule or
regulation thereunder applicable to the Company and relating to actions or
omissions otherwise required of the Company in connection with such Registration
Statement. The Company shall reimburse ComVest and any such other indemnified
person for any legal or other expenses reasonably incurred by ComVest or such
other indemnified person in connection with investigating, defending or settling
any such Loss; provided, however, that the Company shall not be liable to any
such Persons in any such case to the extent that any such Loss arises out of or
is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with information
furnished to the Company in writing by such person expressly for inclusion in
any of the foregoing documents. This indemnity shall not apply to amounts paid
in settlement of any such Loss if such settlement is effected without the
consent of the Company.
7. Indemnification by ComVest. ComVest shall indemnify and hold
harmless the Company, each of its directors, each of its officers who has signed
a Registration Statement, legal counsel and accountants for the Company, each
person (if any) who controls the Company within the meaning of the Act and any
underwriter (as defined in the Act) for the Company, against any Losses to which
the Company or any other such indemnified person may become subject under the
Act or any rule or regulation thereunder or otherwise to the extent that such
Losses (or related actions) (i) are caused solely by any untrue statement or
alleged untrue statement of any material fact contained in any preliminary
prospectus (if used prior to the effective date of the Registration Statement),
or contained, on the Effective Date thereof, in any Registration Statement of
which such ComVest's Registrable Securities were the subject, the prospectus
contained therein, any amendment or supplement thereto, or (ii) arise out of or
are based solely upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information furnished
to the Company by ComVest, in writing, expressly for inclusion in any of the
foregoing documents; provided, however, that the aggregate liability of ComVest
shall not be greater than the net proceeds received by ComVest upon the sale of
the Registrable Securities giving rise to such
6
indemnification obligation. This indemnity shall not apply to amounts paid in
settlement of any such Loss or related Action if such settlement is effected
without the consent of ComVest.
8. Additional Provisions.
(a) ComVest and each other person indemnified pursuant to Section 6
above shall, in the event that it receives notice of the commencement of any
Action against it which is based upon an alleged act or omission which, if
proven, would result in the Company's having to indemnify it pursuant to Section
6 above, promptly notify the Company, in writing, of the commencement of such
Action and permit the Company, if the Company so notifies ComVest or other
indemnified person within thirty (30) days after receipt by the Company of
notice of the commencement of the Action, to assume the defense of such Action
with counsel reasonably satisfactory to ComVest; provided, however, that ComVest
or other indemnified person shall be entitled to retain its own counsel at its
own expense. The omission to notify the Company promptly of the commencement of
any such Action shall not relieve the Company of any liability to indemnify
ComVest or such other indemnified person, as the case may be, under Section 6
above, from and after the Company's receipt of such notice, except to the extent
that the Company shall suffer any Losses by reason of such failure to give
notice, and shall not relieve the Company of any other liabilities which it may
have under this or any other agreement.
(b) The Company and each other person indemnified pursuant to Section 7
above shall, in the event that it receives notice of the commencement of any
Action against it which is based upon an alleged act or omission which, if
proven, would result in any Holder having to indemnify it pursuant to Section 7
above, promptly notify ComVest or other indemnified person, in writing, of the
commencement of such Action and permit ComVest, if ComVest so notifies the
Company within thirty (30) days after receipt by ComVest of notice of the
commencement of the Action, to assume the defense of such Action with counsel
reasonably satisfactory to the Company; provided, however, that the Company or
other indemnified person shall be entitled to retain its own counsel at the
Company's expense. The omission to notify any Holder promptly of the
commencement of any such Action shall not relieve ComVest of liability to
indemnify the Company or such other indemnified person, as the case may be,
under Section 6 above, from and after ComVest's receipt of such notice, except
to the extent that the subject Holder shall suffer any Losses by reason of such
failure to give notice, and shall not relieve ComVest of any other liabilities
which it may have under this or any other agreement.
(c) No indemnifying party, in the defense of any such Action, shall,
except with the consent of each indemnified party, consent to entry of any
judgment or enter into any settlement that 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 to such Action. Each indemnified
party shall furnish such information regarding itself or the Action in question
as an indemnifying party may reasonably request in writing and as shall be
reasonably required in connection with defense of such Action resulting
therefrom.
(d) If a court of competent jurisdiction determines that the foregoing
indemnity provided under Sections 6 and 7 above is unavailable, or is
insufficient to hold harmless an indemnified party, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such Losses (A) in such proportion as is appropriate to reflect the
7
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other, or (B) if the allocation provided by clause (A)
above is not permitted by applicable law, or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in such proportion as
is appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, but
also the relative fault of the indemnifying party and the indemnified party, as
well as any other relevant equitable considerations. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
9. Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be given in accordance with
Section 5.4 of the Purchase Agreement.
10. Waiver and Amendment. No waiver, amendment or modification of this
Agreement or of any provision hereof shall be valid unless evidenced by a
writing duly executed by the Company and ComVest. No waiver of any default
hereunder shall be deemed a waiver of any other, prior or subsequent default
hereunder.
11. Governing Law. This Agreement shall be governed by, construed under
and interpreted and enforced in accordance with the laws of the State of New
York, without giving effect to principles of choice of law. Any Action arising
out of or relating to this Agreement shall be commenced in a federal or state
court having competent jurisdiction in the State of New York, and for the
purpose of any such Action, each of the parties and any assignees thereof
submits to the personal jurisdiction of the State of New York. The parties
hereby irrevocably consent to the exclusive personal jurisdiction of any state
or federal court for New York County in the State of New York or the Southern
District of New York. The parties hereby waive any objection to venue and any
objection based on a more convenient form in any Action instituted under this
Agreement.
12. Captions. The captions and Section headings used in this Agreement
are for convenience only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions hereof.
13. Entire Agreement. This Agreement constitutes the sole and entire
agreement and understanding between the parties hereto as to the subject matter
hereof, and supersedes all prior discussions, agreements and understandings of
every kind and nature between them as to such subject matter.
14. No Third Party Beneficiaries. Except as expressly provided herein,
this Agreement is not intended to confer upon any person any rights or remedies
hereunder.
15. Successors and Assigns. The Company may not sell, assign, transfer
or otherwise convey any of its rights or delegate any of its duties under this
Agreement, except to a corporation which has succeeded to substantially all of
the business and assets of the Company and has assumed in writing its
obligations under this Agreement, and this Agreement shall be binding on the
Company and such successor. This Agreement shall be binding upon and inure to
8
the benefit of and be enforceable by ComVest and its successors and assigns.
Without limiting the generality of the foregoing, any transferee of Registrable
Securities shall have the rights set forth in this Agreement, and such rights
shall be enforceable against the Company by such transferees as third-party
beneficiaries.
16. Execution. This Agreement may be executed in two (2) or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
17. Term. This Agreement shall terminate upon the expiration of the
Registration Period; provided, however, that the parties' rights and obligations
under Sections 6 and 7 shall survive any termination of this Agreement.
9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
11th day of February 2005.
CORVU CORPORATION
By:
-----------------------------------------
Name:
Title:
COMVEST INVESTMENT PARTNERS II
LLC
By:
-----------------------------------------
Name:
Title:
10
