August 9, 1995
Securities and Exchange
450 5th Street, NW
Attention: Filing Desk
Stop 1-4
Washington, DC 20549-1004
Gentlemen:
The attached is Form 8-KA, which is an Amendment to the Form
8-K filed on August 8, 1995. This Amendment is Exhibit 1,
which was mentioned in the Form 8-K.
Please note that we have included the first page of the Form
8-K filed yesterday for your reference.
Very truly yours,
Patricia Lampe
Chief Financial Officer
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT - July 25, 1995
(Date of Earliest Event Reported)
CHYRON CORPORATION
(Exact name of registrant as specified in its charter)
New York
(State or other jurisdiction
of incorporation)
1-9014
(Commission File Number)
11-2117385
(I.R.S. Employer
Identification No.)
5 Hub Drive
Melville, New York 11747
(Address of principal executive offices)
Registrant's telephone number, including area code: (516) 845-2000
<PAGE>
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of
July 25, 1995, by and among CC ACQUISITION COMPANY A, L.L.C.,
a Delaware limited liability company ("CCACA"), CC
ACQUISITION COMPANY B, L.L.C., a Delaware limited liability
company ("CCACB" and together with CCACA, "CCAC"), WPG
CORPORATE DEVELOPMENT ASSOCIATES IV, L.P., a Delaware limited
partnership ("CDA"), WPG CORPORATE DEVELOPMENT ASSOCIATES IV
(OVERSEAS), L.P., a Cayman Islands exempted limited
partnership ("CDAO"), WPG ENTERPRISE FUND II, L.P., a
Delaware limited partnership ("WPGII"), Weiss, Peck & Greer
Venture Associates III, L.P., a Delaware limited partnership
("WPGIII"), Westpool Investment Trust plc, a public limited
company organized under the laws of England ("WIT"), Lion
Investments Limited, a limited company organized under the
laws of England ("Lion"), and CHARLES M. DIKER (such
individual together with CDA, CDAO, WPGII, WPGIII, WIT and
Lion, the "New Investor Group").
W I T N E S S E T H:
WHEREAS, CCACA, CCACB and Pesa, Inc., a
Delaware corporation ("Pesa") have entered into a Stock
Purchase Agreement dated May 26, 1995 for the purchase by
CCACA and CCACB of 59,414,732 shares of common stock, par
value $.01 per share (the "Common Stock"), of Chyron
Corporation, a New York corporation (the "Company"), from
Pesa (the "Pesa Purchase");
WHEREAS, CCACA, Sepa Technologies Ltd., Co.,
a Georgia limited liability company ("Sepa"), and John A.
Servizio ("Servizio") have entered into a Stock Purchase
Agreement dated May 26, 1995 for the purchase by CCACA of
5,000,000 shares of Common Stock and the acquisition by CCACA
of a right of first refusal with respect to 9,000,000 shares
of Common Stock from Sepa (the "Sepa Purchase");
WHEREAS, simultaneous with the execution of
this Agreement, CCACA, CCACB, Pesa, Sepa, Servizio and the
New Investor Group have entered into an assignment and
assumption agreement (the "Assignment and Assumption
Agreement") with respect to the Pesa Purchase and the Sepa
Purchase pursuant to which CCACA and CCACB have assigned
certain of their rights to acquire shares of Common Stock on
the terms set forth therein;
WHEREAS, the parties hereto wish to enter
into certain agreements with respect to the Common Stock to
be Beneficially Owned by them upon consummation of the Pesa
Purchase, Sepa Purchase and Assignment and Assumption
Agreement;
NOW, THEREFORE, in consideration of the
mutual covenants and agreements herein contained, the parties
hereto agree as follows:
1. Definitions. As used in this
Agreement, terms defined in this Agreement, including the
heading and recitals, shall have their respective assigned
meanings, and the following capitalized terms shall have the
meanings ascribed to them below:
"Affiliate" shall mean (i) in the case of
any individual stockholder, any Associate of such individual
or (ii) in the case of any other Person, any Person that
directly or indirectly through one or more intermediaries,
controls, is controlled by or under common control with the
Person in question. As used herein, "control" shall mean the
Beneficial Ownership of at least a majority of the equity
interests of a Person entitling the owner of such interests
to direct the policies and operations of such Person.
"Associate" of any Person shall mean any
spouse (including a former spouse under a legally terminated
marriage) or descendant (whether natural, step or adopted) of
such Person (a "Relative") or any trust formed exclusively
for the benefit of such Person or one or more Relative of
such Person.
"Beneficially Own" or "Beneficial Ownership"
with respect to any securities shall mean having "beneficial
ownership" of such securities (as determined pursuant to
Rule 13d3 under the Exchange Act of 1934, as amended),
including pursuant to any agreement, arrangement or
understanding, whether or not in writing.
"Board of Directors" shall mean the Board of
Directors of the Company.
"Party" shall mean a Stockholder party to
this Agreement, including a Permitted Transferee under this
Agreement. References herein to any particular Party shall
include such Party and such Party's Permitted Transferees.
"Permitted Transferee" shall mean any Person
to whom a Party transfers shares of Common Stock in
accordance with the terms of this Agreement, and includes any
Person to whom a Permitted Transferee (as thus defined) (or
a Permitted Transferee of a Permitted Transferee) so further
transfers shares and who is required to, and does, become
bound by the terms of this Agreement.
"Person" shall mean any individual,
corporation, partnership, trust or other entity of any nature
whatsoever.
"Securities" shall mean equity securities of
the Company and options, warrants and other rights to acquire
equity securities of the Company, and shall include, without
limitation, the Common Stock.
"Stockholder" shall mean any Person owning
beneficially and/or of record any of the shares of the Common
Stock.
"Transfer" shall mean any transfer, sale,
assignment, exchange, mortgage, pledge, hypothecation or
other disposition of any Common Stock or any interest
therein.
2. Board of Directors. (a) Each of the
Parties agrees to vote or cause to be voted all the shares of
Common Stock of which such Party is the Beneficial Owner so
that the Board of Directors shall be constituted to have nine
members. Until such date as CCAC ceases to Beneficially Own
8% of the issued and outstanding shares of Common Stock, CCAC
shall have the right to nominate three members of the Board
of Directors (the "CCAC Directors") and each of the Parties
agrees to vote or cause to be voted all the shares of Common
Stock of which such Party is the Beneficial Owner in favor of
such nominees. Until such date as the New Investor Group
ceases to Beneficially Own 8% of the issued and outstanding
shares of Common Stock, (i) CDA, CDAO, WPGII and WPGIII
(collectively, the "WP Group") shall have the right to
nominate one member to the Board of Directors, (ii) WIT and
Lion (collectively, "WIT/Lion") shall have the right to
nominate one member to the Board of Directors and (iii) the
WP Group and WIT/Lion shall together have the right to
nominate one member to the Board of Directors (collectively,
the "New Investor Group Directors") and each of the Parties
agrees to vote or cause to be voted all the shares of Common
Stock of which such Party is the Beneficial Owner in favor of
such nominees. With respect to the three members of the
Board of Directors other than the CCAC Directors and the New
Investor Group Directors (the "Independent Directors"),
neither CCAC nor the New Investor Group shall nominate or
vote the shares of Common Stock of which such Party is the
Beneficial Owner in favor of the election of any Independent
Director unless CCAC and the WP Group and WIT/Lion each
agrees with such nomination or each votes the shares of
Common Stock of which such Party is the Beneficial Owner in
favor of such election and CCAC and the WP Group and WIT/Lion
each shall cause (to the extent permitted under applicable
laws and to the extent within such Party's control) the
members of the Board of Directors designated by it not to
nominate or vote in favor of the election of any Independent
Director unless the members of the Board of Directors
designated by the other group agrees with such nomination or
votes in favor of such election.
(b) It is CCAC's and the New Investor
Group's understanding that as of the date of this Agreement,
three members of the Board of Directors will have resigned
from the Board of Directors and the four remaining members of
the Board of Directors will increase the size of the Board of
Directors to nine and vote for the election of two of the
CCAC Directors and all of the New Investor Group Directors.
CCAC and the New Investor Group each hereby agrees it shall
promptly take whatever action necessary to effect the intent
of this Agreement, including, without limitation, making a
written request for the Secretary of the Company to call a
special meeting of the Stockholders to, if necessary,
(i) elect the CCAC Directors and the New Investor Group
Directors, (ii) remove any members of the Board of Directors
who are not agreed to by CCAC and the New Investor Group and
(iii) elect Independent Directors. At such meeting of
Stockholders, CCAC and the New Investor Group each hereby
agree to vote all of the shares of Common Stock owned or held
of record by it to effect the intent of the immediately
preceding sentence and the intent of this Agreement.
(c) If either CCAC or the New Investor
Group shall notify the other of its desire to remove any
director of the Company previously designated by it, each of
the other Parties, subject to applicable law and Section 2(e)
below, shall vote or cause to be voted all of the shares of
Common Stock of which such Party is the Beneficial Owner so
as to remove such director.
(d) If any director previously designated
by CCAC or the New Investor Group ceases to serve on the
Board of Directors (whether by reason of death, resignation,
removal or otherwise), the party that designated such
director shall be entitled to designate a successor director
to fill the vacancy created thereby and each of CCAC and the
New Investor Group shall, subject to applicable law, cause
the directors designated by it to vote for such person
designated to fill such vacancy.
(e) Each of the Parties agrees to
indemnify and hold harmless the Company and each other Party
from and against any and all losses, claims, damages or
liabilities (or actions in respect thereof) to which the
Company and the other Parties, as the case may be, may be
subject, insofar as such losses, claims, damages or
liabilities arise out of or are based upon the removal, in
accordance with the specific provisions of this Section 2, of
any director previously designated by it pursuant to this
Section 2, and shall reimburse the Company and the other
Parties, as the case may be, for any legal or other expenses
reasonably incurred by the Company and the other Parties, as
the case may be, in connection with investigating or
defending any such loss, claim, damage, liability or action.
(f) The Parties hereto hereby agree that
any individual designated as a director of the Company may be
removed for Cause. For purposes of this Section 2.2(f),
"Cause" shall mean the conviction of, or plea of nolo
contendere to, a felony by such party, or commitment of
fraud, embezzlement or theft by such party against the
Company, in each case as reasonably determined by a majority
vote of the Board of Directors. No such removal of an
individual designated pursuant to this Section 2 shall affect
any of the Parties' rights to designate a different
individual pursuant to this Section 2.
3. Transfers. (a) Notwithstanding any
other provisions of this Agreement, each Party shall be
entitled from time to time, without the consent of any other
Parties or compliance with any of the procedures specified in
Section 5 hereof, to Transfer any or all of the shares of
Common Stock owned by it to any of its Affiliates, any other
Party or any limited partner of any of the general
partnerships that is a Party or an Affiliate of a Party, so
long as such Permitted Transferee agrees in form and
substance satisfactory to the Parties, to be, and becomes,
bound by the terms of this Agreement.
(b) Each Party agrees that it and its
Affiliates will not Transfer 10% or more of the outstanding
shares of Common Stock in one or a series of transactions
unless (i) such Transfer is in accordance with Section 3(a)
hereof, (ii) such Transfer is in compliance with the
procedures specified in Section 5 hereof and such Permitted
Transferee agrees in form and substance satisfactory to the
Parties, to be, and becomes, bound by the terms of this
Agreement or (iii) such Transfer is in connection with any
offering of Common Stock (x) pursuant to a registration
statement filed with the Securities and Exchange Commission,
(y) pursuant to the volume and manner of sale limitations set
forth in Rule 144 under the Securities Act of 1933, as
amended (the "Act") or (z) pursuant to Regulation S of the
Act.
4. Effect of Void Transfers. In the
event of any purported Transfer of any shares of Common Stock
in violation of the provisions of this Agreement, such
purported Transfer shall be void and of no effect.
5. Tag-Along Rights. (a) Subject to
Section 5(b) hereof, no later than 20 days prior to the
proposed date of consummation of a Transfer of any shares of
Common Stock, the transferring Party shall provide each other
Party with written notice of the proposed Transfer, including
the Person to whom it wishes to Transfer shares, the number
of shares proposed to be Transferred, and the price and other
material terms and conditions of the proposed Transfer. Each
such other Party shall then have the right by notice given no
later than 10 days following receipt of the 20day notice
referred to above, and the transferring Party shall afford
each such other Party the opportunity, to include in such
Transfer a pro rata portion of the shares of Common Stock
held by such other Party on the same terms and conditions.
The term "pro rata portion" as used above shall be determined
by multiplying the number of shares of Common Stock owned by
a Party at such time by a fraction, the numerator of which is
equal to the number of shares of Common Stock owned by such
Party at such time and the denominator of which is the number
of shares of Common Stock owned by all Parties at such time
having elected to participate in such Transfer. If
necessary, the party initially proposing the Transfer shall
reduce the number of its shares to be included in the
Transfer to permit such pro rata participation. In the event
any Party elects to sell less than its full pro rata portion,
the difference shall be allocated among each of the other
Parties having elected to participate in such Transfer and
each such other Party shall be entitled to include in such
Transfer its pro rata portion (calculated excluding such
difference from the denominator of the fraction referred to
above) of such difference until no such difference remains.
(b) The Tag-Along Rights of the Parties
shall not pertain or apply to (a) any offering of Common
Stock by the Parties or their transferees (i) pursuant to a
registration statement filed with the Securities and Exchange
Commission or any similar authority outside the United
States, or (ii) pursuant to the volume and manner of sale
limitations set forth in Rule 144 under the Securities Act of
1933, as amended, as in effect on the date thereof,
(b) pledges of Common Stock which create a mere security
interest pursuant to a bona fide loan transaction, or to the
acquisition (by virtue of the exercise of the security
interest created by such pledge in accordance with its terms)
or subsequent sale of such Common Stock by the pledgee,
(c) (i) any transaction for which neither the Transferring
Party nor its Affiliates or Associates receives any
consideration, directly or indirectly or (ii) any Transfers
permitted by the terms of Section 3 hereof.
6. Termination. This Agreement shall
terminate, and thereby become null and void, on the earlier
to occur of (i) the tenth anniversary of the date hereof and
(ii) the date that either CCAC or the New Investor Group
cease to Beneficially Own at least five percent of the issued
and outstanding shares of Common Stock, except with respect
to Section 2(e), which shall survive indefinitely.
7. Representations and Warranties. Each
Party hereto represents and warrants as follows:
(a) The Person executing and delivering
this Agreement on behalf of such Party is duly authorized to
execute and deliver this Agreement on behalf of such Party.
This Agreement has been duly executed and delivered by such
Party and constitutes the legal, valid and binding obligation
of such Party, enforceable against such Party in accordance
with the terms hereof.
(b) The execution and delivery of this
Agreement by such Party does not, and the performance by it
of its obligations under this Agreement will not, violate,
conflict with or constitute a breach of, or a default under,
any material agreement or instrument to which such Party is
a party or which is binding on such Party or the assets of
such Party, and will not result in the creation of any lien
on, or security interest in, any of the assets of such Party.
(c) It has good and marketable title to
any shares of Common Stock held by it immediately prior to
the date of this Agreement, free and clear of any claims,
liens, encumbrances or security interests whatsoever.
8. Miscellaneous.
(a) Other Stockholders' Agreements. None
of the Parties hereto nor any Permitted Transferees thereof
have entered into or shall enter into any stockholder
agreement or arrangement of any kind with any Person with
respect to voting of the Common Stock or that is otherwise
inconsistent with the provisions of this Agreement.
(b) Amendments. This Agreement may be
amended only by a written instrument signed by Parties that
represent a majority of the issued and outstanding shares
then Beneficially Owned by each of CCAC and the New Investor
Group.
(c) Successors, Assigns and Transferees.
This Agreement shall be binding upon and shall inure to the
benefit of the Parties hereto and their Permitted
Transferees, each of which Permitted Transferees shall agree
in writing to be bound by the terms of this Agreement.
(d) Integration. This Agreement and the
documents referred to herein or delivered pursuant hereto
contain the entire understanding of the parties with respect
to its subject matter. There are no restrictions,
agreements, promises, representations, warranties, covenants
or undertakings with respect to the subject matter hereof
other than those expressly set forth herein or therein. This
Agreement supersedes all prior agreements and understandings
between the Parties with respect to its subject matter.
(e) Notices. All notices and other
communications provided for hereunder shall be in writing and
shall be sent by certified or registered mail, postage
prepaid and return receipt requested, or by overnight
courier, telecopier or hand delivery:
If to CCAC:
Michael Wellesley-Wesley
c/o Camhy Karlinsky & Stein LLP
1740 Broadway
New York, New York 10019
Attn: Daniel I. De Wolf, Esq.
Telephone: (212) 977-6600
Telecopier: (212) 977-8389
with a copy to:
Sheldon D. Camhy, Esq.
Camhy Karlinsky & Stein LLP
1740 Broadway
New York, New York 10019
Telephone: (212) 977-6600
Telecopier: (212) 977-8389
If to the New Investor Group:
WPG Corporate Development Associates IV, L.P.
c/o Weiss, Peck & Greer Private Equity Group
One New York Plaza
New York, NY 10004-1950 Attn:
Mr. Wesley W. Lang, Jr.
Telephone: (212) 908-9500
Telecopier: (212) 908-0112
WPG Corporate Development
Associates IV (Overseas), L.P.
c/o Weiss, Peck & Greer Private Equity Group
One New York Plaza
New York, NY 10004-1950
Attn: Mr. Wesley W. Lang, Jr.
Telephone: (212) 908-9500
Telecopier: (212) 908-0112
WPG Enterprise Fund II, L.P.
555 California Street
Suite 4760
San Francisco, CA 94104
Attn: Mr. Gill Cogan
Telephone: (415) 622-6864
Telecopier: (415) 989-5105
Weiss, Peck & Greer Venture Associates III, L.P.
555 California Street
Suite 4760
San Francisco, CA 94104
Attn: Mr. Gill Cogan
Telephone: (415) 622-6864
Telecopier: (415) 989-5105
Westpool Investment Trust plc
Carlton House
33 Robert Adam Street
London W1M5AH
Attn: Mr. Robert A. Rayne
Telephone: 011-44-171-935-3555
Telecopier: 011-44-171-935-3737
Lion Investments Limited
Carlton House
33 Robert Adam Street
London W1M5AH
Attn: Mr. Robert A. Rayne
Telephone: 011-44-171-935-3555
Telecopier: 011-44-171-935-3737
Mr. Charles M. Diker
Weiss, Peck & Greer, L.L.C.
One New York Plaza
New York, NY 10004-1950
Telephone: (212) 908-9500
Telecopier: (212) 908-0176
with a copy to:
Dennis J. Friedman, Esq.
Chadbourne & Parke
30 Rockefeller Plaza
New York, New York 10112-0127
Telephone: (212) 508-5100
Telecopier: (212) 541-5369
or to such other address as any of the parties may designate.
All such notices and communications shall be deemed to have
been given or made (i) when delivered by hand, (ii) one
business day after being sent by overnight courier, or
(iii) when telecopied, receipt acknowledged.
(f) Descriptive Headings. The headings in
this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning of the terms
contained herein.
(g) Severability. In the event that any
one or more of the provisions , paragraphs, words, clauses,
phrases or sentences contained herein, or the application
thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity,
legality, and enforceability of any such provision,
paragraph, word, clause, phrase, or sentence in every other
respect and of the remaining provisions, paragraphs, words,
clauses, phrases, or sentences hereof shall not be in any way
impaired, it being intended that all rights, powers, and
privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
(h) Governing Law. This Agreement shall
be governed by and construed and enforced in accordance with
the laws of the State of New York applicable to contracts
made and to be performed therein. The Parties to this hereby
agree to submit to the non-exclusive jurisdiction of the
courts of the State of New York in any action or proceeding
arising out of or relating to this Agreement.
(i) Injunctive Relief. The Parties
acknowledge and agree that a violation of any of the terms of
this Agreement will cause the Parties irreparable injury for
which adequate remedy at law is not available. Accordingly,
it is agreed that each Party shall be entitled to an
injunction, restraining order or other equitable relief to
prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any
court of competent jurisdiction in the United States or any
state thereof, in addition to any other remedy to which they
may be entitled at law or equity.
(j) Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall
be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
<PAGE>
IN WITNESS WHEREOF, each of the undersigned
has executed this Agreement or caused this Agreement to be
executed on its behalf as of the date first written above.
CC ACQUISITION COMPANY A, L.L.C.
By
: _________________________
Name:
Title:
CC ACQUISITION COMPANY B, L.L.C.
By
: _________________________
Name:
Title:
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV, L.P.
By
: WPG PRIVATE EQUITY PARTNERS,
L.P., its general partner
By
: _________________________
Name:
Title: General Partner
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV (OVERSEAS),
L.P.
By
: WPG CDA IV (OVERSEAS),
LTD., its general partner
By:_________________________
Name:
Title: Director
WPG ENTERPRISE FUND II, L.P.
By: WPG VENTURE PARTNERS
III,
L.P., its general partner
By:
_________________________
Name:
Title: General Partner
WEISS, PECK & GREER VENTURE
ASSOCIATES III, L.P.
By: WPG VENTURE PARTNERS
III,
L.P., its general partner
By:
_________________________
Name:
Title: General Partner
WESTPOOL INVESTMENT TRUST PLC
By
: _________________________
Name:
Title:
LION INVESTMENTS LIMITED
By
: _________________________
Name:
Title:
CHARLES M. DIKER
