UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
Chyron Corporation
(Name of Issuer)
Common Stock, $.01 par value
(Title of Class of Securities)
171605108
(CUSIP Number)
Dennis J. Friedman, Esq.
Chadbourne & Parke
30 Rockefeller Plaza
New York, NY 10012
(212) 408-5100
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
July 25, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|
Check the following box if a fee is being paid with the statement |X|. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 2 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WPG Corporate Development Associates IV, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 20,060,755 shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
17,770,615 shares
PERSON
10 SHARED DISPOSITIVE POWER
WITH
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
20,060,755 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
22.9%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 3 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WPG Corporate Development Associates IV (Overseas), L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF 7 SOLE VOTING POWER
SHARES 4,873,540 shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
4,285,120 shares
PERSON
10 SHARED DISPOSITIVE POWER
WITH
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,837,540 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 4 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WPG Enterprise Fund II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 4,984,717 shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
4,415,557 shares
PERSON
10 SHARED DISPOSITIVE POWER
WITH
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,984,717 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.7%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 5 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Weiss, Peck & Greer Venture Associates III, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 4,144,585 shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
3,671,545 shares
PERSON
10 SHARED DISPOSITIVE POWER
WITH
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,144,585 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.7%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 6 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WPG Private Equity Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 20,060,755 shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
17,770,615 shares
PERSON
10 SHARED DISPOSITIVE POWER
WITH
-0-
11 AGGREGATE AMOUNT BENEtFICIALLY OWNED BY EACH REPORTING PERSON
20,060,755 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
22.9%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 7 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WPG CDA IV (Overseas), Ltd.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 4,837,540 shares
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON
10 SHARED DISPOSITIVE POWER
WITH
4,285,120 shares
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,837,540 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 8 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WPG Private Equity Partners (Overseas), L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 4,837,540 shares
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON
10 SHARED DISPOSITIVE POWER
WITH
4,285,120 shares
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,837,540 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 9 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WPG Venture Partners III, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 9,129,302 shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
8,087,102 shares
PERSON
10 SHARED DISPOSITIVE POWER
WITH
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,129,302 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.4%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 10 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Steven N. Hutchinson
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 24,898,295 shares
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON
10 SHARED DISPOSITIVE POWER
WITH
22,055,735 shares
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
24,898,295 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.4%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 11 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Wesley W. Lang, Jr.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 24,898,295 shares
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON
10 SHARED DISPOSITIVE POWER
WITH
22,055,735 shares
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
24,898,295 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
28.4%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 12 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Philip Greer
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 13,966,842 shares
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON
10 SHARED DISPOSITIVE POWER
WITH
12,372,222 shares
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,966,842 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.9%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 13 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Gill Cogan
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 9,129,302 shares
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON
10 SHARED DISPOSITIVE POWER
WITH
8,087,102 shares
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
9,129,302 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.4%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 14 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Westpool Investment Trust plc
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United Kingdom
NUMBER OF 7 SOLE VOTING POWER
SHARES 7,884,491 shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
6,984,311 shares
PERSON
10 SHARED DISPOSITIVE POWER
WITH
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,884,491 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.0%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 15 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Lion Investments Limited
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United Kingdom
NUMBER OF 7 SOLE VOTING POWER
SHARES 3,734,426 shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
3,308,366 shares
PERSON
10 SHARED DISPOSITIVE POWER
WITH
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,734,426 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.3%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 16 of 29 Pages
---- ------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Charles M. Diker
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF 7 SOLE VOTING POWER
SHARES 1,659,922 shares
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
1,470,382 shares
PERSON
10 SHARED DISPOSITIVE POWER
WITH
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,659,922 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.9%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE,
RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF
THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 17 of 29 Pages
---- ------
Item 1. Security and Issuer.
The title of the class of equity securities to which this Statement
relates is the Common Stock, $.01 par value per share (the "Common Stock"), of
Chyron Corporation (the "Issuer"). The principal executive offices of the Issuer
are located at 5 Hub Drive, Melville, New York 11747.
Item 2. Identity and Background.
This Statement is being filed on behalf of WPG Corporate Development
Associates IV, L.P., a Delaware limited partnership ("CDA"), WPG Corporate
Development Associates, IV (Overseas), L.P., a Cayman Islands exempted limited
partnership ("CDAO"), WPG Enterprise Fund II, L.P., a Delaware limited
partnership ("WPGEF"), Weiss, Peck & Greer Venture Associates III, L.P., a
Delaware limited partnership ("WPGVA"), WPG Private Equity Partners, L.P., a
Delaware limited partnership ("WPGPEP"), WPG CDA IV (Overseas), Ltd., a limited
company organized under the laws of the Cayman Islands ("Overseas"), WPG Private
Equity Partners (Overseas), L.P., a Delaware limited partnership ("WPGPEPO"),
WPG Ventures Partners III, L.P., a Delaware limited partnership ("WPGVP"),
Steven N. Hutchinson ("Hutchinson"), Wesley W. Lang, Jr. ("Lang"), Philip Greer
("Greer"), Gill Cogan ("Cogan"), Westpool Investment Trust plc, a public limited
company organized under the laws of England ("WIT"), Lion Investments Limited, a
private limited company organized under the laws of England ("Lion"), and
Charles M. Diker ("Diker", and together with CDA, CDAO, WPGEF, WPGVA, WPGPEP,
Overseas, WPGPEPO, WPGVP, Hutchinson, Lang, Greer, Cogan, WIT and Lion, are
collectively referred to hereinafter as the "Reporting Persons" and individually
as a "Reporting Person"). CDA, CDAO, WPGEF, WPGVA, WIT, Lion and Diker are
collectively referred to hereinafter as the "WP Group"
Information with respect to each of the Reporting Persons is set forth
below. Each of the Reporting Persons is responsible for the completeness and
accuracy of the information concerning such Reporting Person. No Reporting
Person is responsible for the completeness of or accuracy of the information
concerning any of the other Reporting Persons.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 18 of 29 Pages
---- ------
CDA and CDAO.
The principal office of CDA and CDAO is located at c/o Weiss, Peck &
Greer Private Equity Group, One New York Plaza, New York, NY 10004-1950. CDA and
CDAO are investment partnerships that are associated with Weiss, Peck & Greer,
L.L.C. ("Weiss, Peck"). The general partner of CDA is WPGPEP. The general
partners of CDAO are Overseas and WPGPEPO.
WPGEF and WPGVA.
The principal office of WPGEF and WPGVA is located at 555 California
Street, Suite 4760, San Francisco, CA 94104. WPGEF and WPGVA are investment
partnerships associated with Weiss, Peck. The general partner of WPGEF and WPGVA
is WPGVP.
WPGPEP.
The principal office of WPGPEP is located at c/o Weiss, Peck & Greer
Private Equity Group, One New York Plaza, New York, New York 10004-1950. WPGPEP
serves as the general partner of CDA. The general partners of WPGPEP are
Hutchinson (co-managing partner), Lang (co-managing partner), Craig Whiting,
Peter Pfister, Greer and Nora Kerppola, all of whom are citizens of the United
States, except that Ms. Kerppola is a citizen of Finland, and have offices
located at One New York Plaza, New York, New York 10004-1950. Messrs.
Hutchinson, Lang, Pfister and Greer are principals of Weiss, Peck and Mr.
Whiting and Ms. Kerppola are employees of Weiss, Peck.
Overseas and WPGPEPO.
The principal office of Overseas is located at c/o BankAmerica Trust
and Banking Corp., P.O. Box 1092, Georgetown, Grand Cayman Island, Cayman
Islands, British West Indies. The principal office of WPGPEPO is located at c/o
Weiss, Peck & Greer Private Equity Group, One New York Plaza, New York, New York
10004-1950. Overseas and WPGPEPO serve as the general partners of CDAO. The
directors of Overseas are Messrs. Hutchinson, Greer, Lang and Robin Jarvis. Mr.
Jarvis is a citizen of the United Kingdom, an employee of BankAmerica Trust and
Banking Corporation (Cayman) Limited and has offices located at BankAmerica
House, Fort Street, Georgetown, Grand Cayman Island, Cayman Islands, British
West Indies. The general partners of WPGPEPO are the same individuals that serve
as general partners of WPGPEP.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 19 of 29 Pages
---- ------
WPGVP.
The principal office of WPGVP is located at 555 California Street,
Suite 4750, San Francisco, CA 94104. WPGVP serves as the general partner of
WPGEF and WPGVA. The general partners of WPGVP are Greer (co-managing partner),
Cogan (co-managing partner), Annette Bianchi, Philip Black, Ellen Feeney,
Christopher J. Schaepe and Barry Schiffman. Cogan, Bianchi, Black, Feeney,
Schaepe and Schiffman are citizens of the United States and have offices located
at 555 California Street, Suite 4750, San Francisco, CA 94104. Mr. Greer is a
senior managing principal of Weiss, Peck, Cogan, Bianchi and Feeney are
principals of Weiss, Peck and Black, Schaepe and Schiffman are employees of
Weiss, Peck.
Hutchinson and Lang.
As described above, Messrs. Hutchinson and Lang are co-managing
partners of WPGEP and WPGEPO and directors of Overseas.
Greer and Cogan.
As described above, Messrs. Greer and Cogan are co-managing partners
of WPGVP. Mr. Greer is also a director of Overseas.
WIT and Lion.
The principal office of WIT and Lion is located at Carlton House, 33
Robert Adam Street, London W1M 5AH. WIT and Lion are investment holding
companies.
The directors and executive officers of WIT and Lion and their
respective business addresses and present principal occupations are set forth
below:
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 20 of 29 Pages
---- ------
Directors Address Occupation
Lord Rayne 33 Robert Adam Street Director, WIT and Lion
London, UK W1M 5AH
Robert Rayne 33 Robert Adam Street Director, WIT and Lion
London, UK W1M 5AH
Lord Remnant 33 Robert Adam Street Chartered Accountant,
London, UK W1M 5AH WIT
Robert Spier 33 Robert Adam Street Chartered Accountant,
London, UK W1M 5AH WIT and Lion
Michael Waldron 33 Robert Adam Street Certified Accountant,
London, UK W1M 5AH WIT*
- ---------------
* Mr. Waldron also serves as Secretary of WIT and Lion.
All of the above persons are citizens of the United Kingdom.
Diker.
Charles M. Diker is a non-managing principal of Weiss, Peck and is
engaged in investment activities. Mr. Diker has a business address located at
One New York Plaza, New York, NY 10004-1950. Mr. Diker is a citizen of the
United States.
During the last five years, none of the Reporting Persons named in
this Item 2 has been convicted in any criminal proceeding (excluding traffic
violations or similar misdemeanors), and none of the Reporting Persons named in
this Item 2 has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction resulting in its or his being
subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws, or finding any violations with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
All funds used to purchase the securities reported in Item 4 below
were provided from the working capital of the WP Group, except that Charles M.
Diker contributed his
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 21 of 29 Pages
---- ------
own personal funds. The aggregate purchase price of such securities was
approximately $13,952,635.00, excluding the Installment Shares (as defined
below) attributable to each of the Reporting Persons and certain shares of
Common Stock subject to a right of first refusal.
Item 4. Purpose of Transaction.
On July 25, 1995, the WP Group entered into an assignment and
assumption agreement (the "Assignment Agreement") with such other entities as
set forth in the Assignment Agreement (such entities, together with the WP Group
, are collectively referred to hereinafter as the "Assignees") and CC
Acquisition Company A, L.L.C., a Delaware limited liability Company ("CCACA")
and CC Acquisition Company B, L.L.C., a Delaware limited liability Company
("CCACB", and together with CCACA, are collectively referred to hereinafter as
the "Assignors"). Pursuant to the Assignment Agreement, (i) CCACA assigned to
the Assignees its rights under the stock purchase agreement, dated May 26, 1995
(the "Pesa Agreement"), by and among CCACA, CCACB and Pesa, Inc. ("Pesa") to
acquire 20,000,000 shares of Common Stock from Pesa, (ii) CCACA assigned to the
Assignees its rights under the stock purchase agreement, dated May 26, 1995 (the
"Sepa Agreement"), by and among CCACA, Sepa Technologies, Ltd., Co. ("Sepa"),
and John A. Servizio, ("Servizio") to acquire 5,000,000 shares of Common Stock
from Sepa and Servizio, (iii) CCACA assigned to the WP Group its rights of first
refusal under the Sepa Agreement and the agreement, dated July 25, 1995, between
CCACA and Albert O.P. Leubert Ltd., a New York Corporation, to acquire 5,400,000
shares of Common Stock (the "Right of First Refusal Shares") and (iv) CCACB
assigned to the Assignees its rights under the Pesa Agreement to acquire
17,648,839 shares of Common Stock from Pesa.
The closing of the transactions contemplated by the Pesa Agreement,
the Sepa Agreement and the Assignment Agreement occurred on July 25, 1995 (the
"Closing"). Immediately following the Closing (i) the Board of Directors of the
Issuer (the "Board") approved a resolution increasing the size of the Board from
seven members to nine members; (ii) Adolfo Nunez Astray, Alfred O.P. Leubert,
Miguel S. Moraga and John A. Servizio resigned as directors of the Issuer and
members of committees of the Board; and (iii) Steven N. Hutchinson, Wesley W.
Lang, Eugene M. Weber, Alan J. Hirschfield, and Sheldon D. Camhy were appointed
by
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 22 of 29 Pages
---- ------
the existing members of the Board as new directors. Messrs. Hutchinson and Lang
are co-managing partners of WPGPEP and WPGPEPO and directors of Overseas.
In connection with the Closing, the Assignees entered into an escrow
agreement (the "Escrow Agreement") with Sepa, CCACA, CCACB and First Union
National Bank of North Carolina, a national banking association ("First Union"),
as escrow agent, with respect to 29,414,732 shares of Common Stock (the
"Installment Shares"). The WP Group has the power to vote the following portion
of the Installment Shares, all of which Shares are deposited in escrow: (i) CDA
- - 7,353,793 shares; (ii) CDAO - 1,773,258 shares; (iii) WPGEF - 1,827,235
shares; (iv) WPGVA - 1,519,350; (v) WIT - 2,890,231 shares; (vi) Lion -
1,369,060 shares and (vii) Charles M. Diker - 608,470 shares. Under the terms of
the Assignment Agreement and the Sepa Agreement, such shares are to be released
from escrow to the WP Group upon the making of certain payments by the WP Group
to Sepa. If any of the Installment Shares are not paid for, such Shares shall be
forfeited.
On July 25, 1995 the WP Group entered into a stockholders' agreement
(the "Stockholders' Agreement") with CCACA and CCACB pursuant to which, the
parties agreed, among other things, (i) that the Board would be constituted to
have nine members; (ii) that until such date as CCACA and CCACB collectively
cease to beneficially own 8% of the issued and outstanding shares of Common
Stock, they shall have the right to nominate three members to the Board (the
"CCAC Directors"); (iii) that until such date as the Reporting Persons cease to
beneficially own 8% of the issued and outstanding shares of Common Stock, CDA,
CDAO, WPGEF, and WPGVA (collectively the "WPG Participants") have the right to
nominate one member to the Board, WIT and Lion (collectively "WIT\Lion") have
the right to nominate one member to the Board, and the WPG Participants and
WIT/Lion shall together have the right to nominate one member to the Board; (iv)
that they would agree on who should serve as the three other directors of the
Board; and (v) to vote or cause to be voted all of the shares of Common Stock of
which such party is the beneficial owner in favor of the actions contemplated by
(i), (ii), and (iii) above. The Reporting Persons disclaim any beneficial
ownership of shares of Common Stock attributable to the Assignors.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 23 of 29 Pages
---- ------
In connection with the aforementioned, transactions, the Issuer
entered into a Registration Agreement (the "Registration Rights Agreement") with
the Assignees, CCACA and CCACB, dated as of July 25, 1995, pursuant to which the
Assignees have, under certain circumstances, demand and incidental (piggyback)
registration rights with respect to 64,414,732 shares of Common Stock.
Copies of the Assignment Agreement, the Shareholders Agreement,
Registration Rights Agreement, and the Escrow Agreement are filed herewith under
Item 7 as Exhibits C, D, E, and F respectively, and are deemed incorporated in
their entirety by reference hereto.
The securities purchased by the WP Group were purchased solely for
investment purposes. Each Reporting Person expects that it will, from time to
time, review its investment position in the Issuer and may, depending on market
and other conditions, increase or decrease such investment position.
Each Reporting Person does not have any plans or proposals with
respect to any extraordinary corporate transaction involving the Issuer or any
sale of its assets or any change in the Board, management, capitalization,
dividend policy, charter or by-laws, or any other change in its business or
corporate structure or with respect to the delisting or deregistration of any of
its securities including, without limitation, those matters described in Item 6
of Schedule 13D.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 24 of 29 Pages
---- ------
Item 5. Interest in Securities of the Issuer.
(a) and (b)
Beneficial Ownership
<TABLE>
<S> <C> <C> <C> <C> <C>
Shared
Voting Sole Shared
Percentage Sole Voting Power Dispositive Dispositive
Entity of Class* Power (shares) (shares) Power (shares) Power (shares)
CDA 22.9% 20,060,755 - 17,770,615 -
CDAO 5.5% 4,837,540 - 4,285,120 -
WPGEF 5.7% 4,984,717 - 4,415,557 -
WPGVA 4.7% 4,144,585 - 3,671,545 -
WPGPEP 22.9% 20,060,755 - 17,770,615 -
Overseas 5.5% - 4,837,540 - 4,285,120
WPGPEPO 5.5% - 4,837,540 - 4,285,120
WPGVP 10.4% 9,129,302 - 8,087,102 -
Hutchinson 28.4% - 24,898,295 - 22,055,735
Lang 28.4% - 24,898,295 - 22,055,735
Greer 15.9% - 13,966,842 - 12,372,222
Cogan 10.4% - 9,129,302 - 8,087,102
Westpool 9.0% 7,884,491 - 6,984,311 -
Lion 4.3% 3,734,426 - 3,308,366 -
Diker 1.9% 1,659,922 - 1,470,382 -
</TABLE>
* The Issuer's Form 10-Q for the fiscal quarter ended March 31, 1995
indicated that 87,460,479 shares of Common Stock were issued and
outstanding as of that date.
Messrs. Hutchinson, Lang and Greer disclaim, pursuant to Rule 13d-4,
beneficial ownership of the shares of Common Stock which may be deemed to be
beneficially owned by CDAO, Overseas and WPGPEPO, except to the extent of their
respective interests in Overseas and WPGPEPO. Messrs. Hutchinson and Lang
disclaim, pursuant to Rule 13d-4, beneficial ownership of the shares of Common
Stock which may be deemed to be beneficially owned by CDA, except to the extent
of their respective interests in WPGPEP. WPGPEP, Overseas and WPGPEPO, disclaim,
pursuant to Rule 13d-4 beneficial ownership of the shares of Common Stock which
may be deemed to be beneficially owned by CDA, CDAO, except to the extent of
their respective interests in CDA and CDAO.
Messrs. Greer and Cogan disclaim, pursuant to Rule 13d-4, beneficial
ownership of the shares of Common Stock which may be deemed to be beneficially
owned by WPGEF and WPGVA, except to the extent of their respective interests in
WPGVP. WPGVP disclaims, pursuant to Rule 13d-4, beneficial ownership of the
shares of Common Stock which may be deemed to be beneficially owned by WPGPEF
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 25 of 29 Pages
---- ------
and WPGVA, except to the extent of its interests in WPGPEF and WPGVA.
This Statement is not being filed with respect to any shares of Common
Stock owned by any other general partner of WPGPEP, Overseas, WPGPEPO or WPGVP,
other than Messrs. Hutchinson, Lang, Cogan and Greer, because none of such
general partners possess or shares voting or dispositive power with respect to
any of the shares of Common Stock that may be deemed to be beneficially owned by
WPGPEP, Overseas, WPGPEPO or WPGVP. Each of such general partners disclaims,
pursuant to Rule 13d-4, that he or she is the beneficial owner, within the
meaning of Rule 13d-3, of the shares of Common Stock owned by the various
parties referred to in this Statement, other than such shares of Common Stock as
such general partner owns of record, or may be deemed to own by reason of his or
her interest as a partner in the various partnerships described herein. Each of
the entities described herein as owning shares of Common Stock disclaims,
pursuant to Rule 13d-4, beneficial ownership of such shares as are owned by
other entities described herein.
(c) Except as set forth in Item 4 above, no transactions in the
Issuer's securities by any of the Reporting Persons have been effected during
the past sixty (60) days.
(d) Except with respect to the Right of Refusal Shares, none of the
Reporting Persons know of any person who has the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of, the
shares of Common Stock set forth above.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
Except as set forth in this Statement, none of the Reporting Persons
has any express contracts, arrangements, understandings or relationships with
any of the other persons or entities named in Item 2, any other persons, or the
Issuer with respect to the securities of the Issuer.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 26 of 29 Pages
---- ------
Item 7. Material to be filed as Exhibits.
Exhibit A Stock Purchase Agreement, dated as of May 26, 1995, by and
among CCACA, CCACB and Pesa, is incorporated herein by reference
to Exhibit A of Schedule 13D filed on June 1, 1995 by CCACA,
CCACB, Allan R. Tessler and Michael Wellesley-Wesley.
Exhibit B Stock Purchase Agreement, dated as of May 26, 1995, by and
among CCACA, Sepa and Servizio, is incorporated herein by
reference to Exhibit B of Schedule 13D filed on June 1, 1995 by
CCACA, CCACB, Allan R. Tessler and Michael Wellesley-Wesley.
Exhibit C Assignment and Assumption Agreement, dated as of July 25, 1995,
by and among the Assignees, CCACA and CCACB.
Exhibit D Stockholders' Agreement, dated as of July 25, 1995, by and among
the Reporting Persons, CCACA and CCACB.
Exhibit E Registration Rights Agreement, dated as of July 25, 1995, by
and among the Issuer, the Assignees, CCACA and CCACB.
Exhibit F Escrow Agreement, dated as of July 25, 1995, by and among Pesa,
the Assignees, CCACB and National Union.
Exhibit G Rule 13d-1(f) Agreement by and among the Reporting Persons.
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 27 of 29 Pages
---- ------
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: August 4, 1995
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV, L.P.
By: WPG PRIVATE EQUITY PARTNERS,
L.P., its general partner
By: /s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: General Partner
WPG CORPORATE DEVELOPMENT ASSOCIATES
IV (OVERSEAS), L.P.
By: WPG CDA IV (OVERSEAS), LTD.,
its general partner
By: /s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Director
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 28 of 29 Pages
---- ------
WPG ENTERPRISE FUND II, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By: /s/ Philip Greer
Name: Philip Greer
Title: General Partner
WEISS, PECK & GREER VENTURE
ASSOCIATES III, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By: /s/ Philip Greer
Name: Philip Greer
Title: General Partner
WESTPOOL INVESTMENT TRUST PLC
By: /s/ R.F.J. Spier
Name: R.F.J. Spier
Title: Director
LION INVESTMENTS LIMITED
By: /s/ R.F.J. Spier
Name: R.F.J. Spier
Title: Director
/s/ Charles M. Diker
CHARLES M. DIKER
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108 Page 29 of 29 Pages
---- ------
WPG PRIVATE EQUITY PARTNERS, L.P.
By: /s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: General Partner
WPG CDA IV (OVERSEAS), L.P.
By: /s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Director
WPG PRIVATE EQUITY PARTNERS (OVERSEAS), L.P.
By: /s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Director
WPG VENTURE PARTNERS III, L.P.
By: /s/ Philip Greer
Name: Philip Greer
Title: General Partner
/s/ Steven N. Hutchinson
STEVEN N. HUTCHINSON
/s/Wesley W. Lang, Jr.
WESLEY W. LANG, JR.
/s/ Philip Greer
PHILIP GREER
/s/ Gill Cogan
GILL COGAN
Exhibit C
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is
being made this 25 day of July, 1995, by and among CC Acquisition Company A,
L.L.C., a Delaware limited liability company, its successors and assigns
("Acquisition Company A"), CC Acquisition Company B, L.L.C., a Delaware limited
liability company, its successors and assigns ("Acquisition Company B"), and the
persons set forth on Exhibit A-1 hereto (including each of such person's
successors and assigns), each of whom are hereinafter referred to individually
as an "Assignee" and collectively as the "Assignees." The Assignees listed on
Part I of Exhibit A-1 hereto are hereinafter referred to individually as a "WP
Group Assignee" and collectively as the "WP Group Assignees". Acquisition
Company A and Acquisition Company B are hereinafter referred to collectively as
the "Assignors."
W I T N E S S E T H :
WHEREAS, the Assignors are parties to a Stock Purchase
Agreement, dated as of May 26, 1995 (the "Pesa Agreement"), by and among the
Assignors and Pesa, Inc., a Delaware corporation ("Pesa"), pursuant to which
Acquisition Company A has, among other things, agreed to purchase 30,000,000
shares (the "Initial Pesa Shares") of the common stock, par value $.01 per share
(the "Common Stock"), of Chyron Corporation, a New York corporation (the
"Company"), and Acquisition Company B has agreed, among other things, to
purchase 29,414,732 shares (the "Installment Pesa Shares") of the Common Stock
of the Company upon the terms and as set forth in the Pesa Agreement; and
WHEREAS, Acquisition Company A is a party to a Stock Purchase
Agreement, dated as of May 26, 1995 (the "Sepa Agreement"), by and among
Acquisition Company A, Sepa Technologies Ltd., Co., a Georgia limited liability
company ("Sepa"), and John A. Servizio ("Servizio"), pursuant to which
Acquisition Company A has, among other things, (i) agreed to purchase 5,000,000
shares (the "Sepa Shares") of the Common Stock of the Company and (ii) a right
of first refusal with respect to 8,700,000 shares of the Common Stock of
the Company, upon the terms and as set forth in the Sepa Agreement; and
WHEREAS, Acquisition Company A is a party to an agreement,
dated as of July 25, 1995 (the "Leubert Agreement"), between Acquisition Company
A and Alfred O.P. Leubert ("Leubert"), pursuant to which Acquisition Company A
has a right of first refusal with respect to 300,000 shares of the Common Stock
of the Company, upon the terms and as set forth in the Leubert Agreement.
WHEREAS, the Assignees desire to acquire certain of the
Assignors rights and assume certain of the Assignors' obligations under the Sepa
Agreement and the Pesa Agreement and the Assignors desire to transfer to the
Assignees certain of the Assignors' rights and to have the Assignees assume
certain of the Assignors' obligations under the Pesa Agreement and the Sepa
Agreement, subject to the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises,
representations, warranties, and covenants contained herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
I. DEFINITIONS.
Capitalized terms used but not otherwise defined herein shall have the
meaning ascribed thereto in the Pesa Agreement or the Sepa Agreement as the
Leubert Agreement, as the context so indicates.
II. TRANSFER AND ASSIGNMENT.
Section 2.1 Terms of Purchase and Transfer of Assignment.
(a) Acquisition Company A hereby grants, conveys and assigns to the
Assignees, in the amount set forth opposite each Assignee's name in Column 3 of
Exhibit A-2 hereto, its right under the Pesa Agreement to acquire 20 million
shares of the Common Stock of the Company (which shares are referred to in the
Pesa Agreement as the Second Tranche of Shares and the Third Tranche of Shares)
and each such Assignee hereby agrees to assume his or its obligation to pay as
consideration for such shares the amount set forth opposite such Assignee's name
in Column 4 of Exhibit A-2 hereto, which aggregates to Ten Million Six Hundred
Thousand Dollars ($10,600,000) U.S., in accordance with the terms of this
Agreement and the provisions, to the extent applicable, set forth in Section 1.1
of the Pesa Agreement. Acquisition Company A shall cause Pesa to instruct the
Escrow Agent to deliver to each of the Assignees stock certificates representing
the number of shares of Common Stock set forth opposite such Assignee's name in
Column 3 of Exhibit A-2 hereto, duly endorsed or accompanied with stock powers
duly endorsed for transfer to the Assignees. Such 20 million shares of Common
Stock shall be delivered free and clear of all liens, security interests,
pledges, charges, claims of creditors, encumbrances, stockholders' agreements,
voting trusts, and adverse claims of any kind or nature whatsoever. The
Assignees shall each deliver the dollar amount set forth opposite each
Assignee's name in Column 4 of Exhibit A-2 hereto, to Pesa by certified check or
wire transfer in immediately available funds to an account in the United States
designated by Pesa. Assignors shall, in accordance with the Escrow Agreement
dated as of May 26, 1995 by and among Pesa, Acquisition Company A and the First
Union National Bank of North Carolina, as Escrow Agent (the "Escrow Agreement"),
provide the Escrow Agent with an affidavit signed by both the Pesa
Representative and the CCACA Representative (each as defined in the Escrow
Agreement) advising the Escrow Agent to distribute such 20 million shares of
Common Stock to the Assignees in the amounts set forth in Column 3 of Exhibit
A-2 hereto.
(b) Acquisition Company A hereby grants, conveys and assigns to the
Assignees, in the amount set forth opposite each Assignee's name in Column 5 of
Exhibit A-2 hereto, its right to acquire 5 million shares of the Common Stock of
the Company and each such Assignee agrees to assume his or its obligation to pay
as consideration for such shares the amount set forth opposite such Assignee's
name in Column 6 of Exhibit A-2 hereto, which aggregates to Two Million Six
Hundred Thousand Dollars ($2,600,000) U.S., in accordance with the terms of this
Agreement and provisions, to the extent applicable, set forth in Section 1.1 of
the Sepa Agreement. Acquisition Company A shall cause Pesa to deliver to the
Assignees stock certificates representing such 5 million shares of Common Stock
in the amounts set forth opposite such Assignee's name in Column 5 of Exhibit A
hereto, duly endorsed or accompanied with stock powers duly endorsed for
transfer to the Assignees. Such 5 million shares of Common Stock shall be
delivered free and clear of all liens, security interests, pledges, charges,
claims of creditors, encumbrances, stockholders' agreements, voting trusts, and
adverse claims of any kind or nature whatsoever. The Assignees shall each
deliver the dollar amount set forth opposite each Assignee's name in Column 6 of
Exhibit A-2 hereto to Sepa by certified check or wire transfer in immediately
available funds to an account in the United States designated by Sepa.
(c) Acquisition Company A hereby grants, conveys and assigns to the
WP Group Assignees the right to participate in Acquisition Company A's exercise
of its right of first refusal contained in Section 1.1(b) of the Sepa Agreement
and in the Leubert Agreement as provided in this Section 2.1(c). Each time Sepa
or Leubert delivers a Sale Notice, Acquisition Company A shall immediately (and
in any event no later than two days after receipt thereof) deliver a copy of
such Sale Notice to WPG Corporate Development Associates IV, L.P., as
representative of the WP Group Assignees (the "Representative"). Acquisition
Company A shall notify the Representative in writing within five (5) days of the
receipt of such Sale Notice whether it intends to exercise its right of first
refusal with respect to the Offered Shares and the Representative shall
immediately (and in any event no later than two days after receipt thereof)
deliver to the Assignees a copy of such notice delivered by Acquisition Company
A to the Representative together with a copy of the Sale Notice previously
delivered to the Representative. If Acquisition Company A shall desire to
exercise its right of first refusal, each of the WP Group Assignees shall have
the irrevocable and exclusive option, but not the obligation, to purchase from
Sepa or Leubert, as the case may be sixty percent (60%) of the Offered Shares at
the price and upon the terms and conditions equal to those offered by the
prospective purchaser in the proportions set forth opposite such WP Group
Assignee's name in Column 10 of Exhibit A-2 hereto. If Acquisition Company A
shall not desire to exercise its right of first refusal, the WP Group Assignees
shall have the irrevocable and exclusive option, but not the obligation, to
purchase all of the Offered Shares at the price and upon the terms and
conditions equal to those offered by the prospective purchaser in the
proportions set forth opposite such WP Group Assignee's name in Column 10 of
Exhibit A-2 hereto. Within ten (10) days of receipt of the notices from the
Representative each WP Group Assignee shall notify the Representative in writing
whether it intends to exercise its right of first refusal with respect to its
portion of the Offered Shares (including, if applicable, that portion of the
Offered Shares that Acquisition Company A has stated it will not purchase). To
the extent any of the WP Group Assignees do not notify the Representative or
states that such WP Group Assignee does not desire to exercise its right of
first refusal (the "Non-Participating Assignees"), each of the other WP Group
Assignees shall have the irrevocable and exclusive option, but not the
obligation, to purchase the shares that could have been purchased by the
Non-Participating Assignees in an amount equal to the product of (i) the Offered
Shares such Assignee has a right to purchase divided by (ii) all of the Offered
Shares, multiplied by the shares that the Non-Participating Assignees could have
purchased. The Representative shall notify Acquisition Company A and Pesa of the
number of shares of Common Stock each participating WP Group Assignee will
purchase no later than twenty-five (25) days after the Representative's receipt
of the Sale Notice. The Representative will coordinate with the WP Group
Assignees regarding each WP Group Assignee's rights with respect to the right of
first refusal.
(d) Acquisition Company B hereby grants, conveys and assigns to the
Assignees, its right to acquire the number of shares of Common Stock set forth
opposite such Assignee's name in Column 7 of Exhibit A-2 hereto, which aggregate
to 17,648,839 shares of the Common Stock of the Company (representing sixty
percent (60%) of 29,414,732 shares of the Common Stock of the Company) and each
such Assignee hereby agrees to assume his or its obligation to pay as
consideration for such shares, the amount set forth opposite each Assignee's
name in Column 8 of Exhibit A-2 hereto, which aggregates to $8,471,442.83
(representing sixty percent (60%) of $14,119,071.36), in accordance with the
terms and provisions set forth in Section 1.1(c) of the Pesa Agreement.
(i) At the Closing, the Assignors shall cause Pesa to deliver to each
Assignee stock certificates representing the number of Installment
Pesa Shares set forth opposite each Assignee's name in Column 7 of
Exhibit A-2 hereto, duly endorsed or accompanied by stock powers
duly endorsed for transfer to each such Assignee. Such Installment
Pesa Shares shall be delivered to the Assignees free and clear of
all liens, security interests, pledges, charges, claims of
creditors, encumbrances, stockholders' agreements, voting trusts,
and adverse claims, of any kind or nature whatsoever.
(ii) Each of the Assignees shall make payment for its portion of the
Installment Pesa Shares in the amount set forth opposite each
Assignee's name in Column 8 of Exhibit A-2 hereto, by certified
check or wire transfer, in immediately available funds, to an
account in the United States designated by Pesa, in accordance
with the schedule set forth in Section 1.1(c)(ii) of the Pesa
Agreement.
(iii) As security for the payment obligation for the portion of the
Installment Pesa Shares purchased by each Assignee, each Assignee
shall pledge its Installment Pesa Shares to Pesa and deliver such
Installment Pesa Shares to the Escrow Agent, duly endorsed in
blank or accompanied with stock powers duly endorsed in blank by
such persons to be held as collateral; such Installment Pesa
Shares shall be delivered to the Escrow Agent by each Assignee
free and clear of all liens, security interests, pledges, charges,
claims of creditors, encumbrances, stockholders' agreements,
voting trusts, and adverse claims of any kind or nature
whatsoever, except for any claims or liens resulting from the
terms and provisions of the Pesa Agreement and the shareholders
agreement, dated as of July 25, 1995 among certain of the
Assignees and the Assignors (the "Sharehold-ers Agreement").
(iv) If Acquisition Company B fails to make its pro rata portion of any
monthly payment when due as provided in Section 1.1(c) of the Pesa
Agreement or any of the Assignees fails to make its monthly
payment when due as provided in section 1.1(c) of the Pesa
Agreement, the WP Group Assignees shall have the right to cure
such payment default within twenty (20) days after receipt of
written notice thereof from Pesa. Upon receipt from Pesa by the
Representative of a written notice of a payment default by
Acquisition Company B or any of the Assignees "The Cure Notice")
the Representative shall immediately (and in any event no later
than two days after the receipt thereof) deliver a copy of such
notice to the WP Group Assignees. Within ten (10) days of the date
the Representative receives the Cure Notice, each WP Group
Assignee shall notify the Representative in writing whether it
intends to participate, with respect to its portion in the cure of
any monthly payment that Acquisition Company B, or any of the non
WP Group Assignees has failed to make and to receive shares of
Common Stock out of escrow in respect of the amount so paid. A WP
Group Assignee who has failed to make its monthly installment
shall not be eligible to participate in a cure. Each participating
WP Group Assignee shall have the right to cure in an amount equal
to the product of (i) the monthly installment most recently paid
by such WP Group Assignee dived by (ii) the total installment
payment due for such month (excluding amounts paid or owed by
Acquisition Company B and any of the non WP Group Assignees),
multiplied by the dollar amount to be cured. The Representative
shall notify Acquisition Company B and Pesa of the dollar amount
each participating WP Group Assignee will pay in respect of a cure
no later than twenty (20) days after the Representative's receipt
of the Cure Notice. Acquisition Company B shall have the right to
cure any payment default not cured by the WP Group Assignees. The
Representative will coordinate with the WP Group Assignees
regarding such Assignee's right to cure. In either such case the
party which cures such payment default shall be entitled to
receive out of escrow the portion of such Installment Pesa Shares
covered by such payment free and clear of all liens, security
interests, stockholders' agreement, voting trusts and adverse
claims of any kind or notice whatsoever, except for the
Shareholders Agreement.
Section 2.2 Additional Consideration
(a) As additional consideration for the assignments described in
Section 2.1 hereto the Assignees shall pay the amount set forth in Column 9 of
Exhibit A-2 hereto, which amount aggregates to One Million ($1,000,000) U.S. in
immediately available funds in accordance with the instructions delivered to the
Assignees by the Assignors.
Section 2.3 Closing.
The Closing (the "Closing") of the transactions contemplated by
this Agreement shall take place at the offices of Camhy Karlinsky & Stein LLP at
1740 Broadway, New York, New York 10019 at 10:00 a.m., New York City time on or
before July 26, 1995 or such other time or date as the parties may mutually
agree (the "Closing Date"), but in no event later than September 30, 1995.
III. REPRESENTATIONS AND WARRANTIES OF SELLER.
The Assignors each severally represent and warrant to the Assignees as
follows:
Section 3.1 Litigation and Claims.
There is no litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation pending, (to each Assignor's
knowledge) threatened, or (to each Assignor's knowledge) in prospect therefor,
that would prohibit the transactions contemplated pursuant to this Agreement.
Section 3.2 Organization.
Each of the Assignors is a limited liability company duly organized,
validly existing, and in good standing under the laws of Delaware.
Section 3.3 Authority to Transfer.
Each of the Assignors has all requisite power and authority to
execute, deliver, and perform this Agreement and the instruments and documents
contemplated hereby. All necessary proceedings of each Assignor have been duly
taken to authorize the execution, delivery, and performance of this Agreement
and the instruments and documents contemplated hereby. This Agreement has been
duly authorized, executed, and delivered by each Assignor, is the legal, valid,
and binding obligation of each Assignor, and is enforceable as to each Assignor
in accordance with its terms.
Section 3.4 Restrictions.
Neither of the Assignors is under any contractual restriction or
obligation that is inconsistent with the execution and performance of this
Agreement. No consent, authorization, approval, order, license, certificate, or
permit of or from, or declaration or filing with, any foreign, United States,
state, local, or other governmental authority or any court or other tribunal is
required by either of the Assignors or any of its affiliated or controlling
entities for the execution, delivery, or performance of this Agreement by the
Assignors.
IV. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE.
The Assignees individually represent and warrant to the Assignors as
follows:
Section 4.1 Organization.
Each of the Assignees which is not a natural person is an entity duly
organized, validly existing, and in good standing under the laws of its
jurisdiction of organization.
Section 4.2 Authority to Buy.
Each of the Assignees has the requisite power and authority to
execute, deliver, and perform this Agreement and the instruments and documents
contemplated hereby. All necessary proceedings of each Assignee have been duly
taken to authorize the execution, delivery, and performance of this Agreement
and the instruments and documents contemplated hereby. This Agreement has been
duly authorized, executed, and delivered by each Assignee, is the legal, valid,
and binding obligation of each Assignee, and is enforceable as to each Assignee
in accordance with its terms.
Section 4.3 Litigation and Claims.
There is no litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation pending, (to each Assignee's
knowledge) threatened, or (to each Assignee's knowledge) in prospect therefor,
that would prohibit the transactions contemplated pursuant to this Agreement.
Section 4.4 Restrictions.
None of the Assignees is under any contractual restriction or
obligation that is materially inconsistent with the execution and performance of
this Agreement. No consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any foreign,
United States, state, local, or other governmental authority or any court or
other tribunal is required by any of the Assignees or any affiliate or
controlling entities thereof for the execution, delivery, or performance of this
Agreement by any of the Assignees.
Section 4.5 Purchases for Investment Purposes.
Each Assignee is acquiring the Initial Pesa Shares, the Installment
Pesa Shares, and the Sepa Shares (collectively, the "Shares") for its own
account for investment purposes only and with no intention of offering,
distributing, or reselling the Shares or any part thereof in any transaction
that would be in violation of any Federal or State securities laws, without
prejudice, however, to any right of a Assignee to sell or otherwise dispose of
all or any part of the Shares under a registration under the Securities Act of
1933, as amended (the "Securities Act"), and other applicable State securities
laws or under an exemption from such registration available under the Securities
Act and other applicable State securities laws. Each Assignee has not taken or
caused to be taken, and shall not take or cause to be taken, any action that
would cause the Assignees, the Assignors, the Company or any of their respective
affiliates to be deemed an underwriter, as defined in Section 2(11) of the
Securities Act.
Section 4.6 Sophisticated Investor.
(a) Each Assignee is a sophisticated investor as such term is
contemplated under the Securities Act of 1933, as amended. Each Assignee
recognizes that the Company emerged from bankruptcy on December 27, 1991 and
that the purchase of the Shares involves significant risks. Each Assignee also
recognizes that none of the proceeds from the purchase of the Shares shall
accrue to the benefit of the Company, but shall instead accrue to the benefit of
Pesa and Sepa, as the case may be.
(b) No Assignee is relying upon Assignor, Pesa or Sepa, as the case
may be, the Company or any of their respective Affiliates, accountants,
attorneys or financial advisors for advice with respect to whether the
Assignee's acquisition of the Shares constitutes a legal investment for the
Assignees or with respect to the tax or other legal consequences of such
purchase.
Section 4.7 Restricted Securities.
(a) Each Assignee understands and agrees that (i) the sale of the
Shares has not been registered under the Securities Act or any State securities
laws; and (ii) each Assignee shall not offer or sell the Shares except pursuant
to registration under the Securities Act or an available exemption from
registration under the Securities Act.
(b) Each Assignee agrees to the imprinting, so long as appropriate, of
any certificates representing the Shares with a conspicuous legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR UNDER ANY STATE
SECURITIES LAWS. THESE SECURITIES SHALL NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF EITHER (1) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2)
AN OPINION OF COUNSEL, AS MAY BE REASON- ABLY SATISFACTORY TO THE
COMPANY, THAT THE PROPOSED SALE OR TRANSFER IS IN ACCORDANCE WITH AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
V. MISCELLANEOUS.
Section 5.1 Brokerage Fees.
If any person shall assert a claim to a fee, commission, or other
compensation on account of alleged employment as a broker or finder, in
connection with or as a result of any of the transactions contemplated by this
Agreement, the party purportedly engaging such broker or finder shall indemnify
and hold harmless the other parties against any and all Claims (as defined in
Section 8.1 of the Pesa Agreement), as and when incurred, arising out of, based
upon, or in connection with such Claim by such person, except to the extent that
it is determined in any suit, action, or proceeding that such other parties had
engaged such broker or finder.
Section 5.2 Further Actions.
At any time and from time to time, each party agrees, as its expense,
to take such actions and to execute and deliver such documents or instruments as
may be reasonably necessary to effectuate the purposes of this Agreement.
Section 5.3 Submission to Jurisdiction.
Each of the parties hereto irrevocably submits to the jurisdiction of
the courts of the State of New York and of any Federal court located in the
State of New York in connection with any action or proceeding arising out of or
relating to this Agreement or of any document or instrument delivered pursuant
to, in connection with, or simultaneously with this Agreement.
Section 5.4 Merger; Modification.
This Agreement, the Shareholders Agreement and the exhibits attached
hereto set forth the entire understanding of the parties with respect to the
subject matter hereof, supersede all existing agreements concerning such subject
matter, and may be modified only by a written instrument duly executed by each
party to be charged. None of the parties hereto or their affiliate has entered
into any other agreement concerning the Common Stock which is the subject matter
hereof with any other party hereto or any third party other than with respect to
any agreement specifically referred to herein.
Section 5.5 Notices.
Any notice received by either Assignor with the Sepa Agreement or the
Pesa Agreement shall be promptly given to each Assignee. Any notice or other
communication required or permitted to be given hereunder shall be in writing
and shall be mailed by certified mail, return receipt requested (or by the most
nearly comparable method if mailed from or to a location outside of the United
States) or by Federal Express, U.S. Express Mail, or similar overnight delivery
or courier service or delivered (in person or by telecopy, or similar
telecommunications equipment) against receipt to the party to whom it is to be
given at the address of such party set forth below (or to such other address as
the party shall have furnished in writing in accordance with the provisions of
this Section 5.5):
Assignors:
CC Acquisition Company A
CC Acquisition Company B
c/o Camhy Karlinksy & Stein LLP
1740 Broadway
New York, New York 10019
Attn.: Michael Wellesley-Wesley
c/o Daniel I. DeWolf, Esq.
with a copy (which copy shall not constitute notice) to:
Camhy Karlinsky & Stein LLP
1740 Broadway
New York, New York 10019
Attn.: Sheldon D. Camhy, Esq.
Assignees:
WP GROUP ASSIGNEES
WPG Corporate Development Associates IV, L.P.
c/o Weiss, Peck & Greer Private Equity Group
One New York Plaza
New York, NY 10004-1950
Att: Mr. Wesley W. Lang, Jr.
Telephone: (212) 908-9500
Telecopier: (212) 908-0112
WPG Corporate Development
Associates IV (Overseas), L.P.
c/o Weiss, Peck & Greer Private Equity Group
One New York Plaza
New York, NY 10004-1950
Attn: Mr. Wesley W. Lang, Jr.
Telephone: (212) 908-9500
Telecopier: (212) 908-0112
WPG Enterprise Fund II, L.P.
555 California Street
Suite 4760
San Francisco, CA 94104
Attn: Mr. Gill Cogan
Telephone: (415) 622-6864
Telecopier: (415) 989-5105
Weiss, Peck & Greer Venture Associates III, L.P.
555 California Street
Suite 4760
San Francisco, CA 94104
Attn: Mr. Gill Cogan
Telephone: (415) 622-6864
Telecopier: (415) 989-5105
Westpool Investment Trust plc
Carlton House
33 Robert Adam Street
London W1M5AH
Attn: Mr. Robert A. Rayne
Telephone: 011-44-171-935-3555
Telecopier: 011-44-171-935-3737
Lion Investment Limited
Carlton House
33 Robert Adam Street
London W1M5AH
Attn: Mr. Robert A. Rayne
Telephone: 011-44-171-935-3555
Telecopier: 011-44-171-935-3737
Mr. Charles M. Diker
Weiss, Peck & Greer, L.L.C.
One New York Plaza
New York, NY 10004-1950
Telephone: (212) 908-9500
Telecopier: (212) 908-0176
with a copy (which copy shall not constitute notice) to:
Chadbourne & Parke
30 Rockefeller Plaza
New York, New York 10112
Attn.: Dennis J. Friedman, Esq.
Any notice or other communication given by certified mail (or by such
comparable method) shall be deemed given at the time of certification thereof
(or comparable act) except for a notice changing a party's address which will be
deemed given at the time of receipt thereof. Any notice given by other means
permitted by this Section 5.5 shall be deemed given at the time of receipt
thereof.
Section 5.6 Waiver.
Any waiver by any party of a breach of any terms of this Agreement
shall not operate as or be construed to be a waiver of any other breach of that
term or of any breach of any other term of this Agreement. The failure of a
party to insist upon strict adherence to any term of this Agreement on one or
more occasions will not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement. Any waiver must be in writing.
Section 5.7 Binding Effect.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the Purchasers, and their respective successors and assigns and
the Assignors and its respective successors and assigns, and shall inure to the
benefit of each Indemnitee and its successors and assigns (if not a natural
person) and his assigns, heirs, and personal representatives (if a natural
person).
Section 5.8 No Third-Party Beneficiaries.
This Agreement does not create, and shall not be construed as
creating, any rights enforceable by any person not a party to this Agreement
(except as provided in 5.7).
Section 5.9 Separability.
If any provision of this Agreement is invalid, illegal, or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
Section 5.10 Headings.
The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
Section 5.11 Counterparts; Governing Law.
This Agreement may be executed in any number of counterparts (and by
facsimile), each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. It shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to the rules governing the conflicts of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
CC ACQUISITION COMPANY A, L.L.C.
By:s/Michael Wellesly-Wesley
Name: Michael Wellesly-Wesley
Title: Vice President
CC ACQUISITION COMPANY B, L.L.C.
By:s/Michael Wellesly-Wesley
Name: Michael Wellesly-Wesley
Title: Vice President
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV, L.P.
By: WPG PRIVATE EQUITY PARTNERS,
L.P., its general partner
By:s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: General Partner
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV (OVERSEAS), L.P.
By: WPG CDA IV (OVERSEAS), LTD.,
its general partner
By:s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Director
WPG ENTERPRISE FUND II, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By:s/Philip Greer
Name: Philip Greer
Title: General Partner
WEISS, PECK & GREER VENTURE
ASSOCIATES III, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By:s/Philip Greer
Name: Philip Greer
Title: General Partner
WESTPOOL INVESTMENT TRUST PLC
By:s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Attorney-in-Fact
LION INVESTMENTS LIMITED
By:s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Attorney-in-Fact
s/Charles M. Diker
CHARLES M. DIKER
MINT HOUSE NOMINEES LIMITED
By:s/Michael Wellesly-Wesley
Name: Michael Wellesly-Wesley
Title: Attorney-in-Fact
PINE STREET VENTURES, L.L.C.
By:s/Michael Wellesly-Wesley
Name: Michael Wellesly-Wesley
Title: Attorney-in-Fact
s/Michael Wellesly-Wesley Attorney-in-Fact
ISAAC HERSLY
s/Michael Wellesly-Wesley Attorney-in-Fact
ALAN I. ANNEX
s/Michael Wellesly-Wesley Attorney-in-Fact
ILAN KAUFTHAL
Z FOUR PARTNERS L.L.C.
By: s/Michael Wellesly-Wesley
Name: Michael Wellesly-Wesley
Title: Attorney-in-Fact
s/Michael Wellesly-Wesley Attorney-in-Fact
A.J.L. BEARE
<PAGE>
EXHIBIT A-1
PART I
WPG Corporate 10,416,822 7,353,793
Development Associates
IV, L.P.
WPG Corporate 2,511,862 1,773,258
Development Associates
IV (Overseas), L.P.
Weiss, Peck & Greer 2,152,195 1,519,350
Venture Associates III,
L.P.
WPG Enterprise Fund II 2,588,322 1,827,235
L.P.
Westpool Investment 4,094,080 2,890,231
Trust plc
Lion Investments Limited 1,939,306 1,369,060
Charles M. Diker 861,912 608,470
PART II
Pine Street Ventures, 36,001 25,414
L.L.C.
Isaac Hersly 50,000 35,298
Ilan Kaufthal 175,000 123,542
Mint House Nominees, 43,000 30,356
Ltd.
Z Four Partners L.L.C. 87,500 61,771
A.J.L. Beare 26,000 18,355
Alan I. Annex 18,000 12,707
CC Acquisition Company 11,765,892
B, L.L.C.
<PAGE>
Exhibit A-2
<TABLE>
<S> <C> <C> <C> <C>
1 2 3
Total Shares # of Shares
Purchased at Closing Purchased from Pesa
Name Percent at Closing
PART I
WPG CDA IV, L.P. 10,416,822 41.67% 8,333,458
WPG CDA IV (Overseas), Ltd. 2,511,862 10.05% 2,009,490
WPG Venture Associates III, L.P. 2,152,195 8.61% 1,721,756
WPG Enterprise Fund II, L.P. 2,588,322 10.35% 2,070,857
Westpool Investment Trust plc 4,094,080 16.38% 3,275,264
Lion Investments Limited 1,939,306 7.76% 1,561,445
Charles Diker 861,912 3.45% 689,530
PART II
Pine Street Ventures, L.L.C. 36,000 0.15% 28,800
Isaac Hersly 50,000 0.20% 40,000
Mint House Nominess, Ltd. 43,000 0.17% 34,400
Ilam Kaufthal 175,000 0.70% 140,000
Alan I. Annex 18,000 0.07% 14,400
Z Four Partners, L.C.C. 87,500 0.35% 70,000
A.J.L. Beare 26,000 0.10% 20,800
---------- ------ ----------
Total: 25,000,000 100.00% 20,000,000
4 5 6
$ of Shares # of Shares $ of Shares
Purchased from Pesa Purchased from Sepa Purchased from Sepa
Name at Closing at Closing at Closing
PART I
WPG CDA IV, L.P. 4,416,732.63 2,083,364 1,083,349.51
WPG CDA IV (Overseas), Ltd. 1,065,029.66 502,372 261,233.69
WPG Venture Associates III, L.P. 912,530.78 430,439 223,828.30
WPG Enterprise Fund II, L.P. 1,097,448.40 517,865 269,185.46
Westpool Investment Trust plc 1,735,890.07 818,816 425,784.36
Lion Investments Limited 822,265.72 387,861 201,687.82
Charles Diker 365,450.74 172,382 89,638.86
PART II
Pine Street Ventures, L.L.C. 15,264.00 7,200 3,816.00
Isaac Hersly 21,200.00 10,000 5,300.00
Mint House Nominess, Ltd. 18,232.00 8,600 4,558.00
Ilam Kaufthal 74,200.00 35,000 18,550.00
Alan I. Annex 7,632.00 3,600 1,908.00
Z Four Partners, L.C.C. 37,100.00 17,500 9,275.00
A.J.L. Beare 11,024.00 5,200 2,756.00
------------- --------- ------------
Total: 10,600,000.00 5,000,000 2,600,000.00
7 8 9 10
# of "B" Shares $ of "B" Shares WP
Purchased Purchased Additional Group
Name from Pesa from Pesa Consideration Percent
PART I
WPG CDA IV, L.P. 7,353,793 3,529,820.56 416,672.89 42.41
WPG CDA IV (Overseas), Ltd. 1,773,258 851,163.95 100,474.50 10.23
WPG Venture Associates III, L.P. 1,519,350 729,287.95 86,087.81 8.76
WPG Enterprise Fund II, L.P. 1,827,235 877,072.77 103,532.87 10.54
Westpool Investment Trust plc 2,890,231 1,387,310.71 163,763.21 16.67
Lion Investments Limited 1,369,060 657,148.78 77,572.24 7.89
Charles Diker 608,470 292,065.57 34,476.48 3.51
PART II
Pine Street Ventures, L.L.C. 25,414 12,198.72 1,440.00
Isaac Hersly 35,298 16,943.04 2,000.00
Mint House Nominess, Ltd. 30,356 14,570.88 1,720.00
Ilam Kaufthal 123,542 59,300.16 7,000.00
Alan I. Annex 12,707 6,099.36 720.00
Z Four Partners, L.C.C. 61,774 29,650.08 3,900.00
A.J.L. Beare 18,355 8,810.40 1,040.00
---------- ------------ ----------
Total: 17,648,839 8,471,442.82 1,000,000.00
</TABLE>
Exhibit D
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of July 25, 1995, by and
among CC ACQUISITION COMPANY A, L.L.C., a Delaware limited liability company
("CCACA"), CC ACQUISITION COMPANY B, L.L.C., a Delaware limited liability
company ("CCACB" and together with CCACA, "CCAC"), WPG CORPORATE DEVELOPMENT
ASSOCIATES IV, L.P., a Delaware limited partnership ("CDA"), WPG CORPORATE
DEVELOPMENT ASSOCIATES IV (OVERSEAS), L.P., a Cayman Islands exempted limited
partnership ("CDAO"), WPG ENTERPRISE FUND II, L.P., a Delaware limited
partnership ("WPGII"), Weiss, Peck & Greer Venture Associates III, L.P., a
Delaware limited partnership ("WPGIII"), Westpool Investment Trust plc, a public
limited company organized under the laws of England ("WIT"), Lion Investments
Limited, a limited company organized under the laws of England ("Lion"), and
CHARLES M. DIKER (such individual together with CDA, CDAO, WPGII, WPGIII, WIT
and Lion, the "New Investor Group").
W I T N E S S E T H:
WHEREAS, CCACA, CCACB and Pesa, Inc., a Delaware corporation
("Pesa") have entered into a Stock Purchase Agreement dated May 26, 1995 for the
purchase by CCACA and CCACB of 59,414,732 shares of common stock, par value $.01
per share (the "Common Stock"), of Chyron Corporation, a New York corporation
(the "Company"), from Pesa (the "Pesa Purchase");
WHEREAS, CCACA, Sepa Technologies Ltd., Co., a Georgia limited
liability company ("Sepa"), and John A. Servizio ("Servizio") have entered into
a Stock Purchase Agreement dated May 26, 1995 for the purchase by CCACA of
5,000,000 shares of Common Stock and the acquisition by CCACA of a right of
first refusal with respect to 9,000,000 shares of Common Stock from Sepa (the
"Sepa Purchase");
WHEREAS, simultaneous with the execution of this Agreement,
CCACA, CCACB, Pesa, Sepa, Servizio and the New Investor Group have entered into
an assignment and assumption agreement (the "Assignment and Assumption
Agreement") with respect to the Pesa Purchase and the Sepa Purchase pursuant to
which CCACA and CCACB have assigned certain of their rights to acquire shares of
Common Stock on the terms set forth therein;
WHEREAS, the parties hereto wish to enter into certain
agreements with respect to the Common Stock to be Beneficially Owned by them
upon consummation of the Pesa Purchase, Sepa Purchase and Assignment and
Assumption Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, terms defined in
this Agreement, including the heading and recitals, shall have their respective
assigned meanings, and the following capitalized terms shall have the meanings
ascribed to them below:
"Affiliate" shall mean (i) in the case of any individual
stockholder, any Associate of such individual or (ii) in the case of any other
Person, any Person that directly or indirectly through one or more
intermediaries, controls, is controlled by or under common control with the
Person in question. As used herein, "control" shall mean the Beneficial
Ownership of at least a majority of the equity interests of a Person entitling
the owner of such interests to direct the policies and operations of such
Person.
"Associate" of any Person shall mean any spouse (including a
former spouse under a legally terminated marriage) or descendant (whether
natural, step or adopted) of such Person (a "Relative") or any trust formed
exclusively for the benefit of such Person or one or more Relative of such
Person.
"Beneficially Own" or "Beneficial Ownership" with respect to
any securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act of 1934, as amended),
including pursuant to any agreement, arrangement or understanding, whether or
not in writing.
"Board of Directors" shall mean the Board of Directors of the
Company.
"Party" shall mean a Stockholder party to this Agreement,
including a Permitted Transferee under this Agreement. References herein to any
particular Party shall include such Party and such Party's Permitted
Transferees.
"Permitted Transferee" shall mean any Person to whom a Party
transfers shares of Common Stock in accordance with the terms of this Agreement,
and includes any Person to whom a Permitted Transferee (as thus defined) (or a
Permitted Transferee of a Permitted Transferee) so further transfers shares and
who is required to, and does, become bound by the terms of this Agreement.
"Person" shall mean any individual, corporation, partnership,
trust or other entity of any nature whatsoever.
"Securities" shall mean equity securities of the Company and
options, warrants and other rights to acquire equity securities of the Company,
and shall include, without limitation, the Common Stock.
"Stockholder" shall mean any Person owning beneficially and/or
of record any of the shares of the Common Stock.
"Transfer" shall mean any transfer, sale, assignment,
exchange, mortgage, pledge, hypothecation or other disposition of any Common
Stock or any interest therein.
2. Board of Directors. (a) Each of the Parties agrees to vote
or cause to be voted all the shares of Common Stock of which such Party is the
Beneficial Owner so that the Board of Directors shall be constituted to have
nine members. Until such date as CCAC ceases to Beneficially Own 8% of the
issued and outstanding shares of Common Stock, CCAC shall have the right to
nominate three members of the Board of Directors (the "CCAC Directors") and each
of the Parties agrees to vote or cause to be voted all the shares of Common
Stock of which such Party is the Beneficial Owner in favor of such nominees.
Until such date as the New Investor Group ceases to Beneficially Own 8% of the
issued and outstanding shares of Common Stock, (i) CDA, CDAO, WPGII and WPGIII
(collectively, the "WP Group") shall have the right to nominate one member to
the Board of Directors, (ii) WIT and Lion (collectively, "WIT/Lion") shall have
the right to nominate one member to the Board of Directors and (iii) the WP
Group and WIT/Lion shall together have the right to nominate one member to the
Board of Directors (collectively, the "New Investor Group Directors") and each
of the Parties agrees to vote or cause to be voted all the shares of Common
Stock of which such Party is the Beneficial Owner in favor of such nominees.
With respect to the three members of the Board of Directors other than the CCAC
Directors and the New Investor Group Directors (the "Independent Directors"),
neither CCAC nor the New Investor Group shall nominate or vote the shares of
Common Stock of which such Party is the Beneficial Owner in favor of the
election of any Independent Director unless CCAC and the WP Group and WIT/Lion
each agrees with such nomination or each votes the shares of Common Stock of
which such Party is the Beneficial Owner in favor of such election and CCAC and
the WP Group and WIT/Lion each shall cause (to the extent permitted under
applicable laws and to the extent within such Party's control) the members of
the Board of Directors designated by it not to nominate or vote in favor of the
election of any Independent Director unless the members of the Board of
Directors designated by the other group agrees with such nomination or votes in
favor of such election.
(b) It is CCAC's and the New Investor Group's understanding
that as of the date of this Agreement, three members of the Board of Directors
will have resigned from the Board of Directors and the four remaining members of
the Board of Directors will increase the size of the Board of Directors to nine
and vote for the election of two of the CCAC Directors and all of the New
Investor Group Directors. CCAC and the New Investor Group each hereby agrees it
shall promptly take whatever action necessary to effect the intent of this
Agreement, including, without limitation, making a written request for the
Secretary of the Company to call a special meeting of the Stockholders to, if
necessary, (i) elect the CCAC Directors and the New Investor Group Directors,
(ii) remove any members of the Board of Directors who are not agreed to by CCAC
and the New Investor Group and (iii) elect Independent Directors. At such
meeting of Stockholders, CCAC and the New Investor Group each hereby agree to
vote all of the shares of Common Stock owned or held of record by it to effect
the intent of the immediately preceding sentence and the intent of this
Agreement.
(c) If either CCAC or the New Investor Group shall notify the
other of its desire to remove any director of the Company previously designated
by it, each of the other Parties, subject to applicable law and Section 2(e)
below, shall vote or cause to be voted all of the shares of Common Stock of
which such Party is the Beneficial Owner so as to remove such director.
(d) If any director previously designated by CCAC or the New
Investor Group ceases to serve on the Board of Directors (whether by reason of
death, resignation, removal or otherwise), the party that designated such
director shall be entitled to designate a successor director to fill the vacancy
created thereby and each of CCAC and the New Investor Group shall, subject to
applicable law, cause the directors designated by it to vote for such person
designated to fill such vacancy.
(e) Each of the Parties agrees to indemnify and hold harmless
the Company and each other Party from and against any and all losses, claims,
damages or liabilities (or actions in respect thereof) to which the Company and
the other Parties, as the case may be, may be subject, insofar as such losses,
claims, damages or liabilities arise out of or are based upon the removal, in
accordance with the specific provisions of this Section 2, of any director
previously designated by it pursuant to this Section 2, and shall reimburse the
Company and the other Parties, as the case may be, for any legal or other
expenses reasonably incurred by the Company and the other Parties, as the case
may be, in connection with investigating or defending any such loss, claim,
damage, liability or action.
(f) The Parties hereto hereby agree that any individual
designated as a director of the Company may be removed for Cause. For purposes
of this Section 2.2(f), "Cause" shall mean the conviction of, or plea of nolo
contendere to, a felony by such party, or commitment of fraud, embezzlement or
theft by such party against the Company, in each case as reasonably determined
by a majority vote of the Board of Directors. No such removal of an individual
designated pursuant to this Section 2 shall affect any of the Parties' rights to
designate a different individual pursuant to this Section 2.
3. Transfers. (a) Notwithstanding any other provisions of this
Agreement, each Party shall be entitled from time to time, without the consent
of any other Parties or compliance with any of the procedures specified in
Section 5 hereof, to Transfer any or all of the shares of Common Stock owned by
it to any of its Affiliates, any other Party or any limited partner of any of
the general partnerships that is a Party or an Affiliate of a Party, so long as
such Permitted Transferee agrees in form and substance satisfactory to the
Parties, to be, and becomes, bound by the terms of this Agreement.
(b) Each Party agrees that it and its Affiliates will not
Transfer 10% or more of the outstanding shares of Common Stock in one or a
series of transactions unless (i) such Transfer is in accordance with Section
3(a) hereof, (ii) such Transfer is in compliance with the procedures specified
in Section 5 hereof and such Permitted Transferee agrees in form and substance
satisfactory to the Parties, to be, and becomes, bound by the terms of this
Agreement or (iii) such Transfer is in connection with any offering of Common
Stock (x) pursuant to a registration statement filed with the Securities and
Exchange Commission, (y) pursuant to the volume and manner of sale limitations
set forth in Rule 144 under the Securities Act of 1933, as amended (the "Act")
or (z) pursuant to Regulation S of the Act.
4. Effect of Void Transfers. In the event of any purported
Transfer of any shares of Common Stock in violation of the provisions of this
Agreement, such purported Transfer shall be void and of no effect.
5. Tag-Along Rights. (a) Subject to Section 5(b) hereof, no
later than 20 days prior to the proposed date of consummation of a Transfer of
any shares of Common Stock, the transferring Party shall provide each other
Party with written notice of the proposed Transfer, including the Person to whom
it wishes to Transfer shares, the number of shares proposed to be Transferred,
and the price and other material terms and conditions of the proposed Transfer.
Each such other Party shall then have the right by notice given no later than 10
days following receipt of the 20-day notice referred to above, and the
transferring Party shall afford each such other Party the opportunity, to
include in such Transfer a pro rata portion of the shares of Common Stock held
by such other Party on the same terms and conditions. The term "pro rata
portion" as used above shall be determined by multiplying the number of shares
of Common Stock owned by a Party at such time by a fraction, the numerator of
which is equal to the number of shares of Common Stock owned by such Party at
such time and the denominator of which is the number of shares of Common Stock
owned by all Parties at such time having elected to participate in such
Transfer. If necessary, the party initially proposing the Transfer shall reduce
the number of its shares to be included in the Transfer to permit such pro rata
participation. In the event any Party elects to sell less than its full pro rata
portion, the difference shall be allocated among each of the other Parties
having elected to participate in such Transfer and each such other Party shall
be entitled to include in such Transfer its pro rata portion (calculated
excluding such difference from the denominator of the fraction referred to
above) of such difference until no such difference remains.
(b) The Tag-Along Rights of the Parties shall not pertain or
apply to (a) any offering of Common Stock by the Parties or their transferees
(i) pursuant to a registration statement filed with the Securities and Exchange
Commission or any similar authority outside the United States, or (ii) pursuant
to the volume and manner of sale limitations set forth in Rule 144 under the
Securities Act of 1933, as amended, as in effect on the date thereof, (b)
pledges of Common Stock which create a mere security interest pursuant to a bona
fide loan transaction, or to the acquisition (by virtue of the exercise of the
security interest created by such pledge in accordance with its terms) or
subsequent sale of such Common Stock by the pledgee, (c) (i) any transaction for
which neither the Transferring Party nor its Affiliates or Associates receives
any consideration, directly or indirectly or (ii) any Transfers permitted by the
terms of Section 3 hereof.
6. Termination. This Agreement shall terminate, and thereby
become null and void, on the earlier to occur of (i) the tenth anniversary of
the date hereof and (ii) the date that either CCAC or the New Investor Group
cease to Beneficially Own at least five percent of the issued and outstanding
shares of Common Stock, except with respect to Section 2(e), which shall survive
indefinitely.
7. Representations and Warranties. Each Party hereto
represents and warrants as follows:
(a) The Person executing and delivering this Agreement on
behalf of such Party is duly authorized to execute and deliver this Agreement on
behalf of such Party. This Agreement has been duly executed and delivered by
such Party and constitutes the legal, valid and binding obligation of such
Party, enforceable against such Party in accordance with the terms hereof.
(b) The execution and delivery of this Agreement by such Party
does not, and the performance by it of its obligations under this Agreement will
not, violate, conflict with or constitute a breach of, or a default under, any
material agreement or instrument to which such Party is a party or which is
binding on such Party or the assets of such Party, and will not result in the
creation of any lien on, or security interest in, any of the assets of such
Party.
(c) It has good and marketable title to any shares of Common
Stock held by it immediately prior to the date of this Agreement, free and clear
of any claims, liens, encumbrances or security interests whatsoever.
8. Miscellaneous.
(a) Other Stockholders' Agreements. None of the Parties hereto
nor any Permitted Transferees thereof have entered into or shall enter into any
stockholder agreement or arrangement of any kind with any Person with respect to
voting of the Common Stock or that is otherwise inconsistent with the provisions
of this Agreement.
(b) Amendments. This Agreement may be amended only by a
written instrument signed by Parties that represent a majority of the issued and
outstanding shares then Beneficially Owned by each of CCAC and the New Investor
Group.
(c) Successors, Assigns and Transferees. This Agreement shall
be binding upon and shall inure to the benefit of the Parties hereto and their
Permitted Transferees, each of which Permitted Transferees shall agree in
writing to be bound by the terms of this Agreement.
(d) Integration. This Agreement and the documents referred to
herein or delivered pursuant hereto contain the entire understanding of the
parties with respect to its subject matter. There are no restrictions,
agreements, promises, representations, warranties, covenants or undertakings
with respect to the subject matter hereof other than those expressly set forth
herein or therein. This Agreement supersedes all prior agreements and
understandings between the Parties with respect to its subject matter.
(e) Notices. All notices and other communications provided for
hereunder shall be in writing and shall be sent by certified or registered mail,
postage prepaid and return receipt requested, or by overnight courier,
telecopier or hand delivery:
If to CCAC:
Michael Wellesley-Wesley
c/o Camhy Karlinsky & Stein LLP
1740 Broadway
New York, New York 10019
Attn: Daniel I. De Wolf, Esq.
Telephone: (212) 977-6600
Telecopier: (212) 977-8389
with a copy to:
Sheldon D. Camhy, Esq.
Camhy Karlinsky & Stein LLP
1740 Broadway
New York, New York 10019
Telephone: (212) 977-6600
Telecopier: (212) 977-8389
If to the New Investor Group:
WPG Corporate Development Associates IV, L.P.
c/o Weiss, Peck & Greer Private Equity Group
One New York Plaza
New York, NY 10004-1950
Attn: Mr. Wesley W. Lang, Jr.
Telephone: (212) 908-9500
Telecopier: (212) 908-0112
WPG Corporate Development
Associates IV (Overseas), L.P.
c/o Weiss, Peck & Greer Private Equity Group
One New York Plaza
New York, NY 10004-1950
Attn: Mr. Wesley W. Lang, Jr.
Telephone: (212) 908-9500
Telecopier: (212) 908-0112
WPG Enterprise Fund II, L.P.
555 California Street
Suite 4760
San Francisco, CA 94104
Attn: Mr. Gill Cogan
Telephone: (415) 622-6864
Telecopier: (415) 989-5105
Weiss, Peck & Greer Venture Associates III, L.P.
555 California Street
Suite 4760
San Francisco, CA 94104
Attn: Mr. Gill Cogan
Telephone: (415) 622-6864
Telecopier: (415) 989-5105
Westpool Investment Trust plc
Carlton House
33 Robert Adam Street
London W1M5AH
Attn: Mr. Robert A. Rayne
Telephone: 011-44-171-935-3555
Telecopier: 011-44-171-935-3737
Lion Investments Limited
Carlton House
33 Robert Adam Street
London W1M5AH
Attn: Mr. Robert A. Rayne
Telephone: 011-44-171-935-3555
Telecopier: 011-44-171-935-3737
Mr. Charles M. Diker
Weiss, Peck & Greer, L.L.C.
One New York Plaza
New York, NY 10004-1950
Telephone: (212) 908-9500
Telecopier: (212) 908-0176
with a copy to:
Dennis J. Friedman, Esq.
Chadbourne & Parke
30 Rockefeller Plaza
New York, New York 10112-0127
Telephone: (212) 508-5100
Telecopier: (212) 541-5369
or to such other address as any of the parties may designate. All such notices
and communications shall be deemed to have been given or made (i) when delivered
by hand, (ii) one business day after being sent by overnight courier, or (iii)
when telecopied, receipt acknowledged.
(f) Descriptive Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of the terms contained herein.
(g) Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality, and
enforceability of any such provision, paragraph, word, clause, phrase, or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases, or sentences hereof shall not be in any way impaired,
it being intended that all rights, powers, and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
(h) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to contracts made and to be performed therein. The Parties to this
hereby agree to submit to the non-exclusive jurisdiction of the courts of the
State of New York in any action or proceeding arising out of or relating to this
Agreement.
(i) Injunctive Relief. The Parties acknowledge and agree that
a violation of any of the terms of this Agreement will cause the Parties
irreparable injury for which adequate remedy at law is not available.
Accordingly, it is agreed that each Party shall be entitled to an injunction,
restraining order or other equitable relief to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction in the United States or
any state thereof, in addition to any other remedy to which they may be entitled
at law or equity.
(j) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
CC ACQUISITION COMPANY A, L.L.C.
By: s/M.I. Wellesley-Wesley
Name: M.I. Wellesley-Wesley
Title: Vice President
CC ACQUISITION COMPANY B, L.L.C.
By: s/M.I. Wellesley-Wesley
Name: M.I. Wellesley-Wesley
Title: Vice President
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV, L.P.
By: WPG PRIVATE EQUITY PARTNERS,
L.P., its general partner
By: s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: General Partner
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV (OVERSEAS), L.P.
By: WPG CDA IV (OVERSEAS),
LTD., its general partner
By: s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Director
WPG ENTERPRISE FUND II, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By: s/Philip Greer
Name: Philip Greer
Title: General Partner
WEISS, PECK & GREER VENTURE
ASSOCIATES III, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By: s/Philip Greer
Name: Philip Greer
Title: General Partner
WESTPOOL INVESTMENT TRUST PLC
By: s/ Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Attorney-in-Fact
LION INVESTMENTS LIMITED
By: s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Attorney-in-Fact
CHARLES M. DIKER
s/Charles M. Diker
Exhibit E
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of the 25th day of July, 1995, by and between CHYRON
CORPORATION, a New York corporation (the "Company"), and CC ACQUISITION COMPANY
A, L.L.C., a Delaware limited liability company, CC ACQUISITION COMPANY B,
L.L.C., a Delaware limited liability company, WPG CORPORATE DEVELOPMENT
ASSOCIATES, IV, L.P., a Delaware limited partnership, WPG CORPORATE DEVELOPMENT
ASSOCIATES IV (Overseas), L. P., a Cayman Islands exempted limited partnership,
WPG ENTERPRISES FUND II, L.P., a Delaware limited partnership, WEISS, PECK &
GREER VENTURE ASSOCIATES, III, L.P., a Delaware limited partnership, WESTPOOL
INVESTMENT TRUST PLC, a public limited company organized under the laws of
England, LION INVESTMENTS LIMITED, a limited company organized under the laws of
England, CHARLES DIKER, MINT HOUSE NOMINEES LIMITED, PINE STREET VENTURES,
L.L.C., a Delaware limited liability company, ISAAC HERSLY, ALAN I. ANNEX, ILAN
KAUFTHAL, Z FOUR PARTNERS L.L.C., a Delaware limited liability company, and
A.J.L. BEARE, (collectively, the "Purchasers").
R E C I T A L S
WHEREAS, the Purchasers are purchasing 64,414,732 shares of the common
stock, par value $.01 per share, of the Company (the "Shares") from Pesa, Inc.,
a Delaware corporation ("PESA"), pursuant to a Stock Purchase Agreement by and
among CC Acquisition Company A, L.L.C., CC Acquisition Company B, L.L.C., and
PESA, dated as of May 26, 1995 and pursuant to a stock purchase agreement by and
among Sepa Technologies Ltd., Co., John A. Servizio, and CC Acquisition Company
A, L.L.C., dated as of May 26, 1995 (collectively, the "Stock Purchase
Agreements");
WHEREAS, it is in the best interests of the Company that the Stock
Purchase Agreements be closed;
NOW, THEREFORE, in consideration of the mutual premises,
representations, warranties and conditions set forth in this Agreement, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Definitions and References. For purposes of this Agreement, in
addition to the definitions set forth above and elsewhere herein, the following
terms shall have the following meanings:
(a) The term "Commission" shall mean the Securities and Exchange
Commission and any successor agency.
(b) The terms "register", "registered" and "registration" shall refer
to a registration effected by preparing and filing a registration statement
or similar document in compliance with the 1933 Act (as herein defined) and
the declaration or ordering of effectiveness of such registration statement
or document.
(c) For purposes of this Agreement, the term "Registrable Stock"
shall mean (i) the Shares, (ii) any shares of the common stock of the
Company, par value $.01 per share (the "Common Stock") issued as (or
issuable upon the conversion or exercise of any warrant, right, option or
other convertible security which is issued as) a dividend or other
distribution with respect to, or in exchange for, or in replacement of, the
Shares, and (iii) any Common Stock issued by way of stock split of the
Shares. For purposes of this Agreement, any Registrable Stock shall cease
to be Registrable Stock when (w) a registration statement covering such
Registrable Stock has been declared effective and such Registrable Stock
has been disposed of pursuant to such effective registration statement, (x)
such Registrable Stock is sold pursuant to Rule 144 (or any similar
provision then in force) under the 1933 Act, (y) such Registrable Stock has
been otherwise transferred, no stop transfer order affecting such stock is
in effect and the Company has delivered new certificates or other evidences
of ownership for such Registrable Stock not bearing any legend indicating
that such shares have not been registered under the 1933 Act, or (z) such
Registrable Stock is sold by a person in a transaction in which the rights
under the provisions of this Agreement are not assigned.
(d) The term "Holder" shall mean the Purchasers or any transferee or
assignee thereof to whom the rights under this Agreement are assigned in
accordance with the provisions of Section 11 hereof, provided that the
Purchasers or such transferee or assignee shall then own Registrable Stock.
(e) The term "1933 Act" shall mean the Securities Act of 1933, as
amended.
(f) An "affiliate of such Holder" shall mean a person who controls,
is controlled by or is under common control with such Holder, or the spouse
or children (or a trust exclusively for the benefit of the spouse and/or
children) of such Holder, or, in the case of a Holder that is a
partnership, its partners.
(g) The term "Person" shall mean an individual, corporation,
partnership, trust, limited liability company, unincorporated organization
or association or other entity, including any governmental entity.
(h) The term "Requesting Holders" shall mean a Holder or Holders of
in the aggregate of at least five (5) million shares of Registrable Stock.
(i) References in this Agreement to any rules, regulations or forms
promulgated by the Commission shall include rules, regulations and forms
succeeding to the functions thereof, whether or not bearing the same
designation.
2. Demand Registration.
(a) At any time after January 25, 1996, any Requesting Holders may
make a written request to the Company (specifying that it is being made pursuant
to this Section 2) that the Company file a registration statement under the 1933
Act (or a similar document pursuant to any other statute then in effect
corresponding to the 1933 Act) covering the registration of Registrable Stock.
In such event, the Company shall (x) within ten (10) days thereafter notify in
writing all other Holders of Registrable Stock of such request, and (y) use its
best efforts to cause to be registered under the 1933 Act all Registrable Stock
that the Requesting Holders and such other Holders have, within twenty (20) days
after the Company has given such notice, requested be registered. Unless a
majority in interest of the Holders requesting to participate in such
registration shall consent in writing, no other party, including the Company
(but excluding another Holder), shall be permitted to offer securities in
connection with such registration; provided, however, that this limitation shall
not restrict or limit any registrations or rights to participate in any
registration provided under or contained in the Registration Rights Agreement by
and between the Company and Pesa, dated December 27, 1991.
(b) If the Requesting Holders intend to distribute the Registrable
Stock covered by their request by means of an underwritten offering, they shall
so advise the Company as a part of their request pursuant to Section 2(a) above,
and the Company shall include such information in the written notice referred to
in clause (x) of Section 2(a) above. In such event, the Holder's right to
include its Registrable Stock in such registration shall be conditioned upon
such Holder's participation in such underwritten offering and the inclusion of
such Holder's Registrable Stock in the underwritten offering to the extent
provided in this Section 2. All Holders proposing to distribute Registrable
Stock through such underwritten offering shall enter into an underwriting
agreement in customary form with the underwriter or underwriters. Such
underwriter or underwriters shall be selected by a majority in interest of the
Requesting Holders and shall be approved by the Company, which approval shall
not be unreasonably withheld; provided, that all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such Holders and that any or all of the conditions precedent to the obligations
of such underwriters under such underwriting agreement shall be conditions
precedent to the obligations of such Holders; and provided further, that no
Holder shall be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such Holder, the Registrable Stock of such
Holder and such Holder's intended method of distribution and any other
representation required by law or reasonably required by the underwriter.
(c) Notwithstanding any other provision of this Section 2 to the
contrary, if the managing underwriter of an underwritten offering of the
Registrable Stock requested to be registered pursuant to this Section 2 advises
the Requesting Holders in writing that in its opinion marketing factors require
a limitation of the number of shares to be underwritten, the Requesting Holders
shall so advise all Holders of Registrable Stock that would otherwise be
underwritten pursuant hereto, and the number of shares of Registrable Stock that
may be included in such underwritten offering shall be allocated among all such
Holders, including the Requesting Holders, in proportion (as nearly as
practicable) to the amount of Registrable Stock requested to be included in such
registration by each Holder at the time of filing the registration statement;
provided, that in the event of such limitation of the number of shares of
Registrable Stock to be underwritten, the Holders shall be entitled to an
additional demand registration pursuant to this Section 2. If any Holder of
Registrable Stock disapproves of the terms of the underwriting, such Holder may
elect to withdraw by written notice to the Company, the managing underwriter and
the Requesting Holders. The securities so withdrawn shall also be withdrawn from
registration.
(d) Notwithstanding any provision of this Agreement to the contrary,
the Company shall not be required to effect a registration pursuant to this
Section 2 during the period starting with the fourteenth day immediately
preceding the date of an anticipated filing by the Company of, and ending on a
date ninety (90) days following the effective date of, a registration statement
pertaining to a public offering of securities for the account of the Company;
provided, that the Company shall actively employ in good faith all reasonable
efforts to cause such registration statement to become effective; and provided
further, that the Company's estimate of the date of filing such registration
statement shall be made in good faith.
(e) The Company shall be obligated to effect and pay for a total of
only four (4) registrations pursuant to this Section 2, unless increased
pursuant to Section 2(c) hereof; provided, that a registration requested
pursuant to this Section 2 shall not be deemed to have been effected for
purposes of this Section 2(e), unless (i) it has been declared effective by the
Commission, (ii) if it is a shelf registration, it has remained effective for
the period set forth in Section 4(b), (iii) the offering of Registrable Stock
pursuant to such registration is not subject to any stop order, injunction or
other order or requirement of the Commission (other than any such action
prompted by any act or omission of the Holders), and (iv) no limitation of the
number of shares of Registrable Stock to be underwritten has been required
pursuant to Section 2(c) hereof.
3. Incidental Registration. If at any time the Company determines
that it shall file a registration statement under the 1933 Act (other than a
registration statement on a Form S-4 or S-8 or filed in connection with an
exchange offer or an offering of securities solely to the Company's existing
stockholders) on any form that would also permit the registration of the
Registrable Stock and such filing is to be on its behalf and/or on behalf of
selling holders of its securities for the general registration of its common
stock to be sold for cash, at each such time the Company shall promptly give
each Holder written notice of such determination setting forth the date on which
the Company proposes to file such registration statement, which date shall be no
earlier than forty (40) days from the date of such notice, and advising each
Holder of its right to have Registrable Stock included in such registration.
Upon the written request of any Holder received by the Company no later than
twenty (20) days after the date of the Company's notice, the Company shall use
its best efforts to cause to be registered under the 1933 Act all of the
Registrable Stock that each such Holder has so requested to be registered. If,
in the written opinion of the managing underwriter or underwriters (or, in the
case of a non-underwritten offering, in the written opinion of the placement
agent, or if there is none, the Company), the total amount of such securities to
be so registered, including such Registrable Stock, will exceed the maximum
amount of the Company's securities which can be marketed (i) at a price
reasonably related to the then current market value of such securities, or (ii)
without otherwise materially and adversely affecting the entire offering, then
the amount of Registrable Stock to be offered for the accounts of Holders shall
be reduced pro rata to the extent necessary to reduce the total amount of
securities to be included in such offering to the recommended amount; provided,
that if securities are being offered for the account of other Persons as well as
the Company, such reduction shall not represent a greater fraction of the number
of securities intended to be offered by Holders than the fraction of similar
reductions imposed on such other Persons other than the Company over the amount
of securities they intended to offer.
4. Obligations of the Company. Whenever required under Section 2 to
use its best efforts to effect the registration of any Registrable Stock, the
Company shall, as expeditiously as possible:
(a) prepare and file with the Commission, not later than sixty (60)
days after receipt of a request to file a registration statement with
respect to such Registrable Stock, a registration statement on any form for
which the Company then qualifies or which counsel for the Company shall
deem appropriate and which form shall be available for the sale of such
issue of Registrable Stock in accordance with the intended method of
distribution thereof, and use its best efforts to cause such registration
statement to become effective as promptly as practicable thereafter;
provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will (i) furnish to one
counsel selected by the Requesting Holders copies of all such documents
proposed to be filed, and (ii) notify each such Holder of any stop order
issued or threatened by the Commission and take all reasonable actions
required to prevent the entry of such stop order or to remove it if
entered;
(b) prepare and file with the Commission 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 for a period of not less than one hundred twenty (120)
days or such shorter period which will terminate when all Registrable Stock
covered by such registration statement has been sold (but not before the
expiration of the forty (40) or ninety (90) day period referred to in
Section 4(3) of the 1933 Act and Rule 174 thereunder, if applicable), and
comply with the provisions of the 1933 Act with respect to the disposition
of all securities covered by such registration statement during such period
in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(c) furnish to each Holder and any underwriter of Registrable Stock
to be included in a registration statement copies of such registration
statement as filed and each amendment and supplement thereto (in each case
including all exhibits thereto), the prospectus included in such
registration statement (including each preliminary prospectus) and such
other documents as such Holder may reasonably request in order to
facilitate the disposition of the Registrable Stock owned by such Holder;
(d) use its best efforts to register or qualify such Registrable
Stock under such other securities or blue sky laws of such jurisdictions as
any selling Holder or any underwriter of Registrable Stock reasonably
requests, and do any and all other acts which may be reasonably necessary
or advisable to enable such Holder to consummate the disposition in such
jurisdictions of the Registrable Stock owned by such Holder; 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 paragraph 4(d), (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such
jurisdiction;
(e) use its best efforts to cause the Registrable Stock covered by
such registration statement to be registered with or approved by such other
governmental agencies or other authorities as may be necessary by virtue of
the business and operations of the Company to enable the selling Holders
thereof to consummate the disposition of such Registrable Stock;
(f) notify each selling Holder of such Registrable Stock and any
underwriter thereof, at any time when a prospectus relating thereto is
required to be delivered under the 1933 Act (even if such time is after the
period referred to in Section 4(b)), of the happening of any event as a
result of which the prospectus included in such registration statement
contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances being made not misleading,
and prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Stock, such
prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances being made not
misleading;
(g) make available for inspection by any selling Holder, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any such
seller or underwriter (collectively, the "Inspectors"), all financial and
other records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), and cause the Company's officers, directors
and employees to supply all information reasonably requested by any such
Inspector, as shall be reasonably necessary to enable them to exercise
their due diligence responsibility, in connection with such registration
statement. Records or other information which the Company determines, in
good faith, to be confidential and which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records or other information is necessary to avoid or
correct a misstatement or omission in the registration statement, or (ii)
the release of such Records or other information is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction. Each
selling Holder shall, upon learning that disclosure of such Records or
other information is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at the Company's expense, to
undertake appropriate action to prevent disclosure of the Records or other
information deemed confidential;
(h) furnish, at the request of any Requesting Holder, on the date
that such shares of Registrable Stock are delivered to the underwriters for
sale pursuant to such registration or, if such Registrable Stock is not
being sold through underwriters, on the date that the registration
statement with respect to such shares of Registrable Stock becomes
effective, (1) a signed opinion, dated such date, of the legal counsel
representing the Company for the purposes of such registration, addressed
to the underwriters, if any, and if such Registrable Stock is not being
sold through underwriters, then to the Requesting Holders as to such
matters as such underwriters or the Requesting Holders, as the case may be,
may reasonably request and as would be customary in such a transaction; and
(2) a letter dated such date, from the independent certified public
accountants of the Company, addressed to the underwriters, if any, and if
such Registrable Stock is not being sold through underwriters, then to the
Requesting Holders and, if such accountants refuse to deliver such letter
to such Holder, then to the Company (i) stating that they are independent
certified public accountants within the meaning of the 1933 Act and that,
in the opinion of such accountants, the financial statements and other
financial data of the Company included in the registration statement or the
prospectus, or any amendment or supplement thereto, comply as to form in
all material respects with the applicable accounting requirements of the
1933 Act, and (ii) covering such other financial matters (including
information as to the period ending not more than five (5) business days
prior to the date of such letter) with respect to the registration in
respect of which such letter is being given as the Requesting Holders may
reasonably request and as would be customary in such a transaction;
(i) enter into customary agreements (including if the method of
distribution is by means of an underwriting, an underwriting agreement in
customary form) and take such other actions as are reasonably required in
order to expedite or facilitate the disposition of the Registrable Stock to
be so included in the registration statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, but not later than eighteen
(18) months after the effective date of the registration statement, an
earnings statement covering the period of at least twelve (12) months
beginning with the first full month after the effective date of such
registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the 1933 Act; and
(k) use its best efforts to cause all such Registrable Stock to be
listed on the New York Stock Exchange and/or any other securities exchange
on which similar securities issued by the Company are then listed, or
traded on the National Association of Securities Dealers Automated
Quotations System, if such listing or trading is then permitted under the
rules of such exchange or system, respectively.
The Company may require each selling Holder of Registrable Stock as
to which any registration is being effected to furnish to the Company such
information regarding the distribution of such Registrable Stock as the Company
may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 4(f) hereof, such
Holder will forthwith discontinue disposition of Registrable Stock pursuant to
the registration statement covering such Registrable Stock until such Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 4(f) hereof, and, if so directed by the Company, such Holder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the prospectus
covering such Registrable Stock current at the time of receipt of such notice.
In the event the Company shall give any such notice, the Company shall extend
the period during which such registration statement shall be maintained
effective pursuant to this Agreement (including the period referred to in
Section 4(b)) by the number of days during the period from and including the
date of the giving of such notice pursuant to Section 4(f) hereof to and
including the date when each selling Holder of Registrable Stock covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by Section 4(f) hereof.
5. Holdback Agreement.
(a) Restrictions on Public Sale by Holder. To the extent not
inconsistent with applicable law, each Holder whose Registrable Stock is
included in a registration statement agrees not to effect any public sale or
distribution of the issue being registered or a similar security of the Company,
or any securities convertible into or exchangeable or exercisable for such
securities, including a sale pursuant to Rule 144 under the 1933 Act, during the
fourteen (14) days prior to, and during the ninety (90) day period beginning on,
the effective date of such registration statement (except as part of the
registration), if and to the extent requested by the Company in the case of a
non-underwritten public offering or if and to the extent requested by the
managing underwriter or underwriters in the case of an underwritten public
offering.
(b) Restrictions on Public Sale by the Company and Others. The
Company agrees (i) not to effect any public sale or distribution of any
securities similar to those being registered, or any securities convertible into
or exchangeable or exercisable for such securities, during the fourteen (14)
days prior to, and during the ninety (90) day period beginning on, the effective
date of any registration statement in which Holders are participating (except as
part of such registration), if and to the extent requested by the Holders in the
case of a non-underwritten public offering or if and to the extent requested by
the managing underwriter or underwriters in the case of an underwritten public
offering; and (ii) that any agreement entered into after the date of this
Agreement pursuant to which the Company issues or agrees to issue any securities
convertible into or exchangeable or exercisable for such securities (other than
pursuant to an effective registration statement) shall contain a provision under
which holders of such securities agree not to effect any public sale or
distribution of any such securities during the periods described in (i) above,
in each case including a sale pursuant to Rule 144 under the 1933 Act.
6. Expenses of Registration. All expenses incurred in connection with
each registration pursuant to Sections 2 and 3 of this Agreement, excluding
underwriters' discounts and commissions, but including, without limitation, all
registration, filing and qualification fees, word processing, duplicating,
printers' and accounting fees (including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance), exchange listing fees or National Association of Securities Dealers
fees, messenger and delivery expenses, all fees and expenses of complying with
securities or blue sky laws, fees and disbursements of counsel for the Company,
and the reasonable fees and disbursements of one (1) counsel for the selling
Holders shall be paid by the Company. The selling Holders shall bear and pay the
underwriting commissions and discounts applicable to the Registrable Stock
offered for their account in connection with any registrations, filings and
qualifications made pursuant to this Agreement.
7. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify,
to the full extent permitted by law, each Holder, its officers, directors and
agents and each Person who controls such Holder (within the meaning of the 1933
Act) against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statement therein (in case of a prospectus or
preliminary prospectus, in the light of the circumstances under which they were
made) not misleading, except insofar as the same are caused by or contained in
any information with respect to such Holder furnished in writing to the Company
by such Holder expressly for use therein or by such Holder's failure to deliver
a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company's compliance with Section 4(c) hereof. The
Company will also indemnify any underwriters of the Registrable Stock, their
officers and directors and each Person who controls such underwriters (within
the meaning of the 1933 Act) to the same extent as provided above with respect
to the indemnification of the selling Holders.
(b) Indemnification by Holders. In connection with any registration
statement in which a Holder is participating, each such Holder will furnish to
the Company in writing such information with respect to such Holder as the
Company reasonably requests for use in connection with any such registration
statement or prospectus and agrees to indemnify, to the extent permitted by law,
the Company, its directors and officers and each Person who controls the Company
(within the meaning of the 1933 Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact or any omission or alleged omission of a material fact required
to be stated in the registration statement, prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or necessary to make the
statements therein (in the case of a prospectus or preliminary prospectus, in
the light of the circumstances under which they were made) not misleading, to
the extent, but only to the extent, that such untrue statement or omission is
contained in any information with respect to such Holder so furnished in writing
by such Holder. Notwithstanding the foregoing, the liability of each such Holder
under this Section 7(b) shall be limited to an amount equal to the initial
public offering price of the Registrable Stock sold by such Holder, unless such
liability arises out of or is based on willful misconduct of such Holder.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such Person of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which such Person will claim indemnification or contribution
pursuant to this Agreement and, unless in the reasonable judgment of such
indemnified party, a conflict of interest may exist between such indemnified
party and the indemnifying party with respect to such claim, permit the
indemnifying party to assume the defense of such claims with counsel reasonably
satisfactory to such indemnified party. Whether or not such defense is assumed
by the indemnifying party, the indemnifying party will not be subject to any
liability for any settlement made without its consent (but such consent will not
be unreasonably withheld). Failure by such Person to provide said notice to the
indemnifying party shall itself not create liability except to the extent of any
injury caused thereby. No indemnifying party will 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. If the
indemnifying party is not entitled to, or elects not to, assume the defense of a
claim, it will not be obligated to pay the fees and expenses of more than one
(1) counsel with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other such indemnified parties with respect to such claim, in
which event the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels.
(d) Contribution. If for any reason the indemnity provided for in
this Section 7 is unavailable to, 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, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying party on the one hand
and the indemnified party on the other, or (ii) if the allocation provided by
clause (i) 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. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified parties; and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 7(c), any legal or
other fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7 (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
If indemnification is available under this Section 7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Sections 7(a) and (b) without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section 7.
8. Participation in Underwritten Registrations. No Holder may
participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's securities on the basis provided in any
underwriting arrangements approved by the Holders entitled hereunder to approve
such arrangements, and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Rule 144. The Company covenants that it will file the reports
required to be filed by it under the 1933 Act and the Securities Exchange Act of
1934, as amended, and the rules and regulations adopted by the Commission
thereunder; and it will take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Stock without registration under the 1933 Act within the
limitation of the exemptions provided by (a) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any Holder,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
10. Transfer of Registration Rights. The registration rights of any
Holder under this Agreement with respect to any Registerable stock may be
transferred to any transferee of such Registrable Stock; provided that such
transfer may otherwise be effected in accordance with applicable securities
laws; provided further, that the transferring Holder shall give the Company
written notice at or prior to the time of such transfer stating the name and
address of the transferee and identifying the securities with respect to which
the rights under this Agreement are being transferred; provided further, that
such transferee shall agree in writing, in form and substance satisfactory to
the Company, to be bound as a Holder by the provisions of this Agreement; and
provided further, that such assignment shall be effective only if immediately
following such transfer the further disposition of such securities by such
transferee is restricted under the 1933 Act. Except as set forth in this Section
10, no transfer of Registrable Stock shall cause such Registrable Stock to lose
such status.
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the Holders in this Agreement. Except for the Registration
Rights Agreement by and between the Company and Pesa dated December 27, 1991,
the Company has not previously entered into any agreement with respect to any of
its securities granting any registration rights to any Person, other than
agreements which by reason of lapse of time do not require the Company as a
practical matter to register any securities for any Person.
(b) Remedies. Each Holder, in addition to being entitled to exercise
all rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive (to the extent permitted by law) the defense in any action for specific
performance that a remedy of law would be adequate.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of the Holders of at least a majority of the Registrable Stock
then outstanding affected by such amendment, modification, supplement, waiver or
departure.
(d) Successors and Assigns. Except as otherwise expressly provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties hereto.
Nothing in this Agreement,, express or implied, is intended to confer upon any
Person other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
(e) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
contracts made and to be performed wholly within that state, without regard to
the conflict of law rules thereof.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g) Headings. The headings in this Agreement are used for convenience
of reference only and are not to be considered in construing or interpreting
this Agreement.
(h) Notices. Any notice required or permitted under this Agreement
shall be given in writing and shall be delivered in person or by telecopy or by
air courier guaranteeing no later than second business day delivery, directed to
(a) the Company at the address set forth below its signature hereof or (b) to a
Holder at the address therefor as set forth in the Company's records. Any party
may change its address for notice by giving 10 days advance written notice to
the other parties. Every notice or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered, or
on the date actually received, if sent by telecopy or overnight courier service,
with receipt acknowledged.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the Holders
shall be enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
(k) Attorneys' Fees. In an action or proceeding brought to enforce
any provision of this Agreement where any provision hereof is validly asserted
as a defense, the successful party shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy.
(l) Enforceability. This Agreement shall remain in full force and
effect notwithstanding any breach or purported breach of, or relating to, the
Stock Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
CHYRON CORPORATION,
By:s/ John A. Servizio
Name: John A. Servizio
Title: CEO
5 Hub Drive
Melville, New York 11087
Attention: Secretary
CC ACQUISITION COMPANY A, L.L.C.
By:s/ Michael Wellesley-Wesley
Name: Michael Wellesley-Wesley
Title: Vice President
CC ACQUISITION COMPANY B, L.L.C.
By:s/ Michael Wellesley-Wesley
Name: Michael Wellesley-Wesley
Title: Vice President
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV, L.P.
By: WPG PRIVATE EQUITY PARTNERS,
L.P., its general partner
By:s/ Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: General Partner
WPG CORPORATE DEVELOPMENT ASSOCIATES
IV (OVERSEAS), L.P.
By: WPG CDA IV (OVERSEAS), LTD.,
its general partner
By:s/ Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Director
WPG ENTERPRISE FUND II, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By:s/ Philip Greer
Name: Philip Greer
Title: General Partner
WEISS, PECK & GREER VENTURE
ASSOCIATES III, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By:s/ Philip Greer
Name: Philip Greer
Title: General Partner
WESTPOOL INVESTMENT TRUST PLC
By:s/ Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Attorney-in-Fact
LION INVESTMENTS LIMITED
By:s/ Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Attorney-in-Fact
s/ Charles M. Diker
CHARLES M. DIKER
MINT HOUSE NOMINEES LIMITED
By:s/ Michael Wellesley-Wesley
Name: Michael Wellesly-Wesley
Title: Attorney-in-Fact
PINE STREET VENTURES, L.L.C.
By:s/ Michael Wellesly-Wesley
Name: Michael Wellesly-Wesley
Title: Attorney-in-Fact
Michael Wellesly-Wesley Attorney-in-Fact
ISAAC HERSLY
Michael Wellesley-Wesley Attorney-in-Fact
ALAN I. ANNEX
Michael Wellesley-Wesley Attorney-in-Fact
ILAN KAUFTHAL
Z FOUR PARTNERS L.L.C.
By: s/ Michael Wellesly-Wesley Attorney-in-Fact
Name: Michael Wellesly-Wesley
Title: Attorney-in-Fact
s/ Michael Wellesly-Wesley Attorney-in-Fact
A.J.L. BEARE
Exhibit F
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of July 25, 1995 ("Escrow Agreement"),
is by and among Pesa, Inc., a Delaware corporation ("PESA"); CC Acquisition
Company B, L.L.C., a Delaware limited liability company ("CCACB"), on behalf of
CCACB and the parties listed on Schedule A hereto (the "CCACB Group"), WPG
Corporate Development Associates IV, L.P., a Delaware limited partnership
("WPG"), and the parties listed on Schedule B hereto (the "WPG Group"), and
First Union National Bank of North Carolina, a national banking association, as
Escrow Agent hereunder ("Escrow Agent"). CCACB, the parties listed on Schedule
A, WPG, and the parties listed on Schedule B are collectively referred to as the
"Purchasers".
BACKGROUND
A. PESA, CC Acquisition Company A, L.L.C., a Delaware limited
liability company ("CCACA"), and CCACB have entered into a Stock Purchase
Agreement (the "Underlying Agreement"), dated as of May 26, 1995, pursuant to
which CCACA and CCACB will acquire common stock, par value $.01 per share (the
"Common Stock") of Chyron Corporation (the "Company"). CCACB has assigned a
portion of its rights to the other Purchasers. On the Closing Date, PESA shall
deliver to the Purchasers stock certificates representing 29,414,732 shares of
Common Stock (the "Acquisition Shares"). On the Closing Date, the Purchasers
shall deposit such Acquisition Shares with the Escrow Agent.
B. Escrow Agent has agreed to accept, hold, and distribute the
Escrowed Property deposited with it and any dividends or distributions thereon
in accordance with the terms of this Escrow Agreement.
C. PESA and the Purchasers have each appointed the Representatives (as
defined below) to represent them for all purposes in connection with the
Escrowed Property, as defined below, to be deposited with Escrow Agent.
D. In order to establish the escrow of the Escrowed Property and to
effect the provisions of the Underlying Agreement, the parties hereto have
entered into this Escrow Agreement.
STATEMENT OF AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, for
themselves, their successors and assigns, hereby agree as follows:
1. Definitions. The following terms shall have the following meanings
when used herein:
"CCACB Representative" shall mean Michael Wellesley-Wesley or Daniel
DeWolf, severally, or any other person designated in a writing signed by
CCACB and delivered to the Escrow Agent, the PESA Representative and the
WPG Representative in accordance with the notice provisions of this Escrow
Agreement, to act as CCACB's and the CCACB Group's representative under
this Escrow Agreement.
"Escrowed Property" shall mean (i) the Acquisition Shares and the
stock certificates representing the Acquisition Shares deposited with
Escrow Agent pursuant to this Agreement, together with any dividends and
other income or distributions thereon, and (ii) the payments provided for
in Section 1.1(c)(ii) of the Underlying Agreement deposited with the Escrow
Agent pursuant to this Agreement.
"Escrow Period" shall mean the period commencing on the date hereof
and ending on the date all Escrowed Property is delivered out of Escrow.
"Joint Written Direction" shall mean a written direction executed by
the Representatives and directing Escrow Agent to disburse all or a portion
of the Escrowed Property or to take or refrain from taking an action
pursuant to this Escrow Agreement.
"PESA Escrow Account" shall mean the PESA, Inc. Escrow Account
established at the PESA Escrow Agent pursuant to the escrow agreements by
and among PESA, the PESA Escrow Agent and each of Dresdner Bank AG and
Extebank, of even dates herewith.
"PESA Escrow Agent" shall mean Banco Santander Puerto Rico, New York.
"PESA Representative" shall mean Miguel S. Moraga or Eduardo Perez de
Villages, severally, or any other person designated in a writing signed by
PESA and delivered to the Escrow Agent, CCACB Representative and the WPG
Representative in accordance with the notice provisions of this Escrow
Agreement, to act as PESA's Representative under this Escrow Agreement.
"Representatives" shall mean the PESA Representative, the CCACB
Representative and the WPG Representative.
"WPG Representative" shall mean WPG or any other person or entity
designated in a writing signed by WPG and delivered to the Escrow Agent,
the Pesa Representative and the CCACB Representative in accordance with the
notice provisions of this Escrow Agreement, to act as the WPG Group's
representative under this Escrow Agreement.
2. Appointment of and Acceptance by Escrow Agent. PESA, the
Purchasers, and the Representatives on behalf of PESA and the Purchasers hereby
appoint Escrow Agent as escrow agent hereunder. Escrow Agent hereby accepts such
appointment and, upon receipt of the Escrowed Property in accordance with
Section 3 below, agrees to hold and distribute the Escrowed Property in
accordance with this Escrow Agreement.
3. Deposit of Escrowed Property.
(a) On the date hereof, the Purchasers shall deposit with the Escrow
Agent a stock certificate or stock certificates representing 29,414,732 shares
of Common Stock of the Company, duly endorsed in blank or accompanied with stock
powers duly endorsed in blank. Until delivered out of escrow, each of the
Purchasers shall retain its respective right to vote its Acquisition Shares and
to any dividend rights related thereto.
(b) The Escrow Agent acknowledges receipt of the Acquisition Shares,
and will hold such Escrowed Property safely in a segregated account.
(c) Notwithstanding Section 1.1(c)(ii) of the Underlying Agreement,
the parties hereto agree that the payments described therein will be deposited
(pursuant to the schedule of installments therein) with the Escrow Agent,
instead of being paid directly to PESA.
4. Disbursement of Escrowed Property. The Escrowed Property shall be
disbursed and distributed as follows:
(a) For each $1,000 paid by a Purchaser to the Escrow Agent, the
Escrow Agent shall promptly deliver (i) to such Purchaser 2,083 Acquisition
Shares and (ii) to the PESA Escrow Account said funds paid by such
Purchaser. Simultaneously with any payment to the Escrow Agent, the CCACB
Representative and the WPG Representative shall deliver a notice to the
Escrow Agent specifying to which of the Purchasers such Acquisition Shares
shall be released with a copy of such notice to the PESA Representative.
(b) Within five (5) business days after receipt of an affidavit from
the PESA Representative stating that (i) there has occurred a payment
default pursuant to Section 1.1(c)(iv) of the Underlying Agreement, (ii)
that the thirty (30) day cure period specified in Section 1.1(c)(iv) of the
Underlying Agreement has expired without such default being cured, and
(iii) the dollar amount of the default, the Escrow Agent shall promptly
deliver to the PESA Escrow Account 2,083 Acquisition Shares (with their
attached stock powers in blank) for each unpaid $1,000 of said noticed
defaulted payment. The PESA Representative shall also send a copy of such
affidavit to the CCACB Representative and the WPG Representative.
(c) The Escrow Agent shall, at any time, deliver such part of the
Escrowed Property as shall be set forth in an affidavit signed by the PESA
Escrow Agent, the CCACB Representative and the WPG Representative.
(d) The Escrow Agent shall, at any time, deliver such part of the
Escrowed Property as shall be set forth in any order, decree, or judgment
of a court of competent jurisdiction which has been finally affirmed on
appeal or which, by lapse of time or otherwise, is not subject to appeal.
All distributions of the Escrowed Property shall be subject to the
claims of Escrow Agent and the Indemnified Parties (as defined below) pursuant
to Section 9 below.
5. Delivery Into Court. If, at any time, there shall exist any
dispute between PESA, the Purchasers, or the Representatives with respect to the
holding or disposition of any portion of the Escrowed Property or any other
obligations of Escrow Agent hereunder, or if at any time the Escrow Agent is
unable to determine, to Escrow Agent's sole satisfaction, the proper disposition
of any portion of the Escrowed Property or Escrow Agent's proper actions with
respect to its obligations hereunder, or if the Representatives have not, within
thirty (30) days of the furnishing by Escrow Agent of a notice of resignation
pursuant to Section 7 hereof, appointed a successor Escrow Agent to act
hereunder, then Escrow Agent may, in its sole discretion, take either or both or
the following actions:
(a) suspend the performance of any of its obligations under this
Escrow Agreement until such dispute or uncertainty shall be resolved to the
sole satisfaction of Escrow Agent or until a successor Escrow Agent shall
have been appointed (as the case may be); provided, however, that Escrow
Agent shall continue to hold the Escrowed Property safely until directed as
to distribution by the court; and/or
(b) petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in New York, New
York, for instructions with respect to such dispute or uncertainty, and
disposition in accordance with the instructions of such court.
The Escrow Agent shall have no liability to PESA, the Purchasers,
their respective shareholders or any other person with respect to any such
suspension of performance or disbursement or distribution into court,
specifically including any liability or claimed liability that may arise, or be
alleged to have arisen, out of or as a result of any delay in the delivery of
the Escrowed Property or any delay in or with respect to any other action
required or requested of Escrow Agent.
6. Intentionally Deleted.
7. Resignation and Removal of Escrow Agent. Escrow Agent may resign
from the performance of its duties hereunder at any time by giving ten (10) days
prior written notice to the Representatives or may be removed, with or without
cause, by the Representatives, acting jointly by furnishing a Joint Written
Direction to Escrow Agent, at any time by the giving of ten (10) days prior
written notice to Escrow Agent. Such resignation or removal shall take effect
upon the appointment of a successor Escrow Agent as provided hereinbelow. Upon
any such notice of resignation or removal, the Representatives jointly shall
appoint a successor Escrow Agent hereunder, which shall be a United States
commercial bank, trust company, or other financial institution with a combined
capital and surplus in excess of $10,000,000 and not affiliated with PESA or the
Purchasers. Upon the acceptance in writing of any appointment as Escrow Agent
hereunder by a successor Escrow Agent, such successor Escrow Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Escrow Agent, and the retiring Escrow Agent shall be
discharged from its duties and obligations under this Escrow Agreement, but
shall not be discharged from any liability for actions taken as Escrow Agent
hereunder prior to such succession. After any retiring Escrow Agent's
resignation or removal, the provisions of this Escrow Agreement shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Escrow Agent under this Escrow Agreement.
8. Liability of Escrow Agent. Escrow Agent shall have no liability or
obligation with respect to the Escrowed Property except for Escrow Agent's
willful misconduct or gross negligence. Escrow Agent's sole responsibility shall
be for the safekeeping and distribution of the Escrowed Property in accordance
with the terms of this Escrow Agreement. Escrow Agent shall have no implied
duties or obligations and shall not be charged with knowledge or notice of any
fact or circumstance not specifically set forth herein. Escrow Agent may rely
upon any instrument, not only as to its due execution, validity and
effectiveness, but also as to the truth and accuracy of any information
contained therein, which Escrow Agent shall, in good faith, believe to be
genuine, to have been signed or presented by the person or parties purporting to
sign the same, and to conform to the provisions of this Escrow Agreement. In no
event shall Escrow Agent be liable for incidental indirect, special,
consequential or punitive damages. Escrow Agent shall not be obligated to take
any legal action or commence any proceeding in connection with the Escrowed
Property, this Escrow Agreement, or the Underlying Agreement, or to appear in,
prosecute or defend any such legal action or proceeding. Escrow Agent may
consult legal counsel selected by it in the event of any dispute or question as
to the construction of any of the provisions hereof or of any other agreement or
of its duties hereunder, and shall incur no liability and shall be fully
protected from any liability whatsoever in acting in accordance with the opinion
or instruction of such counsel. PESA, CCACB, and the WPG Group, jointly and
severally, shall promptly pay, upon demand, the reasonable fees and expenses of
any such counsel. The parties agree that the payment by Pesa or CCACB, or the
WPG Group for the reasonable fees and expenses of the Escrow Agent's legal
counsel hereunder shall not impair, limit, modify, or affect, the respective
rights and obligations as between PESA, CCACB, the WPG Group and the other
Purchasers and the respective rights of each of PESA, CCACB, and the WPG Group
and the other Purchasers as against each other.
9. Indemnification of Escrow Agent. From and at all times after the
date of this Escrow Agreement, PESA, CCACB, and the WPG Group jointly and
severally, shall, to the fullest extent permitted by law and to the extent
provided herein, indemnify and hold harmless Escrow Agent and each director,
officer, employee, attorney, agent and affiliate of Escrow Agent (collectively,
the "Indemnified Parties") against any and all actions, (whether or not valid),
losses, damages, liabilities, costs and expenses of any kind or nature
whatsoever (including, without limitation, reasonable attorneys' fees, costs and
expenses) incurred by or asserted against any of the Indemnified Parties from
and after the date hereof, whether direct, indirect or consequential as a result
of or arising from or in any way relating to any claim, demand, suit, action or
proceeding (including any inquiry or investigation) by any person, whether
threatened or initiated, asserting a claim for any legal or equitable remedy
against any person under any statute or regulation, including, but not limited
to, any federal or state securities laws, or under any common law or equitable
cause or otherwise) arising from or in connection with the negotiation,
preparation, execution, performance or failure of performance of this Escrow
Agreement or any transactions contemplated herein, whether or not any such
Indemnified Party is a party to any such action, proceeding, suit or the target
of any such inquiry or investigation; provided, however, that no Indemnified
Party shall have the right to be indemnified hereunder for any liability finally
determined by a court of competent jurisdiction, subject to no further appeal,
to have resulted solely from the gross negligence or willful misconduct of such
Indemnified Party. If any such action or claim shall be brought or asserted
against any Indemnified Party, such Indemnified Party shall promptly notify
PESA, CCACB, and the WPG Group in writing, and PESA, CCACB, and the WPG Group
shall assume the defense thereof, including the employment of counsel and the
payment of all expenses. Such Indemnified Party shall, in its sole discretion,
have the right to employ separate counsel in any such action and to participate
in the defense thereof, and the fees and expenses of such counsel shall be paid
by such Indemnified Party unless (a) PESA and/or CCACB and/or the WPG Group
agree to pay such fees and expenses, or (b) PESA and/or CCACB and/or the WPG
Group shall fail to assume the defense of such action or proceeding or shall
fail, in the reasonable discretion of such Indemnified Party, to employ counsel
satisfactory to the Indemnified Party in any such action or proceeding, or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both Indemnified Party and PESA and/or CCACB and/or the WPG
Group, and Indemnified Party shall have been advised by counsel that there may
be one or more legal defenses available to it which are different from or
additional to those available to PESA or CCACB or the WPG Group. All such fees
and expenses payable by PESA and/or CCACB and/or the WPG Group pursuant to the
foregoing sentence shall be paid from time to time as incurred, both in advance
of and after the final disposition of such action or claim. All of the foregoing
losses, damages, costs and expenses of the Indemnified Parties shall be payable
by PESA and CCACB and the WPG Group, jointly and severally, upon demand by such
Indemnified Party. The obligations of PESA and CCACB and the WPG Group under
this Section 9 shall survive any termination of this Escrow Agreement and the
resignation or removal of Escrow Agent.
The parties agree that the payment by PESA or CCACB or the WPG Group
of any claim by Escrow Agent for indemnification hereunder in respect of a claim
by Escrow Agent for indemnification shall not impair, limit, modify, or affect,
the respective rights and obligations as between PESA, CCACB, the WPG Group, and
the other Purchasers and the respective rights of each of PESA, CCACB, the WPG
Group and the other Purchasers as against each other.
10. Fees and Expenses of Escrow Agent. PESA, CCACB and the WPG Group
shall compensate Escrow Agent for its services hereunder in accordance with
Schedule C attached hereto, except that the WPG Group shall not be responsible
for any payments due at Closing as defined in the Underlying Agreement. PESA,
CCACB and the WPG Group shall reimburse Escrow Agent for all of its reasonable
out-of-pocket expenses, including attorneys' fees, travel expenses, telephone
and facsimile transmission costs, postage (including express mail and overnight
delivery charges), copying charges and the like. All of the compensation and
reimbursement obligations set forth in this Section 10 shall be payable by PESA,
CCACB and the WPG Group, jointly and severally, upon demand by Escrow Agent. The
obligations of PESA, CCACB and the WPG Group under this Section 10 shall survive
any termination of this Escrow Agreement and the resignation or removal of
Escrow Agent.
11. Representations and Warranties.
(a) PESA makes the following representations and warranties to Escrow
Agent:
(i) PESA is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware, and has full power
and authority to execute and deliver this Escrow Agreement and to perform
its obligations hereunder.
(ii) This Escrow Agreement has been duly approved by all necessary
corporate action of PESA, including any necessary shareholder approval, has
been executed by duly authorized officers of PESA, and constitutes a valid
and binding agreement of PESA, enforceable against PESA in accordance with
its terms.
(iii) The execution, delivery, and performance by PESA of this Escrow
Agreement is in accordance with the Underlying Agreement and will not
violate, conflict with, or cause a default under the articles of
incorporation or bylaws of PESA, any applicable law or regulation, any
court order or administrative ruling or decree to which PESA is a party, or
any of its property is subject, or any agreement, contract, indenture, or
other binding arrangement, including, without limitation, the Underlying
Agreement, to which PESA is a party or any of its property is subject.
(iv) Each of Miguel S. Moraga and Eduardo Perez de Villages,
severally, has been duly appointed to act as the representative of PESA
hereunder and has full power and authority to execute, deliver, and perform
this Escrow Agreement, to execute and deliver any joint written direction
or affidavit, to amend, modify or waive any provision of this Agreement and
to take any and all other actions as the PESA Representative under this
Agreement, all without further consent or direction from, or notice to,
PESA or any other party.
(v) No party other than the parties hereto have, or shall have, any
lien, claim or security interest in the Escrowed Property or any part
thereof. No financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest in or describing
(whether specifically or generally) the Escrowed Property or any part
thereof.
(b) CCACB makes the following representations and warranties to
Escrow Agent:
(i) CCACB is a limited liability company duly organized, validly
existing, and in good standing under the laws of the State of Delaware, and
has full power and authority to execute and deliver this Escrow Agreement
and to perform its obligations hereunder.
(ii) This Escrow Agreement has been duly approved by all necessary
action of CCACB, including any necessary member approval, has been executed
by duly authorized officers of CCACB, and constitutes a valid and binding
agreement of CCACB, enforceable against CCACB in accordance with its terms.
(iii) The execution, delivery, and performance by CCACB of this
Escrow Agreement is in accordance with the Underlying Agreement and will
not violate, conflict with, or cause a default under the charter documents
of CCACB, any applicable law or regulation, any court order or
administrative ruling or decree to which CCACB is a party or any of its
property is subject, or any agreement, contract, indenture, or other
binding arrangement, including, without limitation, the Underlying
Agreement, to which CCACB is a party or any of its property is subject.
(iv) Each of Messrs. Wellesley-Wesley and DeWolf, severally, has been
duly appointed to act as the representative of the CCACB Group hereunder
and has full power and authority to execute, deliver, and perform this
Escrow Agreement, to execute and deliver any Joint Written Direction or
affidavit, to amend, modify, or waive any provision of this Agreement, and
to take any and all other actions as the CCACB Representative under this
Agreement, all without further consent or direction from, or notice to, the
CCACB or any other party.
(v) No party other than the parties hereto have, or shall have, any
lien, claim, or security interest in the Escrowed Property or any part
thereof. No financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest in or describing
(whether specifically or generally) the Escrowed Property or any part
thereof.
(c) The WPG Group makes the following representations and warranties
to Escrow Agent:
(i) WPG is a limited partnership duly organized, validly existing, and
in good standing under the laws of the State of Delaware, and has full
power and authority to execute and deliver this Escrow Agreement and to
perform its obligations hereunder.
(ii) This Escrow Agreement has been duly approved by all necessary
action of WPG, including any necessary partnership approval, has been
executed by duly authorized officers of WPG, and constitutes a valid and
binding agreement of WPG, enforceable against WPG in accordance with its
terms.
(iii) The execution, delivery, and performance by WPG of this Escrow
Agreement will not violate, conflict with, or cause a default under its
partnership agreement, any applicable law or regulation, any court order or
administrative ruling or decree to which WPG is a party or any of its
property is subject, or any agreement, contract, indenture, or other
binding arrangement, to which WPG is a party or any of its property is
subject.
(iv) No party other than the parties hereto have, or shall have, any
lien, claim, or security interest in the Escrowed Property or any part
thereof. No financing statement under the Uniform Commercial Code is on
file in any jurisdiction claiming a security interest in or describing
(whether specifically or generally) the Escrowed Property or any part
thereof.
12. By execution of this Escrow Agreement, each member of the WPG
Group appoints WPG to act as the representative of the WPG Group hereunder and
WPG has full power and authority to execute, deliver, and perform this Escrow
Agreement, to execute and deliver any Joint Written Direction or affidavit, to
amend, modify, or waive any provision of this Agreement, and to take any and all
other actions as the WPG Representative under this Agreement, all without
further consent or direction from, or notice to, the WPG Group or any other
party.
13. Consent to Jurisdiction and Venue. In the event that any party
hereto commences a lawsuit or other proceeding relating to or arising from this
Agreement, the parties hereto agree that the United States District Court for
the Southern District of New York shall have the sole and exclusive jurisdiction
over any such proceeding. If such Federal Court lacks jurisdiction, the parties
agree that the State courts in New York County, State of New York shall have
sole and exclusive jurisdiction. Any of these courts shall be proper venue for
any such lawsuit or judicial proceeding and the parties hereto waive any
objection to such venue. The parties hereto consent to and agree to submit to
the jurisdiction of any of the courts specified herein and agree to accept
service or process to vest personal jurisdiction over them in any of these
courts.
14. Notice. All notices and other communications hereunder shall be
in writing and shall be deemed to have been validly served, given or delivered
three (3) days after deposit in the United States mails, by certified mail with
return receipt requested and postage prepaid; or upon receipt when delivered
personally; and addressed to the party to be notified as follows:
If to PESA at:
Pesa Inc.
35 Pinelawn Road, Suite 99E
Melville, New York 11747
Attention: Miguel S. Moraga
With a copy (which copy shall not constitute notice) to:
John C. Jost, Esq.
Dow, Lohnes & Albertson
1255 Twenty-third Street, N.W.
Washington, D.C. 20037
If to CCACB Group at:
Michael Wellesley-Wesley
c/o Camhy Karlinsky & Stein LLP
1740 Broadway
New York, New York 10019
Attention: Daniel DeWolf, Esq.
with a copy (which copy shall not constitute notice) to:
Sheldon D. Camhy, Esq.
Camhy Karlinsky & Stein LLP
1740 Broadway - 16th Floor
New York, New York 10019-4315
If to WPG Group at:
Wesley W. Lang Jr.
c/o Weiss, Peck & Greer
Private Equity Group
One New York Plaza
New York, New York 10004-1950
with a copy (which copy shall not constitute notice to:
Dennis J. Friedman, Esq.
Chadbourne & Parke
30 Rockefeller Plaza
New York, New York 10112-0127
If to the Escrow Agent at:
First Union National Bank of
North Carolina, as Escrow Agent
Corporate Trust Department
230 South Tryon Street, 8th Floor
Charlotte, North Carolina 28288-1179
Attention: Ted Weiner
Facsimile Number: (704) 383-7316
or to such other address as each party may designate for itself by like notice.
15. Amendment or Waiver. This Escrow Agreement may be changed,
waived, discharged or terminated only by a writing signed by the Representatives
and Escrow Agent. No delay or omission by any party in exercising any right with
respect hereto shall operate as a waiver. A waiver on any one occasion shall not
be construed as a bar to, or waiver of, any right or remedy on any future
occasion.
16. Severability. To the extent any provision of this Escrow
Agreement is prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Escrow Agreement.
17. Governing Law. This Escrow Agreement shall be construed and
interpreted in accordance with the internal laws of the State of New York
without giving effect to the conflict of laws principles thereof.
18. Entire Agreement. This Escrow Agreement constitutes the entire
agreement between the parties relating to the holding, investment and
disbursement of the Escrowed Property and sets forth in their entirety the
obligations and duties of Escrow Agent with respect to the Escrowed Property.
19. Binding Effect. All of the terms of this Escrow Agreement, as
amended from time to time, shall be binding upon, inure to the benefit of and be
enforceable by the respective heirs, successors and assigns of PESA and the
Purchasers, the Representatives and Escrow Agent.
20. Execution in Counterparts. This Escrow Agreement and any joint
written direction may be executed in one or more counterparts, which when so
executed shall constitute one and the same agreement or direction.
21. Termination. Upon the delivery out of escrow of all Escrowed
Property, this Escrow Agreement shall terminate and Escrow Agent shall have no
further obligation or liability whatsoever with respect to this Escrow Agreement
or the Escrowed Property.
22. Other Actions. The Escrow Agent and any stockholder, director,
officer or employee of the Escrow Agent may buy, sell, and deal in any of the
securities of PESA or the Purchasers and become pecuniarily interested in any
action in which PESA or the Purchasers may be interested, and contract and lend
money to PESA or the Purchasers and otherwise act as fully and freely as though
it were not Escrow Agent under this Agreement. Nothing herein shall preclude the
Escrow Agent from acting in any other capacity for PESA or the Purchasers or for
any other entity.
23. No Consent. The execution of this Escrow Agreement shall not be
construed as the consent of PESA to any assignment by CCACB of its rights, or
delegation by CCACB of its duties or liabilities, with respect to the Underlying
Agreement other than the Assignment and Assumption Agreement by and among the
WPG Group and the CCACB Group dated July 25, 1995.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed under seal as of the date first above written.
PESA, INC.
By: s/Miguel S. Moraga
Name: Miguel S. Moraga
Title: C.F.O. and Treasurer
CC ACQUISITION COMPANY B, L.L.C.
By: s/M.I. Wellesley-Wesley
Name: M.I. Wellesley-Wesley
Title: Vice President
PESA REPRESENTATIVES
s/Miguel S. Moraga
Name: Miguel S. Moraga
s/Eduardo Perez de Villegas
Name: Eduardo Perez de Villegas
CCACB REPRESENTATIVES
s/M.I. Wellesley-Wesley
Name: Michael Wellesley-Wesley
s/Daniel DeWolf
Name: Dan DeWolf
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV, L.P.
By: WPG PRIVATE EQUITY PARTNERS,
L.P., its general partner
By: s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: General Partner
WPG CORPORATE DEVELOPMENT ASSOCIATES
IV (OVERSEAS), L.P.
By: WPG CDA IV (OVERSEAS), LTD.,
its general partner
By: s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Director
WPG ENTERPRISE FUND II, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By: s/Philip Greer
Name: Philip Greer
Title: General Partner
WEISS, PECK & GREER VENTURE
ASSOCIATES III, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By: s/Philip Greer
Name: Philip Greer
Title: General Partner
WESTPOOL INVESTMENT TRUST PLC
By: s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Attorney-in-Fact
LION INVESTMENTS LIMITED
By: s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Attorney-in-Fact
s/Charles M. Diker
CHARLES M. DIKER
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, as Escrow Agent
By:s/Roy Davis
Name: Roy Davis
Title: Vice President
<PAGE>
SCHEDULE A
A. ANNEX
A.J.L. BEARE
I. HERSLY
I. KAUFTHAL
MINT HOUSE NOMINEES LIMITED
PINE STREET VENTURES, L.L.C.
Z FOUR PARTNERS L.L.C.
<PAGE>
SCHEDULE B
- Weiss, Peck & Greer Venture Associates III, L.P.
- WPG Enterprise Fund II, L.P.
- WPG Corporate Development Associates, IV, L.P.
- WPG Corporate Development Associates IV (Overseas),
L.P.
- Westpool Investment Trust plc
- Lion Investments Limited
- Charles M. Diker
<PAGE>
SCHEDULE C
Fees Payable to Escrow Agent
<PAGE>
SCHEDULE D
[Letterhead of Banco Santander Puerto Rico]
TO WHOM IT MAY CONCERN:
Wire Transfer Information:
Bank Name: Bankers Trust Co., New York, NY
ABA Number: 021-001033
Favor of: Banco Santander Puerto Rico
New York Branch
Account No.: 04-202-232
For further credit:
Account No.: 300 310 7883 PESA, INC. ESCROW ACCOUNT
Should you have any questions, please do not hesitate to contact our office.
Sincerely,
s/Jorge A. Saavedra
Jorge A. Saavedra
Manager, New York Branch
Exhibit G
Rule 13d-1(f) AGREEMENT
The undersigned persons (together, the "Reporting Persons"),
on this 4th day of August, 1995, do hereby agree and consent to the joint filing
on their behalf of this Schedule 13D in connection with their beneficial
ownership of Common Stock of Chyron Corporation. This Agreement may be executed
in counterparts.
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV, L.P.
By: WPG PRIVATE EQUITY PARTNERS,
L.P., its general partner
By: /s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: General Partner
WPG CORPORATE DEVELOPMENT ASSOCIATES
IV (OVERSEAS), L.P.
By: WPG CDA IV (OVERSEAS), LTD.,
its general partner
By: /s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Director
WPG ENTERPRISE FUND II, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By: /s/ Philip Greer
Name: Philip Greer
Title: General Partner
WEISS, PECK & GREER VENTURE
ASSOCIATES III, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By: /s/ Philip Greer
Name: Philip Greer
Title: General Partner
WESTPOOL INVESTMENT TRUST PLC
By: /s/ R.F.J. Spier
Name: R.F.J. Spier
Title: Director
LION INVESTMENTS LIMITED
By: /s/ R.F.J. Spier
Name: R.F.J. Spier
Title: Director
/s/ Charles M. Diker
CHARLES M. DIKER
WPG PRIVATE EQUITY PARTNERS, L.P.
By: /s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: General Partner
WPG CDA IV (OVERSEAS), L.P.
By: /s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Director
WPG PRIVATE EQUITY PARTNERS (OVERSEAS), L.P.
By: /s/Wesley W. Lang, Jr.
Name: Wesley W. Lang, Jr.
Title: Director
WPG VENTURE PARTNERS III, L.P.
By: /s/ Philip Greer
Name: Philip Greer
Title: General Partner
/s/ Steven N. Hutchinson
STEVEN N. HUTCHINSON
/s/Wesley W. Lang, Jr.
WESLEY W. LANG, JR.
/s/ Philip Greer
PHILIP GREER
/s/ Gill Cogan
GILL COGAN
