SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
CHYRON CORPORATION
- ---------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE PER SHARE
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(Title of Class of Securities)
171605108
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(CUSIP Number)
John C. Jost, Dow, Lohnes & Alberston
1255 Twenty-Third Street, N.W., Washington, D.C. 20037
(202) 857-2680
- -----------------------------------------------------------------
(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 the statement
[ ]. (A fee is not required only if the reporting person: (1)
has a previous statement on file reporting beneficial ownership
of more than five percent of the class of securities described in
Item 1; and (2) has filed no amendment subsequent thereto
reporting beneficial ownership of five percent or less of such
class.) (See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent. <PAGE>
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 171605108
-------------------------
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sepa Technologies Ltd. Co.
c/o Percival Hudgins & Company, Inc.
3100 Cumberland Circle, Suite 1525
Atlanta, Georgia 30339-5939
-
2. CHECK THE APPROPRIATE LINE IF A MEMBER OF A GROUP*
(a) (b)
---- ----
Not Applicable
3. SEC USE ONLY
4. SOURCE OF FUNDS*
00
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS
2(D) OR 2(E)
Not Applicable
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Georgia
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON
WITH
7. SOLE VOTING POWER
53,414,732
8. SHARED VOTING POWER
0
9. SOLE DISPOSITIVE POWER
53,414,732
10. SHARED DISPOSITIVE POWER
0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
53,414,732
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
Not Applicable
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
61.1%
14. TYPE OF REPORTING PERSON*
HC
<PAGE>
ITEM 1. SECURITY AND ISSUER.
See statement on Schedule 13D, as amended by Amendment 1 thereto
and Amendment 2 thereto, previously filed.
This Amendment 3 to the statement on Schedule 13D dated June 24,
1994 and filed July 5, 1994, as amended by Amendment 1 thereto
dated August 2, 1994 and filed August 5, 1994 and as amended by
Amendment 2 thereto dated May 15, 1995 and filed May 15, 1995, is
being filed by Sepa Technologies Ltd., Co. (hereinafter "SEPA")
with regard to the common stock, par value $0.01 per share,
(hereinafter "COMMON STOCK") of Chyron Corporation (hereinafter
"COMPANY"). Sepa owns 14,000,000 shares of Common Stock. In
addition, Sepa owns all of the issued and outstanding shares of
stock of Pesa Electronica, S.A., a Spanish corporation, which in
turn owns all of the issued and outstanding shares of stock of
Pesa, Inc., a Delaware corporation (hereinafter "PESA"). Pesa
owns 59,414,732 shares of Common Stock, over which Sepa has
ultimate voting and investment control. Accordingly, Sepa in the
aggregate beneficially owns 73,414,732 shares of Common Stock.
The purpose of this Amendment 3 is to report the sale by Pesa of
10,000,000 shares of Common Stock on May 26, 1995, the intended
sale by Pesa of 49,414,732 shares of Common Stock and the
intended sale by Sepa of 5,000,000 shares of Common Stock.
ITEM 2. IDENTITY AND BACKGROUND.
No material change - see statement on Schedule 13D, as amended by
Amendment 1 thereto and Amendment 2 thereto, previously filed.
Item 3. Source and Amount of Funds or Other Considerations.
No material change - see statement on Schedule 13D, as amended by
Amendment 1 thereto and Amendment 2 thereto, previously filed.
ITEM 4. PURPOSE OF TRANSACTION.
(a) See statement on Schedule 13D, as amended by Amendment
1 thereto and Amendment 2 thereto, previously filed.
Pursuant to the agreements in principle executed by
Pesa and Sepa with the MWW Group on May 11 and May 12,
1995, Pesa and Sepa each separately executed on May 26,
1995 a Stock Purchase Agreement (hereinafter
Collectively "STOCK PURCHASE AGREEMENTS") pursuant to
which Pesa and Sepa did and would sell in the aggregate
64,414,732 shares of Common Stock for total
consideration in the amount of $32,319,071.36, as
summarized below. Copies of the Stock Purchase
<PAGE>
Agreements are attached hereto as Exhibits 1 and 2,
respectively, and are incorporated herein by reference.
At the execution of, and pursuant to, the Stock
Purchase Agreements, on May 26, 1995 Pesa sold to CC
Acquisition Company A, L.L.C. (an affiliate of the MWW
Group) (hereinafter "ACQUISITION COMPANY A") 10,000,000
shares of Common Stock (hereinafter "FIRST TRANCHE OF
SHARES") for $5,000,000 in cash consideration paid on
the date of execution.
At the execution of, and pursuant to, the Stock
Purchase Agreements, on May 26, 1995 (i) Pesa delivered
to Acquisition Company A stock certificates
representing 10,000,000 shares of Common Stock
registered in the name of Acquisition Company A, which
the latter immediately endorsed in blank and deposited
in escrow (hereinafter "SECOND TRANCHE OF SHARES");
(ii) Pesa deposited in escrow stock certificates
representing 10,000,000 shares of Common Stock endorsed
in blank (hereinafter "THIRD TRANCHE OF SHARES"); and
(iii) Sepa deposited in escrow stock certificates
representing 14,000,000 shares of Common Stock Endorsed
in blank (hereinafter "SEPA TRANCHE OF SHARES").
At "closing" of the Stock Purchase Agreements (as that
term is defined therein),(i) the escrow agent will
deliver to Acquisition Company A the Second and Third
Tranche of Shares, and Acquisition Company A will pay
to Pesa $10,600,000 in cash; (ii) Pesa will transfer to
CC Acquisition Company B, L.L.C. (an affiliate of the
MWW Group)(hereinafter "ACQUISITION COMPANY B")
29,414,732 shares of Common Stock (hereinafter "FOURTH
TRANCHE OF SHARES") -- which Acquisition Company B will
immediately deposit in escrow endorsed in blank -- in
return for $14,119,071.36, payable in installments over
a 47-month period and which shares will be released
from escrow as the installments are paid; and (iii) the
escrow agent will deliver to Acquisition Company A
5,000,000 of the Sepa Tranche of Shares, duly endorsed
thereto, the escrow agent will deliver to Sepa
9,000,000 of the Sepa Tranche of Shares, and
Acquisition Company A will pay to Sepa $2,600,000 in
cash.
In the event that Acquisition Company B were to fail to
make an above-described installment payment, the escrow
agent would deliver the shares relating to such payment
to Pesa, which would be Pesa's sole remedy against
Acquisition Company B.
<PAGE>
In the event that the Stock Purchase Agreements were
not to close (i) due to a breach by Acquisition Company
A, the escrow agent would deliver the Second and Third
Tranche of Shares to Pesa; (ii) due to a breach by
Pesa, the escrow agent would deliver the Second Tranche
of Shares to Acquisition Company A and the Third
Tranche of Shares to Pesa; and (iii) due to the Stock
Purchase Agreement's abandonment or mutual termination,
the escrow agent would deliver the Second and Third
Tranches of Shares to Pesa.
Closing on the Stock Purchase Agreements is contingent
upon, among other things, the receipt of requisite
governmental, judicial, corporate and third-person
approvals.
(b) No material change - see statement on Schedule
13D, as amended by Amendment 1 thereto and
Amendment 2 thereto, previously filed.
(c) No material change - see statement on Schedule
13D, as amended by Amendment 1 thereto and
Amendment 2 thereto, previously filed.
(d) See statement on Schedule 13D, as amended by
Amendment 1 thereto and Amendment 2 thereto,
previously filed.
Immediately prior to execution of the Stock
Purchase Agreements, the Board of Directors of the
Company unanimously approved the Stock Purchase
Agreements and elected Michael Wellesley-Wesley,
Vice President of Acquisition Company A and of
Acquisition Company B, as a member of the Board.
A condition of closing of the Stock Purchase
Agreements is the resignation of Sepa's and Pesa's
representatives on the Board of Directors of the
Company and the election thereto of Acquisition
Company A's and Acquisition Company B's
representatives, thereby resulting in their
obtaining control of the Board.
Copies of the Stock Purchase Agreements are
attached hereto as Exhibits 1 and 2, respectively,
and are incorporated herein by reference.
(e)-(j) No material change - see statement on
Schedule 13D, as amended by Amendment 1
thereto and Amendment 2 thereto, previously
filed.
<PAGE>
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) See statement on Schedule 13D, as amended by
Amendment 1 thereto and Amendment 2 thereto,
previously filed.
Copies of the Stock Purchase Agreements are
attached hereto as Exhibits 1 and 2 and are
incorporated herein by reference.
Following the execution of the Stock Purchase
Agreements and the resulting sale by Pesa of the
First Tranche of Shares to Acquisition Company A
on May 26, 1995, Sepa is the beneficial owner in
the aggregate of 53,414,732 shares of Common
Stock, of which 14,000,000 are directly owned by
Sepa and 39,414,732 are indirectly owned through
Pesa (albeit excluded from said 39,414,732 shares
is the Second Tranche of Shares -- 10,000,000 --
which are registered in the name of Acquisition
Company A but held in escrow endorsed in blank).
The Company has advised Sepa that as of May 2,
1995 there were 87,460,479 shares of Common Stock
issued and outstanding. Accordingly, as of May
26, 1995, Sepa is the beneficial owner of
approximately 61.5% of the issued and outstanding
shares of Common Stock (72.5% if the Second
Tranche of Shares were included).
In the event that the Stock Purchase Agreements
were to close, Sepa would in the aggregate
beneficially own 9,000,000 shares of Common Stock,
all of which would be directly owned by Sepa and
none by Pesa. The Company has advised Sepa that
as of May 2, 1995 there were 87,460,479 shares of
Common Stock issued and outstanding. Therefore,
assuming that the Stock Purchase Agreements were
to close, Sepa would subsequently beneficially own
approximately 10.3% of the issued and outstanding
shares of Common Stock.
Copies of the Stock Purchase Agreements are
attached hereto as Exhibits 1 and 2, respectively,
and are incorporated herein by reference.
(b) See statement on Schedule 13D, as amended by
Amendment 1 thereto and Amendment 2 thereto,
previously filed.
The Stock Purchase Agreements provide that (i)
Acquisition Company A has the right to vote the
Second Tranche of Shares held in escrow, (ii) Pesa
has the right to vote the Third Tranche of Shares
held in escrow, (iii) Sepa has the right to vote
the Sepa Tranche of Shares held in escrow, and
(iv) Acquisition Company B has the right to vote
<PAGE>
the Fourth Tranche of Shares held in escrow.
The Stock Purchase Agreements provide that until
the "Release Time" (as that term is defined
therein), Sepa and Pesa must vote their shares of
Common Stock against (i) any merger,
consolidation, reorganization, other business
combination or capitalization involving the
Company, (ii) any sale of assets of the Company,
(iii) any stock split, stock dividend or reverse
stock split relating to any class or series of the
Company's stock, (iv) any issuance of any shares
of capital stock of the Company, any option,
warrant or other right calling for the issuance of
any such shares of capital stock, or any security
convertible into or exchangeable for any such
shares of capital stock, (v) any authorization of
any other class or series of stock of the Company,
(vi) the amendment of the certificate of
incorporation (or other charter document) or the
by-laws of the Company, or (vii) any other
proposition the effect which may be to prohibit,
restrict, or delay materially the consummation of
any of the transactions contemplated by the Stock
Purchase Agreements or to impair materially the
consummation of any of the transactions
contemplated by the Stock Purchase Agreements or
to impair materially the contemplated benefits to
Acquisition Company A and Acquisition Company B of
the transactions contemplated by the Stock
Purchase Agreements.
Furthermore, the Stock Purchase Agreements provide
that until the Release Time, Sepa and Pesa must
use their best efforts to prevent the Company from
granting any stock options under the Chyron
Corporation 1995 Long-Term Incentive Plan.
The term "Release Time" is defined to mean the
earlier to occur of (i) closing, (ii) the rightful
termination of the Stock Purchase Agreements by
Sepa and Pesa, (iii) the abandonment of the Stock
Purchase Agreements by the parties, or (iv)
September 30, 1995.
Upon closing of Sepa's Stock Purchase Agreement,
Sepa would agree to vote its remaining 9,000,000
shares of Common Stock in accordance with the
direction of Acquisition Company A and in
furtherance thereof would deliver at the closing
to Acquisition Company A its proxy relating to the
voting of such Common Stock.
Upon closing of Sepa's Stock Purchase Agreement,
Sepa would agree not to sell or otherwise dispose
<PAGE>
of its remaining 9,000,000 shares of Common Stock
except (i) to an "Affiliate" of Sepa (as that term
is defined in the Stock Purchase Agreement), (ii)
subject to Acquisition Company A's right of first
refusal, or (iii) pursuant to certain permitted
sales under Rule 144 promulgated under the
Securities Act of 1933, as amended, provided that
Sepa may not make any such Rule 144 sales during
the two-year period following the closing and
further provided that the annual aggregate amount
of shares sold by Sepa pursuant to Rule 144 does
not exceed 500,000 shares.
Copies of the Stock Purchase Agreements are
attached hereto as Exhibits 1 and 2, respectively,
and are incorporated herein by reference.
(c)-(e) No material change - see statement on Schedule
13D, as amended by Amendment 1 thereto and
Amendment 2 thereto, previously filed.
ITEM 6. CONTRACTS, AGREEMENTS, UNDERTAKINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
See statement on Schedule 13D, as amended by Amendment 1 thereto
and Amendment 2 thereto, previously filed.
See Item 4 and Item 5 above, which are hereby incorporated herein
by reference.
The Sepa Stock Purchase Agreement further provides that (a)
Acquisition Company A will not take any action to cancel the
Management Agreement between Sepa and the Company prior to
December 31, 1997, (b) the management fees payable thereunder
will be subject to an annual limit of $1.5 million, and (c) the
parties will negotiate in good faith the modification of certain
terms of said agreement in order to proved for the deferral of
payments (upon payment of interest thereon) to Sepa thereunder in
light of the cash flow of the Company.
The Pesa Stock Purchase Agreement further provides that the
Company and Acquisition Company A will enter into a registration
rights agreement with regard to the First Tranche of Shares.
Copies of the Stock Purchase Agreements are attached hereto as
Exhibits 1 and 2 and are incorporated herein by reference.
<PAGE>
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 - Stock Purchase Agreement by and among CC
Acquisition Company A, L.L.C., CC Acquisition
Company B, L.L.C., and Pesa, Inc., dated May 26,
1995.
Exhibit 2 - Stock Purchase Agreement by and among CC
Acquisition Company A, L.L.C., Sepa Technologies
Ltd., Co., and John A. Servizio, dated May 26,
1995.
SIGNATURE
After reasonable inquiry and to the best of his
knowledge and belief, the undersigned certifies that the
information set forth in this statement is true, complete and
correct.
SEPA TECHNOLOGIES LTD., CO.
Date: 5/26/95 By: /s/ Miguel S. Moraga
----------- ----------------------------
Miguel S. Moraga
Treasurer and Chief
Financial Officer
<PAGE>
EXHIBIT INDEX
DOCUMENT
Exhibits:
Exhibit 1 Stock Purchase Agreement by and among
CC Acquisition Company A, L.L.C.,
CC Acquisition Company B, L.L.C., and
Pesa, Inc., dated May 26, 1995
Exhibit 2 Stock Purchase Agreement by and among
CC Acquisition Company A, L.L.C.,
Sepa Technologies Ltd., Co., and
John A. Servizio, dated May 26, 1995
EXHIBIT 1
STOCK PURCHASE AGREEMENT
BY AND AMONG
CC ACQUISITION COMPANY A, L.L.C.,
CC ACQUISITION COMPANY B, L.L.C.,
AND
PESA, INC.
<PAGE>
TABLE OF CONTENTS
Page
I. PURCHASE AND SALE . . . . . . . . . . . . . . . . . . . 1
1.1 Terms of Purchase and Sale. . . . . . . . . . . . 1
1.2 Closing . . . . . . . . . . . . . . . . . . . . . 11
1.3 Other Transactions. . . . . . . . . . . . . . . . 11
II. REPRESENTATIONS AND WARRANTIES OF SELLER. . . . . . . . 12
2.1 Share Ownership . . . . . . . . . . . . . . . . . 12
2.2 Litigation and Claims . . . . . . . . . . . . . . 13
2.3 Corporate Existence . . . . . . . . . . . . . . . 13
2.4 Corporate Authority . . . . . . . . . . . . . . . 13
2.5 Restrictions . . . . . . . . . . . . . . . . . . 13
III. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. . . . 14
3.1 Organization . . . . . . . . . . . . . . . . . . 14
3.2 Authority to Buy. . . . . . . . . . . . . . . . . 14
3.3 Litigation and Claims . . . . . . . . . . . . . . 15
3.4 Restrictions. . . . . . . . . . . . . . . . . . . 15
3.5 Purchases for Investment Purposes . . . . . . . . 15
3.6 Sophisticated Investor. . . . . . . . . . . . . . 16
3.7 Restricted Securities . . . . . . . . . . . . . . 17
IV. CONDITIONS TO OBLIGATIONS OF THE PURCHASERS . . . . . . 17
4.1 Accuracy of Representations and Compliance
With Conditions . . . . . . . . . . . . . . . . . 18
4.2 Opinion of Counsel. . . . . . . . . . . . . . . . 18
4.3 Other Closing Documents . . . . . . . . . . . . . 19
4.4 Legal Action. . . . . . . . . . . . . . . . . . . 20
4.5 No Governmental Action. . . . . . . . . . . . . . 20
4.6 CCACA Registration Rights Agreement . . . . . . . 21
4.7 Consents. . . . . . . . . . . . . . . . . . . . . 21
V. CONDITIONS TO OBLIGATIONS OF SELLER . . . . . . . . . . 21
5.1 Accuracy of Representations and Compliance
With Conditions . . . . . . . . . . . . . . . . . 21
5.2 Opinion of Counsel. . . . . . . . . . . . . . . . 22
5.3 Other Closing Documents . . . . . . . . . . . . . 22
5.4 Legal Action. . . . . . . . . . . . . . . . . . . 22
5.5 No Governmental Action. . . . . . . . . . . . . . 23
VI. COVENANTS OF SELLER . . . . . . . . . . . . . . . . . . 23
6.1 Control of Board. . . . . . . . . . . . . . . . . 23
6.2 Stock Options . . . . . . . . . . . . . . . . . . 24
6.3 Advice of Changes . . . . . . . . . . . . . . . . 24
6.4 Public Statements . . . . . . . . . . . . . . . . 24
6.5 Other Proposals . . . . . . . . . . . . . . . . . 25
6.6 Voting by Stockholders. . . . . . . . . . . . . . 27
i
<PAGE>
Page
VII. COVENANTS OF PURCHASERS . . . . . . . . . . . . . . . . 27
7.1 Confidentiality . . . . . . . . . . . . . . . . . 27
7.2 Advice of Changes . . . . . . . . . . . . . . . . 28
7.3 Public Statements . . . . . . . . . . . . . . . . 28
VIII. INDEMNIFICATION; SURVIVAL; LIMITATIONS OF LIABILITY . . 29
8.1 Indemnification . . . . . . . . . . . . . . . . . 29
8.2 Survival. . . . . . . . . . . . . . . . . . . . . 30
IX. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 31
9.1 Brokerage Fees. . . . . . . . . . . . . . . . . . 31
9.2 Further Actions . . . . . . . . . . . . . . . . . 32
9.3 Submission to Jurisdiction. . . . . . . . . . . . 32
9.4 Merger; Modification. . . . . . . . . . . . . . . 32
9.5 Notices . . . . . . . . . . . . . . . . . . . . . 32
9.6 Waiver. . . . . . . . . . . . . . . . . . . . . . 34
9.7 Binding Effect. . . . . . . . . . . . . . . . . . 34
9.8 No Third-Party Beneficiaries. . . . . . . . . . . 34
9.9 Separability. . . . . . . . . . . . . . . . . . . 35
9.10 Headings. . . . . . . . . . . . . . . . . . . . . 35
9.11 Counterparts; Governing Law . . . . . . . . . . . 35
9.12 English Language. . . . . . . . . . . . . . . . . 35
9.13 Registration Rights . . . . . . . . . . . . . . . 35
ii<PAGE>
STOCK PURCHASE AGREEMENT
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.
1.1 Terms of Purchase and Sale.
<PAGE>
(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:
(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
- 2 -
<PAGE>
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. 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 of nature
whatsoever. Immediately upon the valid
- 3 -
<PAGE>
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
- 4 -
<PAGE>
"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
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
- 5 -
<PAGE>
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 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.
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<PAGE>
(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
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
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<PAGE>
funds, to an account in the United States
designated by 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
- 8 -
<PAGE>
with stock powers duly endorsed in blank
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 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'
- 9 -
<PAGE>
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'
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).
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<PAGE>
(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.
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 1O: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.
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.
(b) On the Closing Dale, the Seller shall cause
its remaining designees to resign, seriatim, from the Board
of Directors of the Company, and in their place, the Seller
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<PAGE>
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:
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.
- 12 -
<PAGE>
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.
2.3 Corporate Existence.
The Seller is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware.
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.
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,
- 13 -<PAGE>
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 Seller.
The transfer of the Acquisition Shares to the Purchasers 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:
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.
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
- 14 -
<PAGE>
each Purchaser, and is enforceable as to each Purchaser in
accordance with its terms.
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 knowledge) in prospect
therefor, that would prohibit the transactions contemplated
pursuant to this Agreement.
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.
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
- 15 -
<PAGE>
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.
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.
- 16 -<PAGE>
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 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
- 17 -<PAGE>
satisfaction of the following conditions:
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 compiled 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.
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:
(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'
- 18 -
<PAGE>
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 entitles 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 court s and governmental authorities and such sale
and transfer cannot be rescinded by any Spanish judicial or
governmental authority.
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.
- 19 -
<PAGE>
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.
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.
- 20 -
<PAGE>
4.6 CCACA Registration Rights Agreement.
Acquisition Company A and the Company shall have
executed and delivered the CCACA Registration Rights Agreement.
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:
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.
- 21 -<PAGE>
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.
(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.
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.
5.4 Legal Action.
There shall not have been instituted or threatened any
- 22 -
<PAGE>
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.
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 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:
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.
- 23 -<PAGE>
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.
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.
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
- 24 -
<PAGE>
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.
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 an 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
- 25 -
<PAGE>
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 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.
- 26 -
<PAGE>
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 Purchasers of
the transactions contemplated by this Agreement.
VII. COVENANTS OF PURCHASERS.
The Purchasers covenant and agree as follows:
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
- 27 -<PAGE>
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.
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 absence of such factor
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.
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
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<PAGE>
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.
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.
(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
- 29 -<PAGE>
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.
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
noliability or obligation with respect to
any claim for a breach of a representation
or warranty under this Agreement made after
- 30 -
<PAGE>
two (2) years from the Closing Date; and
(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.
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
- 31 -<PAGE>
obligation with respect to any claim for a fee, commission or
other compensation claimed by Percival Hudgins against the
company.
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.
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.
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.
9.5 Notices.
Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be
- 32 -
<PAGE>
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 & Slain LLP
1740 Broadway
New York, New York 10019
Attn.: Dan DeWolf, Esq.
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
- 33 -<PAGE>
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.
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.
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).
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).
- 34 -
<PAGE>
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.
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.
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.
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.
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
- 35 -
<PAGE>
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.
/s/MIGUEL S. MORAGA /s/M.I. WELLESLEY-WESLEY
By: --------------- By: --------------------------
Name:MIGUEL S. MORAGA Name:M.I. WELLESLEY-WESLEY
Title: Title: VICE PRESIDENT
/s/ Eduardo Perez de Villeags
EDUARDO PEREZ DE VILLEGAS
/s/ Tomas Rubinos Pinon
TOMAS RUBINOS PINON
CC ACQUISITION COMPANY B, L.L.C.
/s/ M.I. Wellesley-Wesly
By: -------------------------
Name: M.I. WELLESLEY-WESLEY
Title: VICE PRESIDENT
SCHEDULE 2.1
Liens, Security Interests, Etc.
1. Pledge Agreement by and between Pesa, Inc. and Dresdner Bank
Agreement, dated June 29, 1994 (10 million Chyron corporation
shares -- Stock certificates U74787 through U74886).
2. Pledge Agreement by and between Pesa, Inc. and Extebank,
dated August 1,1994 (7,500'000 Chyron Corporation shares --
Stock Certificates U77222 through U77229).
3. Pledge Agreement by and between Pesa, Inc. and Dow, Lohnes &
Albertson, dated January 1, 1995 (1 million Chyron
Corporation Shares -- Stock Certificate U77221).
EXHIBIT 2
STOCK PURCHASE AGREEMENT
BY AND AMONG
CC ACQUISITION COMPANY A, L.L.C.,
SEPA TECHNOLOGIES LTD., CO.,
AND
JOHN A. SERVIZIO
<PAGE>
TABLE OF CONTENTS
PAGE
I. PURCHASE AND SALE . . . . . . . . . . . . . . . 1
1.1 Terms of Purchase and Sale . . . . . . . . 1
1.2 Closing. . . . . . . . . . . . . . . . . . 6
1.3 Other Transactions . . . . . . . . . . . . 6
II. REPRESENTATIONS AND WARRANTIES OF SELLER. . . . 6
2.1 Share Ownership. . . . . . . . . . . . . . 6
2.2 Litigation and Claims. . . . . . . . . . . 7
2.3 Organization . . . . . . . . . . . . . . . 7
2.4 Authority to Sell. . . . . . . . . . . . . 7
2.5 Restrictions . . . . . . . . . . . . . . . 8
III. REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER . . . . . . . . . . . . . . . . . . . 8
3.1 Organization . . . . . . . . . . . . . . . 8
3.2 Authority to Buy . . . . . . . . . . . . . 9
3.3 Litigation and Claims. . . . . . . . . . . 9
3.4 Restrictions . . . . . . . . . . . . . . . 9
3.5 Purchases for Investment Purposes Only . . 10
3.6 Sophisticated Investor . . . . . . . . . . 10
3.7 Restricted Securities. . . . . . . . . . . 11
IV. CONDITIONS TO OBLIGATIONS OF THE PURCHASER. . . 12
4.1 Accuracy of Representations and
Compliance With Conditions . . . . . . . . 12
4.2 Opinion of Counsel . . . . . . . . . . . . 12
4.3 Other Closing Documents. . . . . . . . . . 13
4.4 Legal Action . . . . . . . . . . . . . . . 14
4.5 No Governmental Action . . . . . . . . . . 14
4.6 Pesa Closing . . . . . . . . . . . . . . . 15
V. CONDITIONS TO OBLIGATIONS OF SELLER . . . . . . 15
5.1 Accuracy of Representations and
Compliance With Conditions . . . . . . . . 15
5.2 Opinion of Counsel . . . . . . . . . . . . 15
5.3 Other Closing Documents. . . . . . . . . . 16
5.4 PESA Agreement . . . . . . . . . . . . . . 16
5.5 Legal Action . . . . . . . . . . . . . . . 16
5.6 No Governmental Action . . . . . . . . . . 17
VI. COVENANTS OF SELLER AND SERVIZIO. . . . . . . . 17
6.1 Control of Board . . . . . . . . . . . . . 17
6.2 Stock Options. . . . . . . . . . . . . . . 18
6.3 Advice of Changes. . . . . . . . . . . . . 18
6.4 Public Statements. . . . . . . . . . . . . 18
6.5 Other Proposals. . . . . . . . . . . . . . 19
6.6 Voting by Stockholders . . . . . . . . . . 21
6.7 Voting . . . . . . . . . . . . . . . . . . 22
- i -<PAGE>
VII. COVENANTS OF PURCHASER. . . . . . . . . . . . . 22
7.1 Confidentiality. . . . . . . . . . . . . . 22
7.2 Management Agreement . . . . . . . . . . . 22
7.3 Advice of Changes. . . . . . . . . . . . . 23
7.4 Public Statements. . . . . . . . . . . . . 23
VIII. INDEMNIFICATION; SURVIVAL; LIMITATIONS
ON LIABILITY. . . . . . . . . . . . . . . . . . 24
8.1 Indemnification. . . . . . . . . . . . . . 24
8.2 Survival . . . . . . . . . . . . . . . . . 25
IX. MISCELLANEOUS . . . . . . . . . . . . . . . . . 26
9.1 Brokerage Fees . . . . . . . . . . . . . . 26
9.2 Further Actions. . . . . . . . . . . . . . 27
9.3 Submission to Jurisdiction . . . . . . . . 27
9.4 Merger; Modification . . . . . . . . . . . 27
9.5 Notices. . . . . . . . . . . . . . . . . . 27
9.6 Waiver . . . . . . . . . . . . . . . . . . 29
9.7 Binding Effect . . . . . . . . . . . . . . 29
9.8 No Third-Party Beneficiaries . . . . . . . 29
9.9 Separability . . . . . . . . . . . . . . . 30
9.10 Headings . . . . . . . . . . . . . . . . . 30
9.11 Counterparts; Governing Law. . . . . . . . 30
9.12 English Language . . . . . . . . . . . . . 30
- ii -<PAGE>
STOCK PURCHASE AGREEMENT
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.
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
<PAGE>
aggregate purchase price of Two Million Six Hundred 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,
-2-<PAGE>
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
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
-3-<PAGE>
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
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
-4-<PAGE>
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; provide, however, that no such sales shall be made
-5-
<PAGE>
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.
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.
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:
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
-6-
<PAGE>
title to the Acquisition Shares, free and clear of all liens,
security interests, pledges, charges, claim 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
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.
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.
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.
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
-7-<PAGE>
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.
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,
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:
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.
-8-<PAGE>
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.
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 knowledge) in prospect therefor, that
would prohibit the transactions contemplated pursuant to this
Agreement.
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
-9-<PAGE>
Affiliate thereof for the execution, delivery, or performance of
this Agreement by the Purchaser.
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.
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 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
-10-<PAGE>
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.
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,
-11-<PAGE>
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 PURCHASER.
The obligations of the Purchaser under this Agreement are
subject, at the option of the Purchaser, to the satisfaction of
the following conditions:
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.
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
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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 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.
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
-13-<PAGE>
have been met and otherwise to carry out the provisions of this
Agreement.
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.
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
-14-<PAGE>
benefits to the Purchaser of any of the transactions contemplated
by this Agreement.
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:
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 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.
5.2 Opinion Counsel.
The Purchaser shall have delivered to the Seller on the
Closing Date the opinion of counsel to the Purchaser, in form and
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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.
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.
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.
5.5 Legal Action.
There shall not have been instituted or threatened any
legal proceeding relating to, or seeking to prohibit or otherwise
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challenge the consummation of, the transactions contemplated by
this Agreement, or to obtain substantial damages with respect
thereto.
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.
VI. COVENANTS OF SELLER AND SERVIZIO.
The Seller and Servizio covenant and agree as follows:
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.
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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.
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.
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 consent of the Purchasers, which consent shall not
be unreasonably withheld. Notwithstanding the foregoing, nothing
contained herein shall prevent the Seller or Servizio from
-18-<PAGE>
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.
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
-19-<PAGE>
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 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
-20-<PAGE>
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.
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
-21-<PAGE>
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.
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.
VII. COVENANTS OF PURCHASER.
The Purchaser covenants and agrees as follows:
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.
7.2 Management Agreement.
(a) The Purchaser shall not take any action to cancel
-22-<PAGE>
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.
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 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.
7.4 Public Statements.
Until the Release Time, the Purchaser shall not
disseminate any information to the public regarding this
-23-<PAGE>
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.
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.
(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
-24-<PAGE>
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.
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.
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
-26-<PAGE>
other compensation claimed by Percival Hudgins against the
Company.
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.
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.
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.
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
-27-<PAGE>
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):
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
-28-<PAGE>
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.
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 of any other tem of this Agreement. Any waiver must be
in writing.
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).
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).
-29-<PAGE>
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.
9.10 Headings.
The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the
in the construction or interpretation of this Agreement.
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.
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.
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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.
/s/John A. Servizio /s/ M.I. Wellesly-Wesley
By:-------------------- By:-------------------------
Name: John A. Servizio Name: M.I. Wellesly-Wesley
Title: Chairman & CEO Title: Vice President
/s/ John A. Servizio
- -----------------------
John A. Servizio
<PAGE> -31-
