<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. _____)*
CHYRON CORPORATION
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(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
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(Title of Class of Securities)
171605 10 8
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(CUSIP Number)
ALAN I. ANNEX, ESQ.
CAMHY KARLINSKY & STEIN LLP
1740 BROADWAY, 16TH FLOOR
NEW YORK, NEW YORK 10019
(212) 977-6600
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
MAY 26, 1995
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(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 this statement /x/. (A fee
is not required only if the filing 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 the
disclosures provided in a prior cover page.
The information required in 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>
CUSIP No. 171605 10 8 SCHEDULE 13D Page 2 of 10 Pages
--------- --- ---
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(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
C.C. Acquisition Company A, L.L.C.
I.R.S. Identification No. 13-3834164
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(2) Check the Appropriate Box if a Member (a) /x/
of a Group* (b) / /
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(3) SEC Use Only
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(4) Source of Funds* WC
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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(6) Citizenship or Place of Organization
Delaware
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Number of Shares (7) Sole Voting 44,000,000 shares
Beneficially Owned Power
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting -0-
Power
--------------------------------------------------
(9) Sole Dispositive 44,000,000 shares
Power
--------------------------------------------------
(10) Shared Dispositive -0-
Power
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
44,000,000
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
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(13) Percent of Class Represented by Amount in Row (11) 50.89%
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(14) Type of Reporting Person*
00
- -------------------------------------------------------------------------------
*SEE INSTRUCTION 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 2 of 10 Pages
<PAGE>
CUSIP No. 171605 10 8 SCHEDULE 13D Page 3 of 10 Pages
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(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
C.C. Acquisition Company B, L.L.C.
I.R.S. Identification No. 13-3834165
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(2) Check the Appropriate Box if a Member (a) /x/
of a Group* (b) / /
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(3) SEC Use Only
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(4) Source of Funds* WC
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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(6) Citizenship or Place of Organization
Delaware
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Number of Shares (7) Sole Voting 29,414,732 shares
Beneficially Owned Power
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting -0-
Power
--------------------------------------------------
(9) Sole Dispositive 29,414,732 shares
Power
--------------------------------------------------
(10) Shared Dispositive -0-
Power
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
29,414,732
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
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(13) Percent of Class Represented by Amount in Row (11) 34.02%
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(14) Type of Reporting Person*
00
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*SEE INSTRUCTION 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 3 of 10 Pages
<PAGE>
CUSIP No. 171605 10 8 SCHEDULE 13D Page 4 of 10 Pages
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(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Allan R. Tessler
S.S. No. ###-##-####
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(2) Check the Appropriate Box if a Member (a) /x/
of a Group* (b) / /
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(3) SEC Use Only
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(4) Source of Funds*
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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(6) Citizenship or Place of Organization
United States
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Number of Shares (7) Sole Voting 73,414,732 shares
Beneficially Owned Power
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting -0-
Power
--------------------------------------------------
(9) Sole Dispositive 73,414,732 shares
Power
--------------------------------------------------
(10) Shared Dispositive -0-
Power
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
73,414,732
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
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(13) Percent of Class Represented by Amount in Row (11) 84.91%
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(14) Type of Reporting Person*
IN
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*SEE INSTRUCTION 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 4 of 10 Pages
<PAGE>
CUSIP No. 171605 10 8 SCHEDULE 13D Page 5 of 10 Pages
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(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Michael Wellesley-Wesley
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(2) Check the Appropriate Box if a Member (a) /x/
of a Group* (b) / /
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(3) SEC Use Only
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(4) Source of Funds*
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
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(6) Citizenship or Place of Organization
Great Britain
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Number of Shares (7) Sole Voting 73,414,732
Beneficially Owned Power
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting -0-
Power
--------------------------------------------------
(9) Sole Dispositive -0-
Power
--------------------------------------------------
(10) Shared Dispositive -0-
Power
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(11) Aggregate Amount Beneficially Owned by Each Reporting Person
73,414,732
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11) 84.91%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
IN
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*SEE INSTRUCTION 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 5 of 10 Pages
<PAGE>
ITEM 1. SECURITY AND ISSUER
This statement relates to the common stock, par value $.01 per share (the
"Common Stock"), of Chyron Corporation, a New York corporation (the "Company"),
which has its principal executive offices at 5 Hub Drive, Melville, New York
11747.
ITEM 2. IDENTITY AND BACKGROUND
This statement is being filed by 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"), each of which has an
address in care of Camhy Karlinsky & Stein LLP, 1740 Broadway, New York, New
York 10019-4315 and each of which was formed for the purpose of effecting the
transactions described herein. The name, business address, and present
principal occupation or employment of each executive officer and controlling
person of each of CCACA and CCACB are set forth below:
NAME BUSINESS ADDRESS OCCUPATION
Allan R. Tessler International Financial Co-Chairman and Co-Chief
Group, Inc. Executive Officer of
3490 Clubhouse Drive Data Broadcasting
Box 7443 Corporation
Jackson, Wyoming 83001
Michael Wellesley-Wesley Parrot House Consultant
Holtye Cowden
Kent TN897ED England
Mr. Tessler is the President and sole manager of each of CCACA and CCACB.
Mr. Wellesley-Wesley is a Vice President of each of CCACA and CCACB.
During the last five years none of the persons listed above (i) has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is 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 violation with respect to such laws.
Mr. Tessler is a citizen of the United States and Mr. Wellesley-Wesley is a
citizen of Great Britain.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
To effect the transactions described herein Mr. Tessler, A.E.L.P., Inc., a
corporation owned by Mr. Tessler, and other persons contributed an aggregate of
$5,000,000 from their own available funds as capital contributions to CCACA.
CCACA has not yet determined how it will finance the amount of additional funds
needed to effect the Closing (as defined in Item 4).
Page 6 of 10 Pages
<PAGE>
ITEM 4. PURPOSE OF TRANSACTION
On May 26, 1995, CCACA and CCACB entered into a stock purchase agreement
(the "Pesa Agreement") by and among CCACA, CCACB, and Pesa, Inc. ("Pesa") with
respect to the purchase of an aggregate of 59,414,732 shares of Common Stock as
follows: (i) 30,000,000 shares of Common Stock to be purchased by CCACA for an
aggregate purchase price of $15,600,000, 10,000,000 shares (the "First Tranche
of Shares") of which shares were delivered on May 26, 1995 concurrently with the
payment by CCACA of $5,000,000 to Pesa and 20,000,000 of which shares were
placed in escrow as described below; and (ii) 29,414,732 shares of Common Stock
to be purchased by CCACB for an aggregate purchase price of $14,119,071.36
payable in installments commencing six months following the closing (the
"Closing") of the transaction contemplated by the Pesa Agreement and the Sepa
Agreement (as defined below).
On May 26, 1995, CCACA also entered into a stock purchase agreement (the
"Sepa Agreement") by and among CCACA, Sepa Technologies Ltd., Co. ("Sepa"), and
John A. Servizio with respect to the purchases by CCACA of an aggregate of
5,000,000 shares of Common Stock and the receipt by CCACA of a right of first
refusal to acquire 9,000,000 shares of Common Stock.
In connection with the aforementioned transactions, the Company entered
into a Registration Rights Agreement (the "Registration Rights Agreement") with
CCACA, dated as of May 26, 1995, pursuant to which CCACA has, under certain
circumstances, demand and incidental (piggyback) registration rights with
respect to the First Tranche of Shares.
Also in connection with the Pesa Agreement, CCACA entered into an escrow
agreement (the "Pesa Escrow") by and among Pesa, CCACA, and First Union National
Bank of North Carolina, a national banking association, as Escrow Agent (the
"Escrow Agent") with respect to 20,000,000 shares of Common Stock. Of such
20,000,000 shares placed in escrow pursuant to the Pesa Agreement, 10,000,000 of
such shares (the "Second Tranche of Shares") have been registered in the name of
CCACA, and CCACA has, as of May 26, 1995, sole voting power with respect to the
Second Tranche of Shares, subject until the Closing, to forfeiture of such
ownership and voting rights under certain terms of the Pesa Agreement. Of the
balance of the 10,000,000 shares (the "Third Tranche of Shares") placed in
escrow pursuant to the Pesa Agreement, Pesa retains the sole voting power until
the Closing.
In connection with the Sepa Agreement CCACA entered into an escrow
agreement (the "Sepa Escrow") by and among Sepa, CCACA, and the Escrow Agent
with respect to 14,000,000 shares of Common Stock. Until the Closing, Sepa
retains the sole voting power with respect to such 14,000,000 shares.
Copies of the Pesa Agreement, the Sepa Agreement, the Registration Rights
Agreement, the Pesa Escrow and the Sepa Escrow are filed herewith under the Item
7 as Exhibits A, B, C, D, and E, respectively, and are incorporated herein in
their entirety by this reference thereto.
On May 26, 1995, Michael Wellesley-Wesley was elected a director of the
Company.
It is presently expected that the Closing will occur on or about July 17,
1995. It is presently expected that immediately following the Closing designees
of CCACA will control the Board of Directors of the Company.
Except as set forth above, none of CCACA, CCACB, Tessler, or Wellesley-
Wesley have any present plans or proposals which relate to or would result in:
Page 7 of 10 Pages
<PAGE>
(a) The acquisition by any person of additional securities of the Company,
or the disposition of securities of the Company;
(b) An extraordinary corporation transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its subsidiaries;
(c) A sale or transfer of a material amount of assets of the Company or of
any of its subsidiaries;
(d) Any change in the present board of directors or management of the
Company, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend policy
of the Company;
(f) Any other material change in the Company's business or corporate
structure;
(g) Changes in the Company's charter, by-laws or instruments corresponding
thereto or other actions which may impede the acquisition of control of the
Company by any person;
(h) Causing a class of securities of the Company to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(i) A class of equity securities of the Company becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934, as amended; or
(j) Any action similar to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) and (b)
<TABLE>
<CAPTION>
Entity Percentage Sole Voting Power Shared Voting Sole Disposition Shared Disposition
of Class Power Power Power
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
CCACA (1) 50.89% 44,000,000(1) - 44,000,000(1) -
CCACB (2) 34.02% 29,414,732(2) - 29,414,732(2) -
Allan R. Tessler 84.91% 73,414,732(3) - 73,414,732(3) -
Michael Wellesley-Wesley 84.91% 73,414,732(4) - - -
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Of such shares, 10,000,000 shares are held of record by CCACA as of
May 26, 1995, 10,000,000 are held of record by CCACA and are being held under
the Pesa Escrow for delivery to CCACA at the Closing, 10,000,000 are held of
record by Pesa and are being held under the Pesa Escrow for delivery to CCACA at
the Closing, 14,000,000 are held of record by Sepa of which 5,000,000 will be
delivered to CCACA at the Closing and 9,000,000 would be delivered to CCACA upon
an exercise of a right of first refusal described in the Sepa Agreement. See
Item 4 above.
Page 8 of 10 Pages
<PAGE>
(2) All of such shares are held of record by Pesa but will be transferred
into the record name of CCACB at the Closing and delivered into escrow in the
name of CCACB for delivery to CCACB upon payment of the purchase price thereof
in accordance with the Pesa Agreement. See Item 4 above.
(3) Mr. Tessler is the President and sole manager of each of CCACA and
CCACB. Mr. Tessler disclaims beneficial ownership of such shares.
(4) Mr. Wellesley-Wesley is a Vice President of each of CCACA and CCACB.
Mr. Wellesley-Wesley disclaims beneficial ownership of such shares.
(b) No transactions in the Company's securities by any of the referenced
persons have been effected during the past sixty (60) days.
(c) None of the referenced 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.
(d) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
See Item 4 above.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
A. Stock Purchase Agreement, dated as of May 26, 1995, by and among
CCACA, CCACB, and Pesa.
B. Stock Purchase Agreement dated as of May 26, 1995, by and among CCACA,
Sepa, and John A. Servizio.
C. Registration Rights Agreement, dated as of May 26, 1995, by and
between the Company and CCACA.
D. Escrow Agreement, dated as of May 26, 1995 by and among Pesa, CCACA,
and First Union National Bank of North Carolina, a national banking
association, as Escrow Agent.
E. Escrow Agreement, dated as of May 26, 1995 by and among Sepa, CCACA,
and First Union National Bank of North Carolina, a national banking
association, as Escrow Agent.
F. Joint Filing Agreement, among CCACA, CCACB, Allan R. Tessler and
Michael Wellesley-Wesley.
Page 9 of 10 Pages
<PAGE>
SIGNATURE
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.
June 1, 1995
--------------------------
Date CC ACQUISITION COMPANY A, L.L.C.
By: s/s Michael Wellesley-Wesley
----------------------------
Michael Wellesley-Wesley
Vice President
CC ACQUISITION COMPANY B, L.L.C.
By: s/s Michael Wellesley-Wesley
----------------------------
Michael Wellesley-Wesley
Vice President
/s/ Allan R. Tessler
--------------------------------
ALLAN R. TESSLER
s/s Michael Wellesley-Wesley
----------------------------
MICHAEL WELLESLEY-WESLEY
Page 10 of 10 Pages
<PAGE>
STOCK PURCHASE AGREEMENT Exhibit "A"
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is being made this
26th day of May, 1995, by and among CC Acquisition Company A, L.L.C., a Delaware
limited liability company ("Acquisition Company A"), CC Acquisition Company B,
L.L.C., a Delaware limited liability company ("Acquisition Company B"), and
Pesa, Inc. (the "Seller" or "PESA"), a Delaware corporation. Acquisition
Company A and Acquisition Company B are hereinafter collectively referred to as
the Purchasers.
W I T N E S S E T H :
WHEREAS, the Seller owns beneficially and of record 59,414,732 shares
(the "Acquisition Shares") of the common stock, par value $.01 per share (the
"Common Stock"), of Chyron Corporation (the "Company"), a New York corporation;
and
WHEREAS, the Purchasers desire to acquire the Acquisition Shares and
the Seller desires to sell the Acquisition Shares, 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. PURCHASE AND SALE.
SECTION 1.1 TERMS OF PURCHASE AND SALE.
(a) Acquisition Company A shall acquire 30 million shares of the
Common Stock of the Company in exchange for the aggregate purchase price of
Fifteen Million Six Hundred Thousand Dollars ($15,600,000) U.S., in
accordance with the terms and provisions set forth below:
<PAGE>
(i) On the date hereof, Acquisition Company A shall deliver to
the Seller by wire transfer, in immediately available
funds, to an account in the United States designated by
the Seller, the sum of Five Million Dollars ($5,000,000)
U.S.
(ii) On the date hereof, the Seller shall deliver to
Acquisition Company A, a stock certificate or certificates
representing 10 million Acquisition Shares (the "First
Tranche of Shares") duly endorsed or accompanied by stock
powers duly endorsed for transfer to Acquisition
Company A. The First Tranche of Shares shall be delivered
to Acquisition Company A 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
Seller shall cause the Company to grant to Acquisition
Company A demand registration rights, on a one-time basis,
and piggy-back registration rights as such rights relate
to the First Tranche of Shares. In furtherance of such
registration rights, on the date hereof, the Seller shall
cause the Company to enter into a registration rights
agreement (the "CCACA Registration Rights Agreement"),
mutually acceptable to the Seller and Acquisition Company
A.
(iii) On the date hereof, the Seller shall deliver to
Acquisition Company A, a stock certificate or stock
certificates representing 10 million Acquisition Shares
(the "Second Tranche of Shares"), duly endorsed or
accompanied with stock powers duly endorsed for transfer
to Acquisition Company A.
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<PAGE>
The Second Tranche of Shares shall be delivered to
Acquisition Company A by the Seller 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. Immediately upon the valid transfer of the
Second Tranche of Shares to Acquisition Company A,
Acquisition Company A shall deliver and deposit the Second
Tranche of Shares duly endorsed in blank or accompanied by
stock powers duly endorsed in blank by Acquisition Company
A, into a separate escrow account (the "Escrow Account")
to be held in the custody of First Union National Bank of
North Carolina, a national banking association, as escrow
agent (the "Escrow Agent"). The Escrow Agent shall hold
and dispose of the Second Tranche of Shares in accordance
with the terms and provisions of the Escrow Agreement (the
"Escrow Agreement"), which Escrow Agreement shall be
executed and delivered simultaneously with this Agreement.
The Escrow Agreement shall be mutually acceptable to the
Seller and Acquisition Company A. Acquisition Company A
shall retain the right to vote the Second Tranche of
Shares.
(iv) On the date hereof, the Seller shall deliver to the Escrow
Agent, a stock certificate or certificates representing 10
million Acquisition Shares (the "Third Tranche of Shares")
duly endorsed in blank or accompanied by stock powers duly
endorsed in blank by the Seller. The Third Tranche of
Shares shall be delivered to the Escrow Agent by the
Seller free and
-3-
<PAGE>
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 of
Acquisition Company A resulting from the terms and
provisions of this Agreement. Until delivered out of
Escrow, the Seller shall retain the right to vote the
Third Tranche of Shares.
(v) At the Closing (as defined in Section 1.2 hereof),
Acquisition Company A shall deliver to the Seller by wire
transfer, in immediately available funds to an account in
the United States designated by the Seller, the sum of Ten
Million Six Hundred Thousand Dollars ($10,600,000) U.S.
(vi) At the Closing, the Seller shall cause the Escrow Agent to
deliver to Acquisition Company A, stock certificates
representing the Second Tranche of Shares and the Third
Tranche of Shares, duly endorsed or accompanied with stock
powers duly endorsed for such transfer. At the Closing,
the Second Tranche of Shares and the Third Tranche of
Shares shall be delivered to Acquisition Company A 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.
(b) The Escrow Agreement shall provide that in the event that the
Closing does not occur due to a breach of this Agreement (after any
applicable notice and cure period) by Acquisition Company A, the Escrow
Agent shall deliver the Second Tranche of Shares and the Third Tranche of
Shares to the Seller. The Escrow Agreement shall further provide that in
the
-4-
<PAGE>
event that the Closing does not occur due to a breach of this Agreement
(after any applicable notice and cure period) by the Seller, the Escrow
Agent shall deliver the Second Tranche of Shares to Acquisition Company A
and the Third Tranche of Shares to the Seller. The Escrow Agreement shall
further provide that in the event that this Agreement is abandoned or
mutually terminated, the Escrow Agent shall deliver the Second Tranche of
Shares and the Third Tranche of Shares to the Seller.
(c) At the Closing, Acquisition Company B shall acquire 29,414,732
shares of the Common Stock of the Company in exchange for the aggregate
purchase price of $14,119,071.36, in accordance with the terms and
provisions set forth below:
(i) At the Closing, the Seller shall deliver to Acquisition
Company B a stock certificate or certificates representing
29,414,732 Acquisition Shares duly endorsed or accompanied
by stock powers duly endorsed for transfer to Acquisition
Company B. Such Acquisition Shares shall be delivered to
Acquisition Company B 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; and ten
million of such Acquisition Shares shall be "Registrable
Stock" as such term is defined under that certain
Registration Rights Agreement (the "Registration Rights
Agreement"), dated December 27, 1991, between the Company
and PESA.
(ii) Acquisition Company B shall make payment for such
Acquisition Shares by wire transfer, in immediately
available funds, to an account in the
-5-
<PAGE>
United States designated by the Seller, in accordance with
the schedule set forth below:
A. No payments for the six month period immediately
following the Closing.
B. Thereafter, for a period of 12 months commencing on the
six month anniversary of the Closing, Acquisition
Company B shall pay the sum of $480,000 per month.
C. Thereafter, for a period of 12 months, Acquisition
Company B shall pay the sum of $360,000 per month.
D. Thereafter, for a period of 16 months, Acquisition
Company B shall pay the sum of $240,000 per month.
E. Thereafter, Acquisition Company B shall make a final
payment of $199,071.70 on the 47th month anniversary of
the Closing.
(iii) At the Closing, as security for Acquisition Company B's
payment obligation for the Acquisition Shares, Acquisition
Company B shall pledge its Acquisition Shares to the
Seller and deliver such Acquisition Shares to the Escrow
Agent, duly endorsed in blank or accompanied with stock
powers duly endorsed in blank by Acquisition Company B to
be held as collateral; such Acquisition Shares shall be
delivered to the Escrow Agent by Acquisition Company B
free and clear of all liens, security interests, pledges,
charges, claims of creditors, encumbrances, stockholders'
agreements, voting trusts, and adverse claims of any kind
-6-
<PAGE>
or nature whatsoever, except for any claims or liens
resulting from the terms and provisions of this Agreement.
Acquisition Company B shall retain the right to vote such
Acquisition Shares. At the Closing, Acquisition
Company B, the Seller, and the Escrow Agent shall execute
and deliver a mutually acceptable Pledge and Escrow
Agreement (the "Pledge Agreement"). Pursuant to the
Pledge Agreement, each $1,000 payment obligation of
Acquisition Company B shall be secured by 2083 Acquisition
Shares. Each monthly payment obligation shall be
severally enforceable. Upon payment of each $1,000 by
Acquisition Company B, 2083 Acquisition Shares shall be
released by the Escrow Agent and delivered to Acquisition
Company B, 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.
(iv) If Acquisition Company B fails to make a monthly payment
when due as provided in this Section 1.1(c), Acquisition
Company B shall have the right to cure such payment
default within 30 days after written notice thereof from
the Seller. If Acquisition Company B fails to cure such
payment default within such 30 day cure period after
written notice thereof, the Escrow Agent shall release and
deliver to the Seller those particular Acquisition Shares
pledged as security as a set-off for that particular
monthly payment, free and clear of all liens, security
interests, pledges, charges, claims of creditors,
encumbrances, stockholders'
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agreements, voting trusts and adverse claims of any nature
whatsoever. The delivery of Acquisition Shares by the
Escrow Agent to the Seller shall release Acquisition
Company B from any further obligation of making that
particular monthly payment relating to those particular
Acquisition Shares released to the Seller, and shall be
the sole remedy of the Seller with respect to payment
defaults under this Section 1.1(c).
(v) A payment default (after the lapse of any applicable
notice and cure period) of a particular monthly payment by
Acquisition Company B shall not be deemed a breach or
default of any other monthly payment obligation of
Acquisition Company B provided in this Section 1.1(c), and
shall not affect the release and delivery by the Escrow
Agent of Acquisition Shares to Acquisition Company B
against additional monthly payments made by Acquisition
Company B.
SECTION 1.2 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 17, 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.
SECTION 1.3 OTHER TRANSACTIONS.
(a) On the date hereof, the Seller shall cause the Board of Directors
of the Company to appoint Michael Wellesley-Wesley as a director.
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(b) On the Closing Date, the Seller shall cause its remaining
designees to resign, seriatim, from the Board of Directors of the Company,
and in their place, the Seller shall cause the Board of Directors of the
Company to appoint designees selected by the Purchasers.
II. REPRESENTATIONS AND WARRANTIES OF SELLER.
The Seller represents and warrants to the Purchasers as follows:
SECTION 2.1 SHARE OWNERSHIP.
(a) Except as disclosed on Schedule 2.1 hereof, the Acquisition
Shares are owned by the Seller 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. Upon transfer to the Purchasers of the Acquisition
Shares, either directly or through the escrow arrangements, the Seller will
convey to the Purchasers good title to the Acquisition Shares, 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.
(b) Upon transfer of the First Tranche of Shares, the First Tranche
of Shares shall be "Registrable Stock" as defined in the CCACA Registration
Rights Agreement and registration rights shall be attributable to the First
Tranche of Shares, subject to the terms and conditions of the CCACA
Registration Rights Agreement.
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SECTION 2.2 LITIGATION AND CLAIMS.
There is no litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation pending, (to the Seller's
knowledge) threatened, or (to the Seller's knowledge) in prospect therefor, that
would prohibit the transactions contemplated pursuant to this Agreement.
SECTION 2.3 CORPORATE EXISTENCE.
The Seller is a corporation duly organized, validly existing, and in
good standing under the laws of Delaware.
SECTION 2.4 CORPORATE AUTHORITY.
The Seller has all requisite corporate power and authority to execute,
deliver, and perform this Agreement and the instruments and documents
contemplated hereby. All necessary corporate proceedings of the Seller 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 the Seller, is the legal,
valid, and binding obligation of the Seller, and is enforceable as to the Seller
in accordance with its terms.
SECTION 2.5 RESTRICTIONS.
Except as disclosed on Schedule 2.1 hereof, the Seller is under no
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 the Seller or any of its affiliated or
controlling entities for the execution, delivery, or performance of this
Agreement by the Seller. The transfer of the Acquisition Shares to the
Purchasers
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has been approved by the requisite Spanish courts and governmental authorities
and cannot be rescinded by any Spanish judicial or governmental authority.
III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
The Purchasers, jointly and severally, represent and warrant to the
Seller as follows:
SECTION 3.1 ORGANIZATION.
Each of the Purchasers is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of Delaware.
SECTION 3.2 AUTHORITY TO BUY.
Each of the Purchasers has the requisite power and authority to
execute, deliver, and perform this Agreement and the instruments and documents
contemplated hereby. All necessary company proceedings of each Purchaser 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 Purchaser, is the
legal, valid, and binding obligation of each Purchaser, and is enforceable as to
each Purchaser in accordance with its terms.
SECTION 3.3 LITIGATION AND CLAIMS.
There is no litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation pending, (to each Purchaser's
knowledge) threatened, or (to each Purchaser's
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knowledge) in prospect therefor, that would prohibit the transactions
contemplated pursuant to this Agreement.
SECTION 3.4 RESTRICTIONS.
Neither Purchaser 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 either Purchaser or any affiliate or controlling entities thereof
for the execution, delivery, or performance of this Agreement by either
Purchaser.
SECTION 3.5 PURCHASES FOR INVESTMENT PURPOSES.
Each Purchaser is acquiring the Acquisition Shares for its own account
for investment purposes only and with no intention of offering, distributing, or
reselling the Acquisition 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 Purchaser to sell or otherwise dispose of
all or any part of the Acquisition 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
Purchaser has not taken or caused to be taken, and shall not take or cause to be
taken, any action that would cause the Purchasers, the Seller, the Company or
any of their respective affiliates to be deemed an underwriter, as defined in
Section 2(11) of the Securities Act.
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SECTION 3.6 SOPHISTICATED INVESTOR.
(a) Each Purchaser is a sophisticated investor as such term is
contemplated under the Securities Act of 1933, as amended. Each Purchaser
recognizes that the Company emerged from bankruptcy on December 27, 1991
and that the purchase of the Acquisition Shares involves significant risks.
The Purchaser also recognizes that none of the proceeds from the purchase
of the Acquisition Shares shall accrue to the benefit of the Company, but
shall instead accrue to the benefit of the Seller.
(b) Neither Purchaser is relying upon the Seller, the Company or any
of their respective Affiliates, accountants, attorneys or financial
advisors for advice with respect to whether the Purchaser's purchase of the
Acquisition Shares constitutes a legal investment for the Purchasers or
with respect to the tax or other legal consequences of such purchase.
SECTION 3.7 RESTRICTED SECURITIES.
(a) Each Purchaser understands and agrees that (i) the sale of the
Acquisition Shares has not been registered under the Securities Act or any
State securities laws; and (ii) each Purchaser shall not offer or sell the
Acquisition Shares except pursuant to registration under the Securities Act
or an available exemption from registration under the Securities Act.
(b) Each Purchaser agrees to the imprinting, so long as appropriate,
of any certificates representing the Acquisition 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
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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 REASONABLY
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.
IV. CONDITIONS TO OBLIGATIONS OF THE PURCHASERS.
The obligations of the Purchasers under this Agreement are subject, at
the option of the Purchasers, to the satisfaction of the following conditions:
SECTION 4.1 ACCURACY OF REPRESENTATIONS AND
COMPLIANCE WITH CONDITIONS.
All representations and warranties of the Seller contained in this
Agreement shall be accurate when made and, in addition, shall be accurate as of
the Closing as though such representations and warranties were then made in
exactly the same language by the Seller; as of the Closing, the Seller shall
have performed and complied with all covenants and agreements and satisfied all
conditions required to be performed and complied with by it at or before such
time by this Agreement; and the Purchasers shall have received a certificate
executed by the Seller, dated the Closing Date, to that effect.
SECTION 4.2 OPINION OF COUNSEL.
The Seller shall deliver to the Purchasers on the date hereof and on
the Closing Date the opinion or opinions of counsel to the Seller, in form and
substance satisfactory to counsel for the Purchasers, substantially to the
effect that:
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(a) The Seller is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Delaware.
(b) This Agreement has been duly authorized, executed, and delivered
by the Seller, constitutes the legal, valid, and binding obligation of the
Seller, and (subject to applicable United States bankruptcy, insolvency,
and other laws affecting the enforceability of creditors' rights generally)
is enforceable as to Seller in accordance with its terms.
(c) To counsel's knowledge, the Seller is under no contractual
restriction or obligation which is inconsistent with the execution and
performance of this Agreement and the instruments and documents
contemplated hereby. To counsel's knowledge, no consent, authorization,
approval, order, license, certificate, or permit of or from, or declaration
or filing with, any governmental authority or any court or other tribunal
is required by the Seller or any of its affiliated or controlling entities
for the execution, delivery, or performance of this Agreement by the
Seller.
(d) The transfer of the Acquisition Shares by the Seller to the
Purchasers has been approved by all requisite Spanish courts and
governmental authorities and such sale and transfer cannot be rescinded by
any Spanish judicial or governmental authority.
SECTION 4.3 OTHER CLOSING DOCUMENTS.
The Seller shall have delivered to the Purchasers at or prior to the
Closing such other documents (including, without limitation, an incumbency
certificate) as the Purchaser may reasonably request in order to enable the
Purchasers to determine whether the conditions to their obligations under this
Agreement have been met and otherwise to carry out the provisions of this
Agreement.
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SECTION 4.4 LEGAL ACTION.
There shall not have been instituted or threatened any legal
proceeding relating to, or seeking to prohibit or otherwise challenge the
consummation of, the transactions contemplated by this Agreement, or to obtain
substantial damages with respect thereto.
SECTION 4.5 NO GOVERNMENTAL ACTION.
There shall not have been any action taken, or any law, rule,
regulation, order, judgment, or decree proposed, promulgated, enacted, entered,
enforced, or deemed applicable to the transactions contemplated by this
Agreement, by any federal, state, local, or other governmental authority or by
any court or other tribunal, including the entry of a preliminary or permanent
injunction, which, in the sole judgment of the Purchasers, (a) makes any of the
transactions contemplated by this Agreement, illegal, (b) results in a delay in
the ability of the Purchasers to consummate any of the transactions contemplated
by this Agreement, (c) imposes material limitations on the ability of the
Purchasers effectively to exercise full rights of ownership of such Acquisition
Shares including the right to vote such Acquisition Shares on all matters
properly presented to the stockholders of the Company, or (d) otherwise
prohibits, restricts, or delays consummation of any of the transactions
contemplated by this Agreement or impairs the contemplated benefits to the
Purchasers of any of the transactions contemplated by this Agreement.
SECTION 4.6 CCACA REGISTRATION RIGHTS AGREEMENT.
Acquisition Company A and the Company shall have executed and
delivered the CCACA Registration Rights Agreement.
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SECTION 4.7 CONSENTS.
Prior to the Closing, the Seller shall have obtained all consents
required by the CIT Group, the main credit facility of the Company. Failure to
obtain such consents shall be deemed a material breach of this Agreement. The
Purchasers shall use their reasonable best efforts to provide financial
information that may be reasonably requested by the CIT Group.
V. CONDITIONS TO OBLIGATIONS OF SELLER.
The obligations of the Seller under this Agreement are subject, at the
option of the Seller, to the satisfaction of the following conditions:
SECTION 5.1 ACCURACY OF REPRESENTATIONS AND
COMPLIANCE WITH CONDITIONS.
All representations and warranties of the Purchasers contained in this
Agreement shall be accurate when made and, in addition, shall be accurate as of
the Closing as though such representations and warranties were then made in
exactly the same language by the Purchasers; as of the Closing, the Purchasers
shall have performed and complied with all conditions required to be performed
and complied with by them at or before such time by this Agreement, and the
Seller shall have received a certificate executed by an executive officer of
each Purchaser, dated the Closing Date, to that effect.
SECTION 5.2 OPINION OF COUNSEL.
The Purchasers shall have delivered to the Seller on the date hereof
and on the Closing Date the opinion of counsel to the Purchasers, in form and
substance satisfactory to counsel for the Seller, substantially to the effect
that:
(a) Each Purchaser is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of
Delaware.
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(b) This Agreement has been duly authorized, executed, and delivered
by each of the Purchasers, constitutes the legal, valid, and binding
obligation of each of the Purchasers, and (subject to applicable United
States bankruptcy, insolvency, and other laws affecting the enforceability
of creditors' rights generally) is enforceable as to each of the Purchasers
in accordance with its terms.
SECTION 5.3 OTHER CLOSING DOCUMENTS.
The Purchasers shall have delivered to the Seller at or prior to the
Closing such other documents (including, without limitation, an incumbency
certificate) as the Seller may reasonably request in order to enable the Seller
to determine whether the conditions to its obligations under this Agreement have
been met or otherwise to carry out the provisions of this Agreement.
SECTION 5.4 LEGAL ACTION.
There shall not have been instituted or threatened any legal
proceeding relating to, or seeking to prohibit or otherwise challenge the
consummation of, the transactions contemplated by this Agreement, or to obtain
substantial damages with respect thereto.
SECTION 5.5 NO GOVERNMENTAL ACTION.
There shall not have been any action taken, or any law, rule,
regulation, order, judgment, or decree proposed, promulgated, enacted, entered,
enforced, or deemed applicable to the transactions contemplated by this
Agreement (including, without limitation, compliance with the Securities Act),
by any federal, state, local or other governmental authority or by any court or
other tribunal, including the entry of a preliminary or permanent injunction
which, (a) makes any of the transactions contemplated by this Agreement illegal,
(b) results in a material delay in the ability of the Seller to consummate any
of
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the transactions contemplated by this Agreement, or (c) otherwise prohibits,
restricts, or delays materially consummation of any of the transactions
contemplated by this Agreement or materially impairs the contemplated benefits
to the Seller of any of the transactions contemplated by this Agreement.
VI. COVENANTS OF SELLER.
The Seller covenants and agrees as follows:
SECTION 6.1 CONTROL OF BOARD.
The Seller shall use its best efforts to facilitate the transfer of
control of the Board of Directors of the Company immediately following the
Closing.
SECTION 6.2 STOCK OPTIONS.
Until the Release Time (as defined in Section 6.5(b)), the Seller
shall use its best efforts to prevent the Company from granting stock options
under the Chyron Corporation 1995 Long-Term Incentive Plan.
SECTION 6.3 ADVICE OF CHANGES.
Until the Release Time, the Seller will immediately advise the
Purchaser in a detailed written notice of any fact or occurrence or any pending
or threatened occurrence of which it obtains knowledge and which (if existing
and known at the date of the execution of this Agreement) would have been
required to be set forth or disclosed in this Agreement or schedules or exhibits
hereto, which (if existing and known at any time prior to or at the Closing)
would make the performance by any party of this Agreement impossible or make
such performance materially more difficult than in the absence of such fact or
occurrence, or which (if existing and known at the time of the Closing) would
cause a condition to any party's obligations under this Agreement not to be
fully satisfied.
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SECTION 6.4 PUBLIC STATEMENTS.
Until the Release Time, the Seller shall not disseminate any
information to the public regarding this Agreement or the transactions
contemplated hereby, without the prior written consent of the Purchasers, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing,
nothing contained herein shall prevent the Seller from disclosing any
information as required by the U.S. Federal Securities laws, the rules governing
the New York Stock Exchange, to any governmental authority if required to do so
by law, or to any court or tribunal.
SECTION 6.5 OTHER PROPOSALS.
(a) Until the Release Time, the Seller shall not, and shall neither
authorize nor permit any officer, director, employee, counsel, agent,
investment banker, accountant, affiliate, or other representative of the
Seller, directly or indirectly, to: (i) discuss with any person or entity
in an effort to solicit any Proposal (as such term is defined in this
Section 6.5(a)); (ii) cooperate with, or furnish or cause to be furnished
any non-public information relating to the financial condition, results of
operations, business, properties, assets, liabilities, or future prospects
of the Company, to any person or entity in connection with any Proposal;
(iii) negotiate with any person or entity with respect to any Proposal; or
(iv) enter into any agreement or understanding with the intent to effect a
Proposal. As used in this Section 6.5, the term "Proposal" shall mean any
proposal, other than as contemplated by this Agreement, (x) for a merger,
consolidation, reorganization, other business combination, or
recapitalization involving the Company, for the acquisition of a one
percent (1%) or greater interest in the equity or in any class or series of
capital stock of the Company, for the acquisition of the right to cast one
percent (1%) or more of the votes on any matter with respect to the
Company, or for the acquisition of a substantial portion of any of its
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assets other than in the ordinary course of its businesses or (y) the
effect of which may be to prohibit, restrict, or delay the consummation of
any of the transactions contemplated by this Agreement or impair the
contemplated benefits to the Purchasers or of any of the transactions
contemplated by this Agreement.
(b) The term "Release Time" shall mean the earlier to occur of
(i) the Closing Date; (ii) the rightful termination of this Agreement by
the Seller; (iii) the abandonment of this Agreement by both parties
pursuant to Section 1.2 hereof; or (iv) September 30, 1995.
(c) In the event that Section 6.5 is breached, the Seller shall
promptly pay Acquisition Company A (i) the greater of (x) $2 million or (y)
50% of the difference in fair market values inherent in the third party
offer plus (ii) all legal, accounting, and other fees, costs, and expenses
reasonably incurred by the Purchasers in connection with this Agreement and
the enforcement thereof provided that such additional costs and expenses
shall not exceed $750,000. The sums referred to in this Section 6.5(c)
shall be the exclusive remedy of the Purchasers for a breach of Section
6.5.
SECTION 6.6 VOTING BY STOCKHOLDERS.
The Seller agrees that until the Release Time, it will vote all
securities of the Company which it is entitled to vote against (except as
otherwise contemplated by this Agreement) (a) any merger, consolidation,
reorganization, other business combination, or capitalization involving the
Company, (b) any sale of assets of the Company, (c) any stock split, stock
dividend, or reverse stock split relating to any class or series of the
Company's stock, (d) any issuance of any shares of capital stock of the Company,
any option, warrant, or other right calling for the issuance of any such share
of capital stock, or any security convertible into or exchangeable for any such
share of capital stock, (e) any authorization
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of any other class or series of stock of the Company, (f) the amendment of the
certificate of incorporation (or other charter document) or the by-laws of the
Company, or (g) any other proposition the effect of which may be to prohibit,
restrict, or delay materially the consummation of any of the transactions
contemplated by this Agreement or to impair materially the contemplated benefits
to the Purchasers of the transactions contemplated by this Agreement.
VII. COVENANTS OF PURCHASERS.
The Purchasers covenant and agree as follows:
SECTION 7.1 CONFIDENTIALITY.
The Purchasers shall insure that all confidential information, if any,
which the Purchasers may receive from the Seller shall not be disclosed to any
other person or entity at any time or used by any of them without the prior
written consent of the Seller; provided, however, that the restrictions of this
sentence shall not apply (a) after the Closing takes place, (b) as may otherwise
be required by law, (c) as may be necessary or appropriate in connection with
the enforcement of this Agreement, or (d) to the extent the information shall
have otherwise become publicly available.
SECTION 7.2 ADVICE OF CHANGES.
Until the Release Time, each of the Purchasers will immediately advise
the Seller in a detailed written notice of any fact or occurrence or any pending
or threatened occurrence of which it obtains knowledge and which (if existing
and known at the date of the execution of this Agreement) would have been
required to be set forth or disclosed in this Agreement or schedules or exhibits
hereto, which (if existing and known at any time prior to or at the Closing)
would make the performance by any party of this Agreement impossible or make
such performance materially more difficult than in the
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absence of such fact or occurrence, or which (if existing and known at the time
of the Closing) would cause a condition to any party's obligations under this
Agreement not to be fully satisfied.
SECTION 7.3 PUBLIC STATEMENTS.
Until the Release Time, each of the Purchasers shall not disseminate
any information to the public regarding this Agreement or the transactions
contemplated hereby, without the prior written consent of the Seller, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing,
nothing contained herein shall prevent the Purchasers from disclosing any
information as required by the U.S. Federal Securities laws, the rules governing
the New York Stock Exchange, to any governmental authority if required to do so
by law, or to any court or tribunal.
VIII. INDEMNIFICATION; SURVIVAL; LIMITATIONS ON LIABILITY.
SECTION 8.1 INDEMNIFICATION.
(a) Subject to the terms and conditions set forth in Section 8.2, the
Seller agrees to indemnify and hold harmless the Purchasers, their
officers, directors, employees, counsel, and agents, (collectively, the
"Indemnitees"), against and in respect of any and all claims, suits,
actions, proceedings (formal or informal), investigations, judgments,
deficiencies, damages, settlements, liabilities, and reasonable legal and
other expenses related thereto (collectively, "Claims"), as and when
incurred, arising out of or based upon any breach of any representation,
warranty, covenant, or agreement of the Seller contained in this Agreement
(including the exhibits and schedules attached hereto) and any document,
instrument or certificate delivered pursuant to this Agreement.
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(b) Each Indemnitee shall give the Seller prompt notice of any
claim asserted or threatened against such Indemnitee on the basis of
which such Indemnitee intends to seek indemnification (but the
obligations of the Seller shall not be conditions upon receipt of such
notice, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice). The Seller shall promptly
assume the defense of any Indemnitee, with counsel reasonably
satisfactory to such Indemnitee, and the fees and expenses of such
counsel shall be at the sole cost and expense of the Seller.
Notwithstanding the foregoing, any Indemnitee shall be entitled, at
his or its expense, to employ counsel separate from counsel for the
Seller and from any other party in such action, proceeding, or
investigation. No Indemnitee may agree to a settlement of a claim
without the prior written approval of the Seller, which approval shall
not be unreasonably withheld.
SECTION 8.2 SURVIVAL.
(a) Subject to the provisions of Section 8.2(b), the covenants,
agreements, representations, and warranties contained in or made pursuant
to this Agreement shall survive the Closing and the delivery of the
purchase price by the Purchasers.
(b) The liabilities and obligations of the Seller and the Purchasers
under this Agreement shall be subject to the following limitations:
(i) The Seller and the Purchasers shall have no liability or
obligation with respect to any claim for a breach of a
representation or warranty under this Agreement made after
two (2) years from the Closing Date; and
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(ii) The Seller and the Purchasers shall not be responsible for
any claims until the cumulative aggregate amount thereof
shall exceed Fifty Thousand Dollars ($50,000.00) (the
"Minimum Amount") in which case the Seller or the
Purchasers, as the case may be, shall then be liable for
all amounts in excess of the Minimum Amount.
IX. MISCELLANEOUS.
SECTION 9.1 BROKERAGE FEES.
(a) 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), 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.
(b) The Seller represents and warrants that it has not entered into
any agreement with Percival Hudgins and Company, Inc. ("Percival Hudgins").
Based on this representation, the Purchasers agree that the Seller shall not be
liable or have any obligation with respect to any claim for a fee, commission or
other compensation claimed by Percival Hudgins against the Company.
SECTION 9.2 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.
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SECTION 9.3 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 9.4 MERGER; MODIFICATION.
This Agreement, the Escrow Agreement, the Pledge Agreement, and the
schedules, exhibits, and certificates 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.
SECTION 9.5 NOTICES.
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 9.5):
Purchasers:
Michael Wellesley-Wesley
c/o Camhy Karlinksy & Stein LLP
1740 Broadway
New York, New York 10019
Attn.: Dan DeWolf, Esq.
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with a copy (which copy shall not constitute notice) to:
Sheldon D. Camhy, Esq.
Camhy Karlinsky & Stein LLP
1740 Broadway
New York, New York 10019
Seller:
Mr. Miguel S. Moraga
Treasurer and Chief Financial Officer
Pesa, Inc.
5 Hub Drive
Melville, New York 11087
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
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 9.5 shall be deemed given at the time of receipt
thereof.
SECTION 9.6 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
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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 9.7 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 Seller 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 9.8 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 9.7).
SECTION 9.9 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 9.10 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 9.11 COUNTERPARTS; GOVERNING LAW.
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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.
SECTION 9.12 ENGLISH LANGUAGE.
This Agreement shall be governed solely by the English language
version of this Agreement. Any translated version shall not be binding upon the
parties.
SECTION 9.13 REGISTRATION RIGHTS.
The Seller acknowledges and agrees that the 10 million shares of the
Acquisition Shares evidenced by stock certificates U74787 through U74886 are
"Registrable Stock" as such term is defined under the Registration Rights
Agreement; and registration rights (both demand and piggy-back) shall be validly
transferred to the Purchasers as of the Closing Date, subject to the terms and
conditions of the Registration Rights Agreement; and on or prior to the Closing
Date, the Seller shall provide the Company, pursuant to Section 11 of the
Registration Rights Agreement, with written notice of the transfer of the 10
million shares of the Acquisition Shares evidenced by stock certificates U74787
through U74886.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
BOARD OF DIRECTORS OF PESA, INC.
PESA INC: CC ACQUISITION COMPANY A, L.L.C.
By: /s/ Miguel S. Moraga By: /s/ Michael I. Wellesley-Wesley
------------------------------- ----------------------------------
Name: Miguel S. Moraga Name: Michael I. Wellesley-Wesley
Title: Title: Vice President
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/s/ Eduardo Perez De Villegas CC ACQUISITION COMPANY B, L.L.C.
-------------------------------
Name: Eduardo Perez De Villegas
/s/ Tomas Rubinos Pinon By: /s/ Michael I. Wellesley-Wesley
------------------------------- ----------------------------------
Name: Tomas Rubinos Pinon Name: Michael I. Wellesley-Wesley
Title: Vice President
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STOCK PURCHASE AGREEMENT Exhibit "B"
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is being made this
26th day of May, 1995, by and among CC Acquisition Company A, L.L.C., a Delaware
limited liability company (the "Purchaser" or "Acquisition Company A"), Sepa
Technologies Ltd., Co. (the "Seller" or "SEPA"), a Georgia limited liability
company, and John A. Servizio ("Servizio").
W I T N E S S E T H :
WHEREAS, the Seller owns beneficially and of record 14,000,000 shares
(the "Acquisition Shares") of the common stock, par value $.01 per share (the
"Common Stock"), of Chyron Corporation (the "Company"), a New York corporation;
and
WHEREAS, the Purchaser desires to acquire 5,000,000 Acquisition Shares
and to obtain a right of first refusal with respect to the remaining 9,000,000
Acquisition Shares and the Seller desires to sell 5,000,000 Acquisition Shares
to the Purchaser and to grant the Purchaser a right of first refusal with
respect to the remaining 9,000,000 Acquisition Shares, 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. PURCHASE AND SALE.
SECTION 1.1 TERMS OF PURCHASE AND SALE.
(a) Acquisition Company A shall acquire 5 million shares of the
Common Stock of the Company in exchange for the aggregate purchase price of
Two Million Six Hundred
<PAGE>
Thousand Dollars ($2,600,000) U.S., in accordance with the terms and
provisions set forth below:
(i) At the Closing (as defined in Section 1.2 hereof),
Acquisition Company A shall deliver to the Seller by wire
transfer, in immediately available funds to an account in
the United States designated by the Seller, the sum of Two
Million Six Hundred Thousand Dollars ($2,600,000) U.S.
(ii) At the Closing, the Seller shall deliver, or, if on the
Closing Date (as defined in Section 1.2 hereof) the
Acquisition Shares are being held by the Escrow Agent (as
defined in Section 6.5(d) hereof), the Seller shall cause
the Escrow Agent to deliver, to Acquisition Company A, a
stock certificate or certificates representing five
million Acquisition Shares duly endorsed or accompanied by
stock powers duly endorsed for transfer to Acquisition
Company A. Such Acquisition Shares shall be delivered to
Acquisition Company A 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. Such
Acquisition Shares shall be "Registrable Stock", as such
term is defined under that certain Registration Rights
Agreement (the "Registration Rights Agreement"), dated
December 27, 1991, between the Company and Pesa, Inc., a
Delaware corporation; and registration rights (both demand
and piggy-back) relating to such
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Acquisition Shares shall be validly transferred to the
Purchaser on the Closing Date, subject to the terms and
conditions of the Registration Rights Agreement.
(b) The Seller hereby grants to the Purchaser a right of first
refusal to acquire the balance of the 9 million Acquisition Shares (the
"Additional Shares") owned by the Seller. The Seller shall not sell or
otherwise dispose of the Additional Shares except (x) to an Affiliate (as
defined in Section 1.1(c) hereof), (y) in compliance with Section 1.1(d)
below, or (z) in compliance with the provisions set forth below:
(i) If SEPA proposes to dispose of the Additional Shares to a
non-Affiliated third party, it shall deliver a notice (the
"Sale Notice") signed by a duly authorized officer of SEPA
to the Purchaser relating to the proposed disposition;
provided, however, that no Sale Notice of any proposed
disposition of the Additional Shares shall be valid unless
SEPA shall have received prior to the date of the Sale
Notice an offer therefor in writing from a BONA FIDE
purchaser stating the price, terms, and conditions of the
proposed sale. The Sale Notice shall specify the number
of Additional Shares (the "Offered Shares") that SEPA
intends to dispose of, identify and give the address of
the person to whom SEPA proposes to dispose the Offered
Shares, and indicate the price, terms, and conditions of
the proposed disposition.
(ii) Acquisition Company A shall have the irrevocable and
exclusive option, but not the obligation, to purchase from
SEPA the Offered Shares at the price and upon the terms
and conditions equal to those offered by the
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prospective purchaser. If Acquisition Company A elects to
purchase the Offered Shares, it shall give written notice
of such election within 30 days after the receipt of the
Sale Notice; and the Closing regarding such Offered Shares
shall occur within 90 days after receipt of the Sale
Notice. Any transfer of the Offered Shares to Acquisition
Company A shall include the valid transfer of the
registration rights relating to such Offered Shares,
subject to the terms and conditions of the Registration
Rights Agreement.
(iii) If SEPA gives a Sale Notice, and Acquisition Company A
does not elect to purchase the Offered Shares within such
30-day period, SEPA may dispose of its Offered Shares to
the person or persons at the price, and on the terms and
conditions specified in the Sale Notice.
(c) The term "Affiliate" of a person or entity or "Affiliated with" a
specified person or entity means a person or entity that directly or
indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with the person or entity specified. The term
"control" means the possession, directly or indirectly, alone or in concert
with others, of the power to direct or cause the direction of the
management and policies of a person or entity, whether through ownership of
securities, by contract, or otherwise.
(d) Notwithstanding Section 1.1(b) hereof, the Seller shall have the
right to sell the Additional Shares pursuant to Rule 144 promulgated under
the Securities Act of 1933, as amended; PROVIDED, however, that no such
sales shall be made during the two-year period following the Closing; and
FURTHER PROVIDED that the aggregate amount of such Additional Shares sold
each calendar year shall not exceed 500,000 shares.
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SECTION 1.2 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 17, 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.
SECTION 1.3 OTHER TRANSACTIONS.
On or prior to the Closing, the Seller shall provide the Company
written notice of the transfer of the Acquisition Shares to Acquisition Company
A, in accordance with Section 11 of the Registration Rights Agreement.
II. REPRESENTATIONS AND WARRANTIES OF SELLER.
The Seller represents and warrants to the Purchaser as follows:
SECTION 2.1 SHARE OWNERSHIP.
(a) The Acquisition Shares are owned by the Seller 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. Upon transfer to the Purchaser of the
Acquisition Shares, the Seller will convey to the Purchaser good title to
the Acquisition Shares, 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.
(b) Upon transfer of the Acquisition Shares, and assuming that
Acquisition Company A complies with Section 11 of the Registration Rights
Agreement, the Acquisition Shares shall
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be "Registrable Stock" as defined in the Registration Rights Agreement, and
registration rights shall be attributable to such Acquisition Shares,
subject to the terms and conditions of the Registration Rights Agreement.
SECTION 2.2 LITIGATION AND CLAIMS.
There is no litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation pending (to the Seller's
knowledge), threatened, or (to the Seller's knowledge) in prospect therefor,
that would prohibit the transactions contemplated pursuant to this Agreement.
SECTION 2.3 ORGANIZATION.
The Seller is a limited liability company duly organized, validly
existing, and in good standing under the laws of the State of Georgia.
SECTION 2.4 AUTHORITY TO SELL.
The Seller has all requisite power and authority to execute, deliver,
and perform this Agreement and the instruments and documents contemplated
hereby. All necessary company proceedings of the Seller 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 the Seller, is the legal, valid, and
binding obligation of the Seller, and is enforceable as to the Seller in
accordance with its terms.
SECTION 2.5 RESTRICTIONS.
The Seller is under no 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,
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local, or other governmental authority or any court or other tribunal is
required by the Seller or any of its affiliated or controlling entities for the
execution, delivery, or performance of this Agreement by the Seller. The
transfer of the Acquisition Shares to the Purchaser has been approved by the
requisite Spanish courts and governmental authorities, if required, and cannot
be rescinded by any judicial or governmental authority.
III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser represents and warrants to the Seller as follows:
SECTION 3.1 ORGANIZATION.
The Purchaser is a limited liability company duly organized, validly
existing, and in good standing under the laws of the State of Delaware.
SECTION 3.2 AUTHORITY TO BUY.
The Purchaser has the requisite power and authority to execute,
deliver, and perform this Agreement and the instruments and documents
contemplated hereby. All necessary company proceedings of the Purchaser 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 the Purchaser, is the
legal, valid, and binding obligation of the Purchaser, and is enforceable as to
the Purchaser in accordance with its terms.
SECTION 3.3 LITIGATION AND CLAIMS.
There is no litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation pending (to the Purchaser's
knowledge) threatened, or (to the Purchaser's
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knowledge) in prospect therefor, that would prohibit the transactions
contemplated pursuant to this Agreement.
SECTION 3.4 RESTRICTIONS.
The Purchaser is not 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 the Purchaser or any Affiliate thereof for the execution, delivery,
or performance of this Agreement by the Purchaser.
SECTION 3.5 PURCHASES FOR INVESTMENT PURPOSES ONLY.
The Purchaser is acquiring the Acquisition Shares for its own account
for investment purposes only and with no intention of offering, distributing or
reselling the Acquisition 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 the Purchaser to sell or otherwise dispose
of all or any part of the Acquisition Shares under a registration under the
Securities Act of 1933, as amended, (hereinafter "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.
The Purchaser has not taken or caused to be taken, and shall not take or cause
to be taken, any action that would cause the Purchaser, the Seller, the Company
or any of their respective Affiliates to be deemed an underwriter, as defined in
Section 2(11) of the Securities Act.
SECTION 3.6 SOPHISTICATED INVESTOR.
(a) The Purchaser is a sophisticated investor as such term is
contemplated under the Securities Act of 1933, as amended. The Purchaser
recognizes that the Company emerged from
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bankruptcy on December 27, 1991, and that the purchase of the Acquisition
Shares involves significant risks. The Purchaser also recognizes that none
of the proceeds from the purchase of the Acquisition Shares shall accrue to
the benefit of the Company, but shall instead accrue to the benefit of the
Seller.
(b) The Purchaser is not relying upon the Seller, the Company, or any
of their respective Affiliates, accountants, attorneys or financial
advisors for advice with respect to whether the Purchaser's purchase of the
Acquisition Shares constitutes a legal investment for the Purchaser or with
respect to the tax or other legal consequences of such purchase.
SECTION 3.7 RESTRICTED SECURITIES.
(a) The Purchaser understands and agrees that (i) the sale of the
Acquisition Shares has not been registered under the Securities Act or any
State securities laws; and (ii) the Purchaser shall not offer or sell the
Acquisition Shares except pursuant to registration under the Securities Act
or an available exemption from registration under the Securities Act.
(b) The Purchaser agrees to the imprinting, so long as appropriate,
of any certificates representing the Acquisition 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 REASONABLY
SATISFACTORY TO THE COMPANY, THAT THE PROPOSED
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SALE OR TRANSFER IS IN ACCORDANCE WITH AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
IV. CONDITIONS TO OBLIGATIONS OF THE PURCHASER.
The obligations of the Purchaser under this Agreement are subject, at
the option of the Purchaser, to the satisfaction of the following conditions:
SECTION 4.1 ACCURACY OF REPRESENTATIONS AND
COMPLIANCE WITH CONDITIONS.
All representations and warranties of the Seller contained in this
Agreement shall be accurate when made and, in addition, shall be accurate as of
the Closing as though such representations and warranties were then made in
exactly the same language by the Seller; as of the Closing, the Seller shall
have performed and complied with all covenants and agreements and satisfied all
conditions required to be performed and complied with by it at or before such
time by this Agreement; and the Purchaser shall have received a certificate
executed by the Seller, dated the Closing Date, to that effect.
SECTION 4.2 OPINION OF COUNSEL.
The Seller shall deliver to the Purchaser on the Closing Date the
opinion or opinions of counsel to the Seller, in form and substance satisfactory
to counsel for the Purchaser, substantially to the effect that:
(a) The Seller is a limited liability company duly organized, validly
existing, and in good standing under the laws of the State of Georgia.
(b) This Agreement has been duly authorized, executed, and delivered
by the Seller, constitutes the legal, valid, and binding obligation of the
Seller, and (subject to applicable United
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States bankruptcy, insolvency, and other laws affecting the enforceability
of creditors' rights generally) is enforceable as to Seller in accordance
with its terms.
(c) To counsel's knowledge, the Seller is under no contractual
restriction or obligation which is materially inconsistent with the
execution and performance of this Agreement and the instruments and
documents contemplated hereby. To Counsel's knowledge, no consent,
authorization, approval, order, license, certificate, or permit of or from,
or declaration or filing with, any governmental authority or any court or
other tribunal is required by the Seller or any of its affiliated or
controlling entities for the execution, delivery, or performance of this
Agreement by the Seller.
(d) The transfer of the Acquisition Shares by the Seller to the
Purchaser does not require the approval of any Spanish courts or
governmental authorities.
SECTION 4.3 OTHER CLOSING DOCUMENTS.
The Seller shall have delivered to the Purchaser at or prior to the
Closing such other documents (including, without limitation, an incumbency
certificate) as the Purchaser may reasonably request in order to enable the
Purchaser to determine whether the conditions to their obligations under this
Agreement have been met and otherwise to carry out the provisions of this
Agreement.
SECTION 4.4 LEGAL ACTION.
There shall not have been instituted or threatened any legal
proceeding relating to, or seeking to prohibit or otherwise challenge the
consummation of, the transactions contemplated by this Agreement, or to obtain
substantial damages with respect thereto.
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SECTION 4.5 NO GOVERNMENTAL ACTION.
There shall not have been any action taken, or any law, rule,
regulation, order, judgment, or decree proposed, promulgated, enacted, entered,
enforced, or deemed applicable to the transactions contemplated by this
Agreement, by any federal, state, local, or other governmental authority or by
any court or other tribunal, including the entry of a preliminary or permanent
injunction, which, in the sole judgment of the Purchaser, (a) makes any of the
transactions contemplated by this Agreement, illegal, (b) results in a delay in
the ability of the Purchaser to consummate any of the transactions contemplated
by this Agreement, (c) imposes material limitations on the ability of the
Purchaser effectively to exercise full rights of ownership of such Acquisition
Shares including the right to vote such Acquisition Shares on all matters
properly presented to the stockholders of the Company, or (d) otherwise
prohibits, restricts, or delays consummation of any of the transactions
contemplated by this Agreement or impairs the contemplated benefits to the
Purchaser of any of the transactions contemplated by this Agreement.
SECTION 4.6 PESA CLOSING.
Pesa, Inc. and Acquisition Company A shall have closed an agreement
relating to the acquisition of Common Stock of the Company.
V. CONDITIONS TO OBLIGATIONS OF SELLER.
The Obligations of the Seller under this Agreement are subject, at the
option of the Seller, to the satisfaction of the following conditions:
SECTION 5.1 ACCURACY OF REPRESENTATIONS AND
COMPLIANCE WITH CONDITIONS.
All representations and warranties of the Purchaser contained in this
Agreement shall be accurate when made and, in addition, shall be accurate as of
the Closing as though such representations
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and warranties were then made in exactly the same language by the Purchaser; as
of the Closing, the Purchaser shall have performed and complied with all
conditions required to be performed and complied with by it at or before such
time by this Agreement, and the Seller shall have received a certificate
executed by an executive officer of the Purchaser, dated the Closing Date, to
that effect.
SECTION 5.2 OPINION OF COUNSEL.
The Purchaser shall have delivered to the Seller on the Closing Date
the opinion of counsel to the Purchaser, in form and substance satisfactory to
counsel for the Seller, substantially to the effect that:
(a) The Purchaser is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of
Delaware.
(b) This Agreement has been duly authorized, executed, and delivered
by the Purchaser, constitutes the legal, valid, and binding obligation of
the Purchaser, and (subject to applicable United States bankruptcy,
insolvency, and other laws affecting the enforceability of creditors'
rights generally) is enforceable as to the Purchaser in accordance with its
terms.
SECTION 5.3 OTHER CLOSING DOCUMENTS.
The Purchaser shall have delivered to the Seller at or prior to the
Closing such other documents (including, without limitation, an incumbency
certificate) as the Seller may reasonably request in order to enable the Seller
to determine whether the conditions to its obligations under this Agreement have
been met or otherwise to carry out the provisions of this Agreement.
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SECTION 5.4 PESA AGREEMENT.
PESA, Inc. and Acquisition Company A shall have closed an agreement
relating to the acquisition of Common Stock of the Company.
SECTION 5.5 LEGAL ACTION.
There shall not have been instituted or threatened any legal
proceeding relating to, or seeking to prohibit or otherwise challenge the
consummation of, the transactions contemplated by this Agreement, or to obtain
substantial damages with respect thereto.
SECTION 5.6 NO GOVERNMENTAL ACTION.
There shall not have been any action taken, or any law, rule,
regulation, order, judgment, or decree proposed, promulgated, enacted, entered,
enforced, or deemed applicable to the transactions contemplated by this
Agreement (including, without limitation, compliance with the Securities Act),
by any federal, state, local, or other governmental authority or by any court or
other tribunal, including the entry of a preliminary or permanent injunction,
which, (a) makes any of the transactions contemplated by this Agreement,
illegal, (b) results in a material delay in the ability of the Seller to
consummate any of the transactions contemplated by this Agreement, or (c)
otherwise prohibits, restricts, or delays consummation of any of the material
transactions contemplated by this Agreement or materially impairs the
contemplated material benefits to the Seller of any of the transactions
contemplated by this Agreement.
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VI. COVENANTS OF SELLER AND SERVIZIO.
The Seller and Servizio covenant and agree as follows:
SECTION 6.1 CONTROL OF BOARD.
The Seller and Servizio shall use their best efforts to facilitate the
transfer of control of the Board of Directors of the Company immediately
following the Closing.
SECTION 6.2 STOCK OPTIONS.
Until the Release Time (as defined in Section 6.5(b)), the Seller and
Servizio shall use their best efforts to prevent the Company from granting stock
options under the Chyron Corporation 1995 Long-Term Incentive Plan.
SECTION 6.3 ADVICE OF CHANGES.
Until the Release Time, the Seller or Servizio will immediately advise
the Purchaser in a detailed written notice of any fact or occurrence or any
pending or threatened occurrence of which it or he obtains knowledge and which
(if existing and known at the date of the execution of this Agreement) would
have been required to be set forth or disclosed in this Agreement or schedules
or exhibits hereto, which (if existing and known at any time prior to or at the
Closing) would make the performance by any party of this Agreement impossible or
make such performance materially more difficult than in the absence of such fact
or occurrence, or which (if existing and known at the time of the Closing) would
cause a condition to any party's obligations under this Agreement not to be
fully satisfied.
SECTION 6.4 PUBLIC STATEMENTS.
Until the Release Time, the Seller and Servizio shall not disseminate
any information to the public regarding this Agreement or the transactions
contemplated hereby, without the prior written
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consent of the Purchasers, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, nothing contained herein shall prevent the Seller
or Servizio from disclosing any information as required by the U.S. Federal
Securities laws, the rules governing the New York Stock Exchange, to any
governmental authority if required to do so by law, or to any court or tribunal.
SECTION 6.5 OTHER PROPOSALS.
(a) Until the Release Time, the Seller and Servizio shall not, and
shall neither authorize nor permit any officer, director, employee,
counsel, agent, investment banker, accountant, affiliate, or other
representative of the Seller or Servizio, directly or indirectly, to: (i)
discuss with any person or entity in an effort to solicit any Proposal (as
such term is defined in this Section 6.5(a)); (ii) cooperate with, or
furnish or cause to be furnished any non-public information relating to the
financial condition, results of operations, business, properties, assets,
liabilities, or future prospects of the Company, to any person or entity in
connection with any Proposal; (iii) negotiate with any person or entity
with respect to any Proposal; or (iv) enter into any agreement or
understanding with the intent to effect a Proposal. As used in this
Section 6.5, the term "Proposal" shall mean any proposal, other than as
contemplated by this Agreement, (x) for a merger, consolidation,
reorganization, other business combination, or recapitalization involving
the Company, for the acquisition of a one percent (1%) or greater interest
in the equity or in any class or series of capital stock of the Company,
for the acquisition of the right to cast one percent (1%) or more of the
votes on any matter with respect to the Company, or for the acquisition of
a substantial portion of any of its assets other than in the ordinary
course of its businesses or (y) the effect of which may be to prohibit,
restrict, or delay the consummation of
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any of the transactions contemplated by this Agreement or impair the
contemplated benefits to the Purchaser or of any of the transactions
contemplated by this Agreement.
(b) The term "Release Time" shall mean the earlier to occur of
(i) the Closing Date; (ii) the rightful termination of this Agreement by
the Seller; (iii) the abandonment of this Agreement by both parties
pursuant to Section 1.2 hereof; or (iv) September 30, 1995.
(c) In the event that Section 6.5 is breached, the Seller or Servizio
shall promptly pay Acquisition Company A (i) the greater of (x) $1 million
or (y) 50% of the difference in fair market values inherent in the third
party offer plus (ii) all legal, accounting, and other fees, costs, and
expenses reasonably incurred by the Purchaser in connection with this
Agreement and the enforcement thereof provided that such additional costs
and expenses shall not exceed $375,000. The sums referred to in this
Section 6.5(c) shall be the exclusive remedy of the Purchaser for a breach
of Section 6.5. The obligations of the Seller and Servizio pursuant to
this Section 6.5(c) are joint and several.
(d) On the date hereof, as security for the Seller's and Servizio's
obligations pursuant to Article I and Section 6.5 hereof, the Seller shall
deposit and deliver to First Union National Bank of North Carolina, a
national banking association (the "Escrow Agent") 14 million Acquisition
Shares, duly endorsed in blank or accompanied by stock powers duly endorsed
in blank (the "Escrowed Property"). The Escrow Agent shall hold and
dispose of the Escrowed Property in accordance with the terms and
provisions of the Escrow Agreement (the "Escrow Agreement") which shall be
executed and delivered simultaneously with this Agreement, and which shall
be mutually acceptable to the parties hereto.
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SECTION 6.6 VOTING BY STOCKHOLDERS.
The Seller agrees that until the Release Time, it will vote all
securities of the Company which it is entitled to vote against (except as
otherwise contemplated by this Agreement) (a) any merger, consolidation,
reorganization, other business combination, or capitalization involving the
Company, (b) any sale of assets of the Company, (c) any stock split, stock
dividend, or reverse stock split relating to any class or series of the
Company's stock, (d) any issuance of any shares of capital stock of the Company,
any option, warrant, or other right calling for the issuance of any such share
of capital stock, or any security convertible into or exchangeable for any such
share of capital stock, (e) any authorization of any other class or series of
stock of the Company, (f) the amendment of the certificate of incorporation (or
other charter document) or the by-laws of the Company, or (g) any other
proposition the effect of which may be to prohibit, restrict, or delay
materially the consummation of any of the transactions contemplated by this
Agreement or to impair materially the contemplated benefits to the Purchaser of
the transactions contemplated by this Agreement.
SECTION 6.7 VOTING.
After the Closing Date, SEPA shall vote all shares of Common Stock of
the Company that it beneficially owns in accordance with the directions of
Acquisition Company A. In furtherance of this purpose, SEPA shall deliver to
Acquisition Company A, at the Closing, SEPA's proxy relating to the voting of
such Common Stock.
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VII. COVENANTS OF PURCHASER.
The Purchaser covenants and agrees as follows:
SECTION 7.1 CONFIDENTIALITY.
The Purchaser shall insure that all confidential information, if any,
which the Purchaser may receive from the Seller shall not be disclosed to any
other person or entity at any time or used by any of them without the prior
written consent of the Seller; provided, however, that the restrictions of this
sentence shall not apply (a) after the Closing takes place, (b) as may otherwise
be required by law, (c) as may be necessary or appropriate in connection with
the enforcement of this Agreement, or (d) to the extent the information shall
have otherwise become publicly available.
SECTION 7.2 MANAGEMENT AGREEMENT.
(a) The Purchaser shall not take any action to cancel the Management
Agreement of SEPA with the Company, prior to December 31, 1997. SEPA
agrees that management fees under such Management Agreement shall be
subject to an annual limit of $1.5 million.
(b) The Purchaser and SEPA agree to negotiate in good faith the
modification of certain terms of the Management Agreement in order to
provide for the deferral of payments (upon payment of interest thereon) to
SEPA thereunder, in light of the cash flow of the Company.
SECTION 7.3 ADVICE OF CHANGES.
Until the Release Time, the Purchaser will immediately advise the
Seller in a detailed written notice of any fact or occurrence or any pending or
threatened occurrence of which it or he obtains knowledge and which (if existing
and known at the date of the execution of this Agreement) would have been
required to be set forth or disclosed in this Agreement or schedules or exhibits
hereto, which (if
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existing and known at any time prior to or at the Closing) would make the
performance by any party of this Agreement impossible or make such performance
materially more difficult than in the absence of such fact or occurrence, or
which (if existing and known at the time of the Closing) would cause a condition
to any party's obligations under this Agreement not to be fully satisfied.
SECTION 7.4 PUBLIC STATEMENTS.
Until the Release Time, the Purchaser shall not disseminate any
information to the public regarding this Agreement or the transactions
contemplated hereby, without the prior written consent of the Seller, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing,
nothing contained herein shall prevent the Purchaser from disclosing any
information as required by the U.S. Federal Securities laws, the rules governing
the New York Stock Exchange, to any governmental authority if required to do so
by law, or to any court or tribunal.
VIII. INDEMNIFICATION; SURVIVAL; LIMITATIONS ON LIABILITY.
SECTION 8.1 INDEMNIFICATION.
(a) Subject to the terms and conditions set forth in Section 8.2, the
Seller agrees to indemnify and hold harmless the Purchaser, its officers,
directors, employees, counsel, and agents, (collectively, the
"Indemnitees"), against and in respect of any and all claims, suits,
actions, proceedings (formal or informal), investigations, judgments,
deficiencies, damages, settlements, liabilities, and reasonable legal and
other expenses related thereto (collectively, "Claims"), as and when
incurred, arising out of or based upon any breach of any representation,
warranty, covenant, or agreement of the Seller contained in this Agreement
(including the exhibits and schedules attached hereto) and any document,
instrument or certificate delivered pursuant to this Agreement.
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(b) Each Indemnitee shall give the Seller prompt notice of any
claim asserted or threatened against such Indemnitee on the basis of
which such Indemnitee intends to seek indemnification (but the
obligations of the Seller shall not be conditions upon receipt of such
notice, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice). The Seller shall promptly
assume the defense of any Indemnitee, with counsel reasonably
satisfactory to such Indemnitee, and the fees and expenses of such
counsel shall be at the sole cost and expense of the Seller.
Notwithstanding the foregoing, any Indemnitee shall be entitled, at
his or its expense, to employ counsel separate from counsel for the
Seller and from any other party in such action, proceeding, or
investigation. No Indemnitee may agree to a settlement of a claim
without the prior written approval of the Seller, which approval shall
not be unreasonably withheld.
SECTION 8.2 SURVIVAL.
(a) Subject to the provisions of Section 8.2(b), the covenants,
agreements, representations, and warranties contained in or made pursuant
to this Agreement shall survive the Closing and the delivery of the
purchase price by the Purchaser.
(b) The liabilities and obligations of the Seller and the Purchaser
under this Agreement shall be subject to the following limitations:
(i) The Seller and the Purchaser shall have no liability or
obligation with respect to any claim for a breach of a
representation or warranty under this Agreement made after
two (2) years from the Closing Date; and
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(ii) The Seller and the Purchaser shall not be responsible for
any claims until the cumulative aggregate amount thereof
shall exceed Twenty-Five Thousand ($25,000.00) Dollars
(the "Minimum Amount") in which case the Seller or the
Purchaser, as the case may be, shall then be liable for
all amounts in excess of the Minimum Amount.
IX. MISCELLANEOUS.
SECTION 9.1 BROKERAGE FEES.
(a) 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), 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.
(b) The Seller represents and warrants that it has not entered into
any agreement with Percival Hudgins and Company, Inc. ("Percival Hudgins").
Based on this representation, the Purchaser agrees that the Seller shall
not be liable or have any obligation with respect to any claim for a fee,
commission, or other compensation claimed by Percival Hudgins against the
Company.
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SECTION 9.2 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 9.3 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 9.4 MERGER; MODIFICATION.
This Agreement, the Escrow Agreement, and the schedules, exhibits, and
certificates 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.
SECTION 9.5 NOTICES.
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
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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 9.5):
Purchaser:
Michael Wellesley-Wesley
Camhy Karlinsky & Stein LLP
1740 Broadway
New York, New York 10019
Attn: Dan DeWolf
with a copy (which copy shall not constitute notice) to:
Sheldon D. Camhy, Esq.
Camhy Karlinsky & Stein LLP
1740 Broadway
New York, New York 10019
Seller or Servizio:
Mr. Miguel S. Moraga
Treasurer and Chief Financial Officer
Pesa, Inc.
5 Hub Drive
Melville, New York 11087
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
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 9.5 shall be deemed given at the time of receipt
thereof.
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SECTION 9.6 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 9.7 BINDING EFFECT.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the Purchaser, and its respective successors and assigns and the
Seller and Servizio and its or his respective successors, assigns, heirs, and
personal representatives, 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 9.8 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 9.7).
SECTION 9.9 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.
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SECTION 9.10 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 9.11 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.
SECTION 9.12 ENGLISH LANGUAGE.
This Agreement shall be governed solely by the English language
version of this Agreement. Any translated version shall not be binding upon the
parties.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
SEPA TECHNOLOGIES LTD. CO. CC ACQUISITION COMPANY A, L.L.C.
By: /s/ John A. Servizio By: /s/ Michael I. Wellesley-Wesley
----------------------------- ----------------------------------
Name: John A. Servizio Name: Michael I. Wellesley-Wesley
Title: Chairman & CEO Title: Vice President
/s/ John A. Servizio
- -----------------------------
John A. Servizio
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REGISTRATION RIGHTS AGREEMENT Exhibit "C"
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of the 26th day of May, 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 (the "Purchaser").
R E C I T A L S
WHEREAS, the Purchaser is purchasing 10,000,000 shares of the common
stock, par value $.01 per share, of the Company (the "Acquisition Shares") from
PESA, Inc., a Delaware corporation ("PESA"), pursuant to a Stock Purchase
Agreement by and among the Purchaser, CC Acquisition Company B, L.L.C., a
Delaware limited liability company, and PESA, dated as of May 26, 1995 (the
"Stock Purchase Agreement");
WHEREAS, it is a requirement of the Stock Purchase Agreement that the
Company provide certain registration rights with regard to the Acquisition
Shares;
WHEREAS, it is in the best interests of the Company that the Stock
Purchase Agreement be executed, delivered and closed;
NOW, THEREFORE, in consideration of the mutual promises,
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 Acquisition 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 Acquisition Shares, and (iii) any Common
<PAGE>
Stock issued by way of stock split of the Acquisition Stock. 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 number of shares of "Registrable Stock then outstanding"
as of any time shall be equal to (i) the number of shares of Common
Stock then outstanding which are Registrable Stock, plus (ii) the
number of shares of Common Stock issuable pursuant to the then
exercisable or convertible warrants, rights, options or convertible
securities referred to in clause (ii) of Section 1(c) above.
(e) The term "Holder" shall mean the Purchaser 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 Purchaser or such transferee or assignee shall then
own Registrable Stock.
(f) The term "1933 Act" shall mean the Securities Act of 1933,
as amended.
(g) 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.
(h) The term "Person" shall mean an individual, corporation,
partnership, trust, unincorporated organization or association or
other entity, including any governmental entity.
(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.
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<PAGE>
2. DEMAND REGISTRATION.
(a) Any Holder or Holders owning in the aggregate not less than
a majority of the shares of Registrable Stock then outstanding (the
"Initiating 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 Initiating 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.
(b) If the Initiating 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 Initiating 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.
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(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 Initiating Holders in writing that in its
opinion marketing factors require a limitation of the number of shares
to be underwritten, the Initiating 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 Initiating 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 Initiating 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 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 only
one (1) registration pursuant to this Section 2; 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
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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, the Company shall
each such time 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 such 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 Holders of a
majority in interest of the Registrable Stock covered by such
registration statement copies of all such documents proposed to be
filed, and (ii) notify each such Holder of any stop order
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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 (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;
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(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 Holder requesting
registration of Registrable Stock pursuant to Section 2, 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 independent 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
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<PAGE>
underwriters, then to the Holders making such request, as to such
matters as such underwriters or the Holders holding a majority of the
Registrable Stock included in such registration, 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 Holders making such request 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 Holders holding a majority of the Registrable Stock being so
registered 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.
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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
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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 (which counsel shall be selected by Holders holding a majority in
interest of the Registrable Stock being registered) 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
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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
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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)
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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. CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. Notwithstanding any
other provisions of this Agreement to the contrary, the Company shall not be
required to register any Registrable Stock under this Agreement which are not
"restricted securities" within the meaning of Rule 144(a)(3) under the 1933 Act.
11. 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 11, no transfer of Registrable Stock shall cause such Registrable Stock
to lose such status.
12. MISCELLANEOUS.
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(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.
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.
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(g) READINGS. 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. The initial address
for the Holders is Michael Wellesley-Wesley, c/o Camhy Karlinsky &
Stein LLP, 1740 Broadway, New York, New York 10019. 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.
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(m) EFFECTIVE DATE. The registration rights provided herein
shall become effective upon the earliest to occur of (i) the receipt
by the Company from the Purchaser of written notice that (x) the Stock
Purchase Agreement has failed to close due to its abandonment by the
parties thereto, (y) the Stock Purchase Agreement has been terminated
by mutual agreement of the parties thereto, or (z) the Stock Purchase
Agreement has been breached by either party, (ii) the Closing (as
defined in the Stock Purchase Agreement), and (iii) September 30,
1995.
(n) TERMINATION. The registration rights provided herein shall
terminate upon delivery to the Purchaser of a certificate of each of
the Company and PESA (and such other documents or legal opinions as
may be reasonably requested by the Purchaser) stating and confirming
that the registration rights described in the Registration Rights
Agreement, by and between the Company and Pesa, dated December 27,
1991, relating to ten million shares of the Company's Common Stock,
have been validly transferred to CC Acquisition Company B, L.L.C., a
Delaware limited liability company, in conformance with Sections
1.1(c) and 9.13 of the Stock Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CHYRON CORPORATION,
a New York corporation
By: /s/ John A. Servizio
-------------------------------
Name: John A. Servizio
Title: Chairman & CEO
5 Hub Drive
Melville, New York 11087
Attention: CEO
-----------------------
CC ACQUISITION COMPANY A, L.L.C.
a Delaware limited liability company
By: /s/ Michael Wellesley-Wesley
-------------------------------
Name: Michael Wellesley-Wesley
Title: Vice President
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ESCROW AGREEMENT Exhibit "D"
THIS ESCROW AGREEMENT, dated as of May 26, 1995 ("Escrow Agreement"), is by
and among Pesa, Inc., a Delaware corporation ("PESA"); CC Acquisition Company
A, L.L.C., a Delaware limited liability company ("CCACA"); and First Union
National Bank of North Carolina, a national banking association, as Escrow Agent
hereunder ("Escrow Agent").
BACKGROUND
A. PESA and CCACA have entered into a Stock Purchase Agreement (the
"Underlying Agreement"), dated as of the date hereof pursuant to which CCACA
will acquire common stock, par value .01 per share (the "Common Stock") of
Chyron Corporation (the "Company"). The Underlying Agreement provides that on
the date hereof, each of PESA and CCACA shall deposit with the Escrow Agent 10
million shares of Common Stock, aggregating 20 million shares of the Common
Stock (the "Escrowed Property").
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. Pursuant to the Underlying Agreement, PESA and CCACA have each
appointed the Representatives (as defined below) to represent them for all
purposes in connection with the funds to be deposited with Escrow Agent, the
Underlying Agreement, and this Escrow Agreement.
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:
"CCACA REPRESENTATIVE" shall mean Michael Wellesley-Wesley or Daniel
DeWolf, severally, or any other person designated in a writing signed by CCACA
and delivered to Escrow Agent and the PESA Representative in accordance with the
notice provisions of this Escrow Agreement, to act as its representative under
this Escrow Agreement.
<PAGE>
"ESCROWED PROPERTY" shall mean the stock certificates representing
shares of the Common Stock of the Company deposited with Escrow Agent pursuant
to this Agreement, together with any dividends and other income or distributions
thereon.
"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 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 Escrow Agent and the CCACA Representative in accordance with
the notice provisions of this Escrow Agreement, to act as its representative
under this Escrow Agreement.
"REPRESENTATIVES" shall mean the PESA Representative and the CCACA
Representative.
2. APPOINTMENT OF AND ACCEPTANCE BY ESCROW AGENT. PESA, CCACA, and
the Representatives on behalf of PESA and CCACA 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, PESA shall deposit with the Escrow Agent
a stock certificate or stock certificates representing 10 million shares of
Common Stock of the Company, duly endorsed in blank or accompanied with
stock powers duly endorsed in blank (the "PESA Shares"). Until delivered
out of the Escrow Account, PESA shall retain the right to vote the PESA
Shares.
(b) On the date hereof, CCACA shall deposit with the Escrow
Agent a stock certificate or stock certificates representing 10 million
shares of the Common Stock of the Company, duly endorsed in blank or
accompanied with stock powers duly endorsed in blank (the "CCACA Shares").
Until delivered out of the Escrow Account, CCACA shall retain the right to
vote the CCACA shares.
(c) The Escrow Agent acknowledges receipt of the PESA Shares and
CCACA Shares, and will hold such Escrowed Property safely in a segregated
account.
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4. DISBURSEMENT OF ESCROWED PROPERTY. The Escrowed Property shall be
disbursed and distributed as follows:
(a) In the event of a breach of the Underlying Agreement (after
any applicable notice and cure period) by CCACA, PESA may deliver to the
Escrow Agent an affidavit sworn to by the PESA Representative (i) stating
that CCACA has breached the Underlying Agreement, (ii) specifying the
nature of such breach, (iii) stating that any applicable notice and cure
period has lapsed with respect to such breach, and (iv) specifying the
Escrowed Property to be delivered to PESA as a result of such breach.
Promptly after receipt of such affidavit (but in no event later than five
(5) business days after receipt of such affidavit), the Escrow Agent shall
deliver a copy thereof to CCACA. Twenty (20) business days after the
Escrow Agent shall have delivered a copy of PESA's notice to CCACA, the
Escrow Agent shall deliver to PESA the part of the Escrowed Property so
demanded, unless the Escrow Agent shall have been served with a court order
restraining it from making such a delivery.
(b) In the event of a breach of the Underlying Agreement (after
any applicable notice and cure period) by PESA, CCACA may deliver to the
Escrow Agent an affidavit, sworn to by the CCACA Representative (i) stating
that PESA has breached the Underlying Agreement, (ii) specifying the nature
of such breach, (iii) stating that any applicable notice and cure period
has lapsed with respect to such breach, and (iv) specifying the Escrowed
Property to be delivered to CCACA as a result of such breach. Promptly
after receipt of such affidavit (but in no event later than five (5)
business days after receipt of such affidavit), the Escrow Agent shall
deliver a copy thereof to PESA. Twenty (20) business days after the Escrow
Agent shall have delivered a copy of CCACA's notice to PESA, the Escrow
Agent shall deliver to CCACA the part of the Escrowed Property so demanded,
unless the Escrow Agent shall have been served with a court order
restraining it from making such a delivery.
(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 both
the PESA Representative and the CCACA 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.
(e) In the event of a Closing (as defined in the Underlying
Agreement) CCACA and PESA shall provide a Joint Written Direction to the
Escrow Agent advising the Escrow Agent to distribute the Escrowed Property
to CCACA.
(f) In the event that the Underlying Agreement is abandoned or
mutually terminated in accordance with the provisions thereof, CCACA and
PESA shall provide a Joint Written Direction to the Escrow Agent advising
the Escrow Agent to distribute the Escrowed Property to PESA.
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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, CCACA, 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, CCACA, 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 commercial bank,
trust company, or other financial institution with a combined capital and
surplus in excess of $10,000,000. 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
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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 and CCACA, jointly and severally, shall
promptly pay, upon demand, the reasonable fees and expenses of any such counsel.
9. INDEMNIFICATION OF ESCROW AGENT. From and at all times after the
date of this Escrow Agreement, PESA and CCACA, 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 and
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CCACA in writing, and PESA and CCACA 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 CCACA agree to pay such fees and expenses, or (b) PESA and/or CCACA 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 CCACA, 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 CCACA. All such fees and expenses payable by PESA and/or CCACA 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 CCACA, jointly and severally, upon demand by such
Indemnified Party. The obligations of PESA and CCACA 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 CCACA 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, as between PESA and
CCACA, the respective rights and obligations of PESA, on the one hand, and
CCACA, on the other hand, under the Underlying Agreement.
10. FEES AND EXPENSES OF ESCROW AGENT. PESA and CCACA shall
compensate Escrow Agent for its services hereunder in accordance with Schedule A
attached hereto and, in addition, 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 and CCACA, jointly and severally, upon demand by Escrow Agent.
The obligations of PESA and CCACA 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.
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(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) CCACA makes the following representations and warranties to
Escrow Agent:
(i) CCACA 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 CCACA, including any necessary member approval,
has been executed by duly authorized officers of CCACA, and
constitutes a valid and binding agreement of CCACA, enforceable
against CCACA in accordance with its terms.
(iii) The execution, delivery, and performance by CCACA 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 CCACA, any applicable law or regulation, any
court order or administrative ruling or decree to which CCACA 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 CCACA 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
CCACA hereunder and has full power and authority to execute, deliver,
and perform this Escrow Agreement, to execute and deliver
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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 CCACA Representative under this Agreement, all without further
consent or direction from, or notice to, CCACA 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.
12. 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.
13. 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.
5 Hub Drive
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
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If to CCACA 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 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:______________________________________
Facsimile Number: (704) 383-7316
or to such other address as each party may designate for itself by like notice.
14. 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.
15. 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.
16. 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.
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17. 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.
18. 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 CCACA,
the Representatives and Escrow Agent.
19. 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.
20. 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.
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21. 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 CCACA and become pecuniarily interested in any action in which PESA or
CCACA may be interested, and contract and lend money to PESA or CCACA 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 CCACA or for any other entity.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to
be executed under seal as of the date first above written.
BOARD OF DIRECTORS OF PESA, INC.
DIRECTORS OF PESA, INC. PESA, INC.
By: /s/ Eduardo Perez De Villegas By:/s/ Miguel S. Moraga
------------------------------- -----------------------------------
Name: Eduardo Perez De Villegas Name: Miguel S. Moraga
Title:
By: /s/ Tomas Rubinos Pinon CC ACQUISITION COMPANY A, L.L.C.
-------------------------------
Name: Tomas Rubinos Pinon
By:/s/ Michael I. Wellesley-Wesley
-----------------------------------
Name: Michael 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
CCACA REPRESENTATIVES
/s/ Michael I. Wellesley-Wesley
--------------------------------------
Name: Michael I. Wellesley-Wesley
/s/ Daniel I. DeWolf
--------------------------------------
Name: Daniel I. DeWolf
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, as Escrow Agent
By:/s/ Roy Davis
-----------------------------------
Name: Roy Davis
Title: Vice President
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ESCROW AGREEMENT Exhibit "E"
THIS ESCROW AGREEMENT, dated as of May 26, 1995 ("Escrow Agreement"), is by
and among Sepa Technologies Ltd., Co., a Georgia limited liability company
("SEPA"); CC Acquisition Company A, L.L.C., a Delaware limited liability company
("CCACA"); and First Union National Bank of North Carolina, a national banking
association, as Escrow Agent hereunder ("Escrow Agent").
BACKGROUND
A. SEPA, John A. Servizio, and CCACA have entered into a Stock Purchase
Agreement (the "Underlying Agreement"), dated as of the date hereof pursuant to
which CCACA will acquire common stock, par value .01 per share (the "Common
Stock") of Chyron Corporation (the "Company"). The Underlying Agreement
provides that on the date hereof, SEPA shall deposit with the Escrow Agent 14
million shares of Common Stock, duly endorsed in blank or accompanied by stock
powers duly endorsed in blank (the "Escrowed Property").
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. Pursuant to the Underlying Agreement, SEPA and CCACA have each
appointed the Representatives (as defined below) to represent them for all
purposes in connection with the funds to be deposited with Escrow Agent, the
Underlying Agreement, and this Escrow Agreement.
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:
"CCACA REPRESENTATIVE" shall mean Michael Wellesley-Wesley or Daniel
DeWolf, severally, or any other person designated in a writing signed by CCACA
and delivered to Escrow Agent and the SEPA Representative in accordance with the
notice provisions of this Escrow Agreement, to act as its representative under
this Escrow Agreement.
<PAGE>
"ESCROWED PROPERTY" shall mean the stock certificates representing
shares of the Common Stock of the Company, duly endorsed in blank or accompanied
by stock powers duly endorsed in blank, deposited with Escrow Agent pursuant to
this Agreement, together with any dividends and other income or distributions
thereon.
"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.
"REPRESENTATIVES" shall mean the SEPA Representative and the CCACA
Representative.
"SEPA REPRESENTATIVE" shall mean Miguel S. Moraga or Eduardo Perez de
Villages, severally, or any other person designated in a writing signed by SEPA
and delivered to Escrow Agent and the CCACA Representative in accordance with
the notice provisions of this Escrow Agreement, to act as its representative
under this Escrow Agreement.
2. APPOINTMENT OF AND ACCEPTANCE BY ESCROW AGENT. SEPA, CCACA, and
the Representatives on behalf of SEPA and CCACA 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, SEPA shall deposit with the Escrow Agent
a stock certificate or stock certificates representing 14 million shares of
Common Stock of the Company, duly endorsed in blank or accompanied with
stock powers duly endorsed in blank (the "SEPA Shares"). Until delivered
out of the escrow account, SEPA shall retain the right to vote the SEPA
Shares.
(b) The Escrow Agent acknowledges receipt of the SEPA Shares and
will hold such Escrowed Property safely in a segregated account.
4. DISBURSEMENT OF ESCROWED PROPERTY. The Escrowed Property shall be
disbursed and distributed as follows:
(a) In the event of a Closing (as defined in the Underlying
Agreement) CCACA and SEPA shall provide a Joint Written Direction to the
Escrow Agent to distribute five (5) million shares of the Common Stock to
CCACA.
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(b) The Escrow Agent shall, at any time, deliver such part of
the Escrowed Property as shall be set forth in an affidavit signed by both
the SEPA Representative and the CCACA Representative.
(c) 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.
(d) In the event that the Underlying Agreement is abandoned or
mutually terminated in accordance with the provisions thereof, CCACA and
SEPA shall provide a Joint Written Direction to the Escrow agent advising
the Escrow Agent to distribute the Escrowed Property to SEPA.
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 SEPA, CCACA, 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 SEPA, CCACA, 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.
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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 commercial bank,
trust company, or other financial institution with a combined capital and
surplus in excess of $10,000,000. 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. SEPA and CCACA, jointly and severally, shall
promptly pay, upon demand, the reasonable fees and expenses of any such counsel.
9. INDEMNIFICATION OF ESCROW AGENT. From and at all times after the
date of this Escrow Agreement, SEPA and CCACA, 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)
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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 SEPA
and CCACA in writing, and SEPA and CCACA 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) SEPA and/or CCACA agree to pay such fees and expenses, or (b)
SEPA and/or CCACA 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 SEPA and/or CCACA, 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 SEPA or CCACA. All such fees and expenses payable by SEPA
and/or CCACA 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 SEPA and CCACA, jointly and severally,
upon demand by such Indemnified Party. The obligations of SEPA and CCACA 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 SEPA or CCACA 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, as between SEPA and
CCACA, the respective rights and obligations of SEPA, on the one hand, and
CCACA, on the other hand, under the Underlying Agreement.
10. FEES AND EXPENSES OF ESCROW AGENT. SEPA and CCACA shall
compensate Escrow Agent for its services hereunder in accordance with Schedule
"A" attached hereto and, in addition, 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 SEPA and CCACA, jointly and severally, upon demand by Escrow Agent.
The obligations of SEPA and CCACA under this Section 10 shall survive any
termination of this Escrow Agreement and the resignation or removal of Escrow
Agent.
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<PAGE>
11. REPRESENTATIONS AND WARRANTIES.
(a) SEPA makes the following representations and warranties to
Escrow Agent:
(i) SEPA is a limited liability company duly organized,
validly existing, and in good standing under the laws of the State of
Georgia, 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 SEPA, including any necessary member approval, has
been executed by duly authorized officers of SEPA, and constitutes a
valid and binding agreement of SEPA, enforceable against SEPA in
accordance with its terms.
(iii) The execution, delivery, and performance by SEPA 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 SEPA, any applicable law or regulation, any court
order or administrative ruling or decree to which SEPA 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 SEPA 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 SEPA 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 SEPA Representative under this Agreement, all without
further consent or direction from, or notice to, SEPA 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) CCACA makes the following representations and warranties to
Escrow Agent:
(i) CCACA 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 CCACA, including any necessary member approval,
has been executed by duly authorized officers of CCACA, and
constitutes a valid and binding agreement of
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<PAGE>
CCACA, enforceable against CCACA in accordance with its terms.
(iii) The execution, delivery, and performance by CCACA 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 CCACA, any applicable law or regulation, any
court order or administrative ruling or decree to which CCACA 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 CCACA 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
CCACA 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 CCACA Representative under this Agreement, all without further
consent or direction from, or notice to, CCACA 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.
12. 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.
13. 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 SEPA at: Sepa Technologies Ltd., Co.
c/o Pesa, Inc.
5 Hub Drive
Melville, New York 11747
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<PAGE>
Attention: Mr. Miguel S. Moraga
Treasurer and Chief Financial Officer
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 CCACA at: Michael Wellesley-Wesley
c/o Camhy Karlinsky & Stein, LLP
1740 Broadway
New York, New York 10019
Attention: Daniel DeWolf
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 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:_______________________________________
Facsimile Number: (704) 383-7316
or to such other address as each party may designate for itself by like notice.
14. 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.
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<PAGE>
15. 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.
16. 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.
17. 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.
18. 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 SEPA and CCACA,
the Representatives and Escrow Agent.
19. 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.
20. 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.
21. 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
SEPA or CCACA and become pecuniarily interested in any action in which SEPA or
CCACA may be interested, and contract and lend money to SEPA or CCACA 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 SEPA or CCACA or for any other entity.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to
be executed under seal as of the date first above written.
SEPA TECHNOLOGIES, LTD., CO.
By:/s/ John A. Servizio
------------------------------------
Name: John A. Servizio
Title: Chairman & CEO
CC ACQUISITION COMPANY A, L.L.C.
By:/s/ Michael I. Wellesley-Wesley
------------------------------------
Name: Michael I. Wellesley-Wesley
Title: Vice President
SEPA REPRESENTATIVES
/s/ Miguel S. Moraga
---------------------------------------
Name: Miguel S. Moraga
/s/ Eduardo Perez De Villegas
---------------------------------------
Name: Eduardo Perez De Villegas
CCACA REPRESENTATIVES
/s/ Michael I. Wellesley-Wesley
---------------------------------------
Name: Michael I. Wellesley-Wesley
/s/ Daniel I. DeWolf
---------------------------------------
Name: Daniel I. DeWolf
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, as Escrow Agent
By:/s/ Roy Davis
------------------------------------
Name: Roy Davis
Title: Vice President
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<PAGE>
Exhibit "F"
JOINT FILING AGREEMENT
This Joint Filing Agreement, made as of this 1st day of June 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"), ALLAN R. TESSLER, an individual ("Tessler"), and MICHAEL
WELLESLEY-WESLEY, an individual ("Wellesley-Wesley").
CCACA, CCACB, Tessler, and Wellesley-Wesley each agree to file one
statement on Schedule 13D on behalf of each of them pursuant to Rule 13d-2(f)
promulgated under the Securities Exchange Act of 1934, as amended.
CC ACQUISITION COMPANY A, L.L.C.
By: /s/ Michael Wellesley-Wesley
----------------------------
Michael Wellesley-Wesley
CC ACQUISITION COMPANY B, L.L.C.
By: /s/ Michael Wellesley-Wesley
----------------------------
Michael Wellesley-Wesley
/s/ Allan R. Tessler
------------------------------
ALLAN R. TESSLER
/s/ Michael Wellesley-Wesley
------------------------------
MICHAEL WELLESLEY-WESLEY
