Exhibit D
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of July 25, 1995, by and
among CC ACQUISITION COMPANY A, L.L.C., a Delaware limited liability company
("CCACA"), CC ACQUISITION COMPANY B, L.L.C., a Delaware limited liability
company ("CCACB" and together with CCACA, "CCAC"), WPG CORPORATE DEVELOPMENT
ASSOCIATES IV, L.P., a Delaware limited partnership ("CDA"), WPG CORPORATE
DEVELOPMENT ASSOCIATES IV (OVERSEAS), L.P., a Cayman Islands exempted limited
partnership ("CDAO"), WPG ENTERPRISE FUND II, L.P., a Delaware limited
partnership ("WPGII"), Xxxxx, Xxxx & Xxxxx 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
XXXXXXX X. XXXXX (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 Xxxx X. Servizio ("Servizio") have entered into
a Stock Purchase Agreement dated May 26, 1995 for the purchase by CCACA of
5,000,000 shares of Common Stock and the acquisition by CCACA of a right of
first refusal with respect to 9,000,000 shares of Common Stock from Sepa (the
"Sepa Purchase");
WHEREAS, simultaneous with the execution of this Agreement,
CCACA, CCACB, Pesa, Sepa, Servizio and the New Investor Group have entered into
an assignment and assumption agreement (the "Assignment and Assumption
Agreement") with respect to the Pesa Purchase and the Sepa Purchase pursuant to
which CCACA and CCACB have assigned certain of their rights to acquire shares of
Common Stock on the terms set forth therein;
WHEREAS, the parties hereto wish to enter into certain
agreements with respect to the Common Stock to be Beneficially Owned by them
upon consummation of the Pesa Purchase, Sepa Purchase and Assignment and
Assumption Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, terms defined in
this Agreement, including the heading and recitals, shall have their respective
assigned meanings, and the following capitalized terms shall have the meanings
ascribed to them below:
"Affiliate" shall mean (i) in the case of any individual
stockholder, any Associate of such individual or (ii) in the case of any other
Person, any Person that directly or indirectly through one or more
intermediaries, controls, is controlled by or under common control with the
Person in question. As used herein, "control" shall mean the Beneficial
Ownership of at least a majority of the equity interests of a Person entitling
the owner of such interests to direct the policies and operations of such
Person.
"Associate" of any Person shall mean any spouse (including a
former spouse under a legally terminated marriage) or descendant (whether
natural, step or adopted) of such Person (a "Relative") or any trust formed
exclusively for the benefit of such Person or one or more Relative of such
Person.
"Beneficially Own" or "Beneficial Ownership" with respect to
any securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act of 1934, as amended),
including pursuant to any agreement, arrangement or understanding, whether or
not in writing.
"Board of Directors" shall mean the Board of Directors of the
Company.
"Party" shall mean a Stockholder party to this Agreement,
including a Permitted Transferee under this Agreement. References herein to any
particular Party shall include such Party and such Party's Permitted
Transferees.
"Permitted Transferee" shall mean any Person to whom a Party
transfers shares of Common Stock in accordance with the terms of this Agreement,
and includes any Person to whom a Permitted Transferee (as thus defined) (or a
Permitted Transferee of a Permitted Transferee) so further transfers shares and
who is required to, and does, become bound by the terms of this Agreement.
"Person" shall mean any individual, corporation, partnership,
trust or other entity of any nature whatsoever.
"Securities" shall mean equity securities of the Company and
options, warrants and other rights to acquire equity securities of the Company,
and shall include, without limitation, the Common Stock.
"Stockholder" shall mean any Person owning beneficially and/or
of record any of the shares of the Common Stock.
"Transfer" shall mean any transfer, sale, assignment,
exchange, mortgage, pledge, hypothecation or other disposition of any Common
Stock or any interest therein.
2. Board of Directors. (a) Each of the Parties agrees to vote
or cause to be voted all the shares of Common Stock of which such Party is the
Beneficial Owner so that the Board of Directors shall be constituted to have
nine members. Until such date as CCAC ceases to Beneficially Own 8% of the
issued and outstanding shares of Common Stock, CCAC shall have the right to
nominate three members of the Board of Directors (the "CCAC Directors") and each
of the Parties agrees to vote or cause to be voted all the shares of Common
Stock of which such Party is the Beneficial Owner in favor of such nominees.
Until such date as the New Investor Group ceases to Beneficially Own 8% of the
issued and outstanding shares of Common Stock, (i) CDA, CDAO, WPGII and WPGIII
(collectively, the "WP Group") shall have the right to nominate one member to
the Board of Directors, (ii) WIT and Lion (collectively, "WIT/Lion") shall have
the right to nominate one member to the Board of Directors and (iii) the WP
Group and WIT/Lion shall together have the right to nominate one member to the
Board of Directors (collectively, the "New Investor Group Directors") and each
of the Parties agrees to vote or cause to be voted all the shares of Common
Stock of which such Party is the Beneficial Owner in favor of such nominees.
With respect to the three members of the Board of Directors other than the CCAC
Directors and the New Investor Group Directors (the "Independent Directors"),
neither CCAC nor the New Investor Group shall nominate or vote the shares of
Common Stock of which such Party is the Beneficial Owner in favor of the
election of any Independent Director unless CCAC and the WP Group and WIT/Lion
each agrees with such nomination or each votes the shares of Common Stock of
which such Party is the Beneficial Owner in favor of such election and CCAC and
the WP Group and WIT/Lion each shall cause (to the extent permitted under
applicable laws and to the extent within such Party's control) the members of
the Board of Directors designated by it not to nominate or vote in favor of the
election of any Independent Director unless the members of the Board of
Directors designated by the other group agrees with such nomination or votes in
favor of such election.
(b) It is CCAC's and the New Investor Group's understanding
that as of the date of this Agreement, three members of the Board of Directors
will have resigned from the Board of Directors and the four remaining members of
the Board of Directors will increase the size of the Board of Directors to nine
and vote for the election of two of the CCAC Directors and all of the New
Investor Group Directors. CCAC and the New Investor Group each hereby agrees it
shall promptly take whatever action necessary to effect the intent of this
Agreement, including, without limitation, making a written request for the
Secretary of the Company to call a special meeting of the Stockholders to, if
necessary, (i) elect the CCAC Directors and the New Investor Group Directors,
(ii) remove any members of the Board of Directors who are not agreed to by CCAC
and the New Investor Group and (iii) elect Independent Directors. At such
meeting of Stockholders, CCAC and the New Investor Group each hereby agree to
vote all of the shares of Common Stock owned or held of record by it to effect
the intent of the immediately preceding sentence and the intent of this
Agreement.
(c) If either CCAC or the New Investor Group shall notify the
other of its desire to remove any director of the Company previously designated
by it, each of the other Parties, subject to applicable law and Section 2(e)
below, shall vote or cause to be voted all of the shares of Common Stock of
which such Party is the Beneficial Owner so as to remove such director.
(d) If any director previously designated by CCAC or the New
Investor Group ceases to serve on the Board of Directors (whether by reason of
death, resignation, removal or otherwise), the party that designated such
director shall be entitled to designate a successor director to fill the vacancy
created thereby and each of CCAC and the New Investor Group shall, subject to
applicable law, cause the directors designated by it to vote for such person
designated to fill such vacancy.
(e) Each of the Parties agrees to indemnify and hold harmless
the Company and each other Party from and against any and all losses, claims,
damages or liabilities (or actions in respect thereof) to which the Company and
the other Parties, as the case may be, may be subject, insofar as such losses,
claims, damages or liabilities arise out of or are based upon the removal, in
accordance with the specific provisions of this Section 2, of any director
previously designated by it pursuant to this Section 2, and shall reimburse the
Company and the other Parties, as the case may be, for any legal or other
expenses reasonably incurred by the Company and the other Parties, as the case
may be, in connection with investigating or defending any such loss, claim,
damage, liability or action.
(f) The Parties hereto hereby agree that any individual
designated as a director of the Company may be removed for Cause. For purposes
of this Section 2.2(f), "Cause" shall mean the conviction of, or plea of nolo
contendere to, a felony by such party, or commitment of fraud, embezzlement or
theft by such party against the Company, in each case as reasonably determined
by a majority vote of the Board of Directors. No such removal of an individual
designated pursuant to this Section 2 shall affect any of the Parties' rights to
designate a different individual pursuant to this Section 2.
3. Transfers. (a) Notwithstanding any other provisions of this
Agreement, each Party shall be entitled from time to time, without the consent
of any other Parties or compliance with any of the procedures specified in
Section 5 hereof, to Transfer any or all of the shares of Common Stock owned by
it to any of its Affiliates, any other Party or any limited partner of any of
the general partnerships that is a Party or an Affiliate of a Party, so long as
such Permitted Transferee agrees in form and substance satisfactory to the
Parties, to be, and becomes, bound by the terms of this Agreement.
(b) Each Party agrees that it and its Affiliates will not
Transfer 10% or more of the outstanding shares of Common Stock in one or a
series of transactions unless (i) such Transfer is in accordance with Section
3(a) hereof, (ii) such Transfer is in compliance with the procedures specified
in Section 5 hereof and such Permitted Transferee agrees in form and substance
satisfactory to the Parties, to be, and becomes, bound by the terms of this
Agreement or (iii) such Transfer is in connection with any offering of Common
Stock (x) pursuant to a registration statement filed with the Securities and
Exchange Commission, (y) pursuant to the volume and manner of sale limitations
set forth in Rule 144 under the Securities Act of 1933, as amended (the "Act")
or (z) pursuant to Regulation S of the Act.
4. Effect of Void Transfers. In the event of any purported
Transfer of any shares of Common Stock in violation of the provisions of this
Agreement, such purported Transfer shall be void and of no effect.
5. Tag-Along Rights. (a) Subject to Section 5(b) hereof, no
later than 20 days prior to the proposed date of consummation of a Transfer of
any shares of Common Stock, the transferring Party shall provide each other
Party with written notice of the proposed Transfer, including the Person to whom
it wishes to Transfer shares, the number of shares proposed to be Transferred,
and the price and other material terms and conditions of the proposed Transfer.
Each such other Party shall then have the right by notice given no later than 10
days following receipt of the 20-day notice referred to above, and the
transferring Party shall afford each such other Party the opportunity, to
include in such Transfer a pro rata portion of the shares of Common Stock held
by such other Party on the same terms and conditions. The term "pro rata
portion" as used above shall be determined by multiplying the number of shares
of Common Stock owned by a Party at such time by a fraction, the numerator of
which is equal to the number of shares of Common Stock owned by such Party at
such time and the denominator of which is the number of shares of Common Stock
owned by all Parties at such time having elected to participate in such
Transfer. If necessary, the party initially proposing the Transfer shall reduce
the number of its shares to be included in the Transfer to permit such pro rata
participation. In the event any Party elects to sell less than its full pro rata
portion, the difference shall be allocated among each of the other Parties
having elected to participate in such Transfer and each such other Party shall
be entitled to include in such Transfer its pro rata portion (calculated
excluding such difference from the denominator of the fraction referred to
above) of such difference until no such difference remains.
(b) The Tag-Along Rights of the Parties shall not pertain or
apply to (a) any offering of Common Stock by the Parties or their transferees
(i) pursuant to a registration statement filed with the Securities and Exchange
Commission or any similar authority outside the United States, or (ii) pursuant
to the volume and manner of sale limitations set forth in Rule 144 under the
Securities Act of 1933, as amended, as in effect on the date thereof, (b)
pledges of Common Stock which create a mere security interest pursuant to a bona
fide loan transaction, or to the acquisition (by virtue of the exercise of the
security interest created by such pledge in accordance with its terms) or
subsequent sale of such Common Stock by the pledgee, (c) (i) any transaction for
which neither the Transferring Party nor its Affiliates or Associates receives
any consideration, directly or indirectly or (ii) any Transfers permitted by the
terms of Section 3 hereof.
6. Termination. This Agreement shall terminate, and thereby
become null and void, on the earlier to occur of (i) the tenth anniversary of
the date hereof and (ii) the date that either CCAC or the New Investor Group
cease to Beneficially Own at least five percent of the issued and outstanding
shares of Common Stock, except with respect to Section 2(e), which shall survive
indefinitely.
7. Representations and Warranties. Each Party hereto
represents and warrants as follows:
(a) The Person executing and delivering this Agreement on
behalf of such Party is duly authorized to execute and deliver this Agreement on
behalf of such Party. This Agreement has been duly executed and delivered by
such Party and constitutes the legal, valid and binding obligation of such
Party, enforceable against such Party in accordance with the terms hereof.
(b) The execution and delivery of this Agreement by such Party
does not, and the performance by it of its obligations under this Agreement will
not, violate, conflict with or constitute a breach of, or a default under, any
material agreement or instrument to which such Party is a party or which is
binding on such Party or the assets of such Party, and will not result in the
creation of any lien on, or security interest in, any of the assets of such
Party.
(c) It has good and marketable title to any shares of Common
Stock held by it immediately prior to the date of this Agreement, free and clear
of any claims, liens, encumbrances or security interests whatsoever.
8. Miscellaneous.
(a) Other Stockholders' Agreements. None of the Parties hereto
nor any Permitted Transferees thereof have entered into or shall enter into any
stockholder agreement or arrangement of any kind with any Person with respect to
voting of the Common Stock or that is otherwise inconsistent with the provisions
of this Agreement.
(b) Amendments. This Agreement may be amended only by a
written instrument signed by Parties that represent a majority of the issued and
outstanding shares then Beneficially Owned by each of CCAC and the New Investor
Group.
(c) Successors, Assigns and Transferees. This Agreement shall
be binding upon and shall inure to the benefit of the Parties hereto and their
Permitted Transferees, each of which Permitted Transferees shall agree in
writing to be bound by the terms of this Agreement.
(d) Integration. This Agreement and the documents referred to
herein or delivered pursuant hereto contain the entire understanding of the
parties with respect to its subject matter. There are no restrictions,
agreements, promises, representations, warranties, covenants or undertakings
with respect to the subject matter hereof other than those expressly set forth
herein or therein. This Agreement supersedes all prior agreements and
understandings between the Parties with respect to its subject matter.
(e) Notices. All notices and other communications provided for
hereunder shall be in writing and shall be sent by certified or registered mail,
postage prepaid and return receipt requested, or by overnight courier,
telecopier or hand delivery:
If to CCAC:
Xxxxxxx Wellesley-Xxxxxx
c/o Camhy Karlinsky & Xxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xx Xxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxx, Esq.
Camhy Karlinsky & Xxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the New Investor Group:
WPG Corporate Development Associates IV, L.P.
c/x Xxxxx, Xxxx & Xxxxx Private Equity Group
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xx. Xxxxxx X. Xxxx, Xx.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
WPG Corporate Development
Associates IV (Overseas), L.P.
c/x Xxxxx, Xxxx & Xxxxx Private Equity Group
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xx. Xxxxxx X. Xxxx, Xx.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
WPG Enterprise Fund II, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Xxxxx, Xxxx & Xxxxx Venture Associates III, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Westpool Investment Trust plc
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0X0XX
Attn: Xx. Xxxxxx X. Rayne
Telephone: 000-00-000-000-0000
Telecopier: 011-44-171-935-3737
Lion Investments Limited
Carlton House
00 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0X0XX
Attn: Xx. Xxxxxx X. Rayne
Telephone: 000-00-000-000-0000
Telecopier: 011-44-171-935-3737
Xx. Xxxxxxx X. Xxxxx
Xxxxx, Xxxx & Xxxxx, L.L.C.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxxx & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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.
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
CC ACQUISITION COMPANY A, L.L.C.
By: s/M.I. Wellesley-Xxxxxx
Name: M.I. Wellesley-Xxxxxx
Title: Vice President
CC ACQUISITION COMPANY B, L.L.C.
By: s/M.I. Wellesley-Xxxxxx
Name: M.I. Wellesley-Xxxxxx
Title: Vice President
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV, L.P.
By: WPG PRIVATE EQUITY PARTNERS,
L.P., its general partner
By: s/Xxxxxx X. Xxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxx
Title: Managing Partner
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV (OVERSEAS), L.P.
By: WPG CDA IV (OVERSEAS),
LTD., its general partner
By: s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Director
WPG ENTERPRISE FUND II, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By: s/Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: General Partner
XXXXX, XXXX & XXXXX VENTURE
ASSOCIATES III, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By: s/Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: General Partner
WESTPOOL INVESTMENT TRUST PLC
By: s/ Xxxxxx X. Xxxx, Xx.
Name: Xxxxxx X. Xxxx, Xx.
Title: Attorney-in-Fact
LION INVESTMENTS LIMITED
By: s/Xxxxxx X. Xxxx, Xx.
Name: Xxxxxx X. Xxxx, Xx.
Title: Attorney-in-Fact
XXXXXXX X. XXXXX
s/Xxxxxxx X. Xxxxx
