Exhibit C
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement") is
being made this 25 day of July, 1995, by and among CC Acquisition Company A,
L.L.C., a Delaware limited liability company, its successors and assigns
("Acquisition Company A"), CC Acquisition Company B, L.L.C., a Delaware limited
liability company, its successors and assigns ("Acquisition Company B"), and the
persons set forth on Exhibit A-1 hereto (including each of such person's
successors and assigns), each of whom are hereinafter referred to individually
as an "Assignee" and collectively as the "Assignees." The Assignees listed on
Part I of Exhibit A-1 hereto are hereinafter referred to individually as a "WP
Group Assignee" and collectively as the "WP Group Assignees". Acquisition
Company A and Acquisition Company B are hereinafter referred to collectively as
the "Assignors."
W I T N E S S E T H :
WHEREAS, the Assignors are parties to a Stock Purchase
Agreement, dated as of May 26, 1995 (the "Pesa Agreement"), by and among the
Assignors and Pesa, Inc., a Delaware corporation ("Pesa"), pursuant to which
Acquisition Company A has, among other things, agreed to purchase 30,000,000
shares (the "Initial Pesa Shares") of the common stock, par value $.01 per share
(the "Common Stock"), of Chyron Corporation, a New York corporation (the
"Company"), and Acquisition Company B has agreed, among other things, to
purchase 29,414,732 shares (the "Installment Pesa Shares") of the Common Stock
of the Company upon the terms and as set forth in the Pesa Agreement; and
WHEREAS, Acquisition Company A is a party to a Stock Purchase
Agreement, dated as of May 26, 1995 (the "Sepa Agreement"), by and among
Acquisition Company A, Sepa Technologies Ltd., Co., a Georgia limited liability
company ("Sepa"), and ▇▇▇▇ ▇. Servizio ("Servizio"), pursuant to which
Acquisition Company A has, among other things, (i) agreed to purchase 5,000,000
shares (the "Sepa Shares") of the Common Stock of the Company and (ii) a right
of first refusal with respect to 8,700,000 shares of the Common Stock of
the Company, upon the terms and as set forth in the Sepa Agreement; and
WHEREAS, Acquisition Company A is a party to an agreement,
dated as of July 25, 1995 (the "Leubert Agreement"), between Acquisition Company
A and ▇▇▇▇▇▇ O.P. Leubert ("Leubert"), pursuant to which Acquisition Company A
has a right of first refusal with respect to 300,000 shares of the Common Stock
of the Company, upon the terms and as set forth in the Leubert Agreement.
WHEREAS, the Assignees desire to acquire certain of the
Assignors rights and assume certain of the Assignors' obligations under the Sepa
Agreement and the Pesa Agreement and the Assignors desire to transfer to the
Assignees certain of the Assignors' rights and to have the Assignees assume
certain of the Assignors' obligations under the Pesa Agreement and the Sepa
Agreement, subject to the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises,
representations, warranties, and covenants contained herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
I. DEFINITIONS.
Capitalized terms used but not otherwise defined herein shall have the
meaning ascribed thereto in the Pesa Agreement or the Sepa Agreement as the
Leubert Agreement, as the context so indicates.
II. TRANSFER AND ASSIGNMENT.
Section 2.1 Terms of Purchase and Transfer of Assignment.
(a) Acquisition Company A hereby grants, conveys and assigns to the
Assignees, in the amount set forth opposite each Assignee's name in Column 3 of
Exhibit A-2 hereto, its right under the Pesa Agreement to acquire 20 million
shares of the Common Stock of the Company (which shares are referred to in the
Pesa Agreement as the Second Tranche of Shares and the Third Tranche of Shares)
and each such Assignee hereby agrees to assume his or its obligation to pay as
consideration for such shares the amount set forth opposite such Assignee's name
in Column 4 of Exhibit A-2 hereto, which aggregates to Ten Million Six Hundred
Thousand Dollars ($10,600,000) U.S., in accordance with the terms of this
Agreement and the provisions, to the extent applicable, set forth in Section 1.1
of the Pesa Agreement. Acquisition Company A shall cause Pesa to instruct the
Escrow Agent to deliver to each of the Assignees stock certificates representing
the number of shares of Common Stock set forth opposite such Assignee's name in
Column 3 of Exhibit A-2 hereto, duly endorsed or accompanied with stock powers
duly endorsed for transfer to the Assignees. Such 20 million shares of Common
Stock shall be delivered free and clear of all liens, security interests,
pledges, charges, claims of creditors, encumbrances, stockholders' agreements,
voting trusts, and adverse claims of any kind or nature whatsoever. The
Assignees shall each deliver the dollar amount set forth opposite each
Assignee's name in Column 4 of Exhibit A-2 hereto, to Pesa by certified check or
wire transfer in immediately available funds to an account in the United States
designated by Pesa. Assignors shall, in accordance with the Escrow Agreement
dated as of May 26, 1995 by and among Pesa, Acquisition Company A and the First
Union National Bank of North Carolina, as Escrow Agent (the "Escrow Agreement"),
provide the Escrow Agent with an affidavit signed by both the Pesa
Representative and the CCACA Representative (each as defined in the Escrow
Agreement) advising the Escrow Agent to distribute such 20 million shares of
Common Stock to the Assignees in the amounts set forth in Column 3 of Exhibit
A-2 hereto.
(b) Acquisition Company A hereby grants, conveys and assigns to the
Assignees, in the amount set forth opposite each Assignee's name in Column 5 of
Exhibit A-2 hereto, its right to acquire 5 million shares of the Common Stock of
the Company and each such Assignee agrees to assume his or its obligation to pay
as consideration for such shares the amount set forth opposite such Assignee's
name in Column 6 of Exhibit A-2 hereto, which aggregates to Two Million Six
Hundred Thousand Dollars ($2,600,000) U.S., in accordance with the terms of this
Agreement and provisions, to the extent applicable, set forth in Section 1.1 of
the Sepa Agreement. Acquisition Company A shall cause Pesa to deliver to the
Assignees stock certificates representing such 5 million shares of Common Stock
in the amounts set forth opposite such Assignee's name in Column 5 of Exhibit A
hereto, duly endorsed or accompanied with stock powers duly endorsed for
transfer to the Assignees. Such 5 million shares of Common Stock shall be
delivered free and clear of all liens, security interests, pledges, charges,
claims of creditors, encumbrances, stockholders' agreements, voting trusts, and
adverse claims of any kind or nature whatsoever. The Assignees shall each
deliver the dollar amount set forth opposite each Assignee's name in Column 6 of
Exhibit A-2 hereto to Sepa by certified check or wire transfer in immediately
available funds to an account in the United States designated by Sepa.
(c) Acquisition Company A hereby grants, conveys and assigns to the
WP Group Assignees the right to participate in Acquisition Company A's exercise
of its right of first refusal contained in Section 1.1(b) of the Sepa Agreement
and in the Leubert Agreement as provided in this Section 2.1(c). Each time Sepa
or Leubert delivers a Sale Notice, Acquisition Company A shall immediately (and
in any event no later than two days after receipt thereof) deliver a copy of
such Sale Notice to WPG Corporate Development Associates IV, L.P., as
representative of the WP Group Assignees (the "Representative"). Acquisition
Company A shall notify the Representative in writing within five (5) days of the
receipt of such Sale Notice whether it intends to exercise its right of first
refusal with respect to the Offered Shares and the Representative shall
immediately (and in any event no later than two days after receipt thereof)
deliver to the Assignees a copy of such notice delivered by Acquisition Company
A to the Representative together with a copy of the Sale Notice previously
delivered to the Representative. If Acquisition Company A shall desire to
exercise its right of first refusal, each of the WP Group Assignees shall have
the irrevocable and exclusive option, but not the obligation, to purchase from
Sepa or Leubert, as the case may be sixty percent (60%) of the Offered Shares at
the price and upon the terms and conditions equal to those offered by the
prospective purchaser in the proportions set forth opposite such WP Group
Assignee's name in Column 10 of Exhibit A-2 hereto. If Acquisition Company A
shall not desire to exercise its right of first refusal, the WP Group Assignees
shall have the irrevocable and exclusive option, but not the obligation, to
purchase all of the Offered Shares at the price and upon the terms and
conditions equal to those offered by the prospective purchaser in the
proportions set forth opposite such WP Group Assignee's name in Column 10 of
Exhibit A-2 hereto. Within ten (10) days of receipt of the notices from the
Representative each WP Group Assignee shall notify the Representative in writing
whether it intends to exercise its right of first refusal with respect to its
portion of the Offered Shares (including, if applicable, that portion of the
Offered Shares that Acquisition Company A has stated it will not purchase). To
the extent any of the WP Group Assignees do not notify the Representative or
states that such WP Group Assignee does not desire to exercise its right of
first refusal (the "Non-Participating Assignees"), each of the other WP Group
Assignees shall have the irrevocable and exclusive option, but not the
obligation, to purchase the shares that could have been purchased by the
Non-Participating Assignees in an amount equal to the product of (i) the Offered
Shares such Assignee has a right to purchase divided by (ii) all of the Offered
Shares, multiplied by the shares that the Non-Participating Assignees could have
purchased. The Representative shall notify Acquisition Company A and Pesa of the
number of shares of Common Stock each participating WP Group Assignee will
purchase no later than twenty-five (25) days after the Representative's receipt
of the Sale Notice. The Representative will coordinate with the WP Group
Assignees regarding each WP Group Assignee's rights with respect to the right of
first refusal.
(d) Acquisition Company B hereby grants, conveys and assigns to the
Assignees, its right to acquire the number of shares of Common Stock set forth
opposite such Assignee's name in Column 7 of Exhibit A-2 hereto, which aggregate
to 17,648,839 shares of the Common Stock of the Company (representing sixty
percent (60%) of 29,414,732 shares of the Common Stock of the Company) and each
such Assignee hereby agrees to assume his or its obligation to pay as
consideration for such shares, the amount set forth opposite each Assignee's
name in Column 8 of Exhibit A-2 hereto, which aggregates to $8,471,442.83
(representing sixty percent (60%) of $14,119,071.36), in accordance with the
terms and provisions set forth in Section 1.1(c) of the Pesa Agreement.
(i) At the Closing, the Assignors shall cause Pesa to deliver to each
Assignee stock certificates representing the number of Installment
Pesa Shares set forth opposite each Assignee's name in Column 7 of
Exhibit A-2 hereto, duly endorsed or accompanied by stock powers
duly endorsed for transfer to each such Assignee. Such Installment
Pesa Shares shall be delivered to the Assignees free and clear of
all liens, security interests, pledges, charges, claims of
creditors, encumbrances, stockholders' agreements, voting trusts,
and adverse claims, of any kind or nature whatsoever.
(ii) Each of the Assignees shall make payment for its portion of the
Installment Pesa Shares in the amount set forth opposite each
Assignee's name in Column 8 of Exhibit A-2 hereto, by certified
check or wire transfer, in immediately available funds, to an
account in the United States designated by Pesa, in accordance
with the schedule set forth in Section 1.1(c)(ii) of the Pesa
Agreement.
(iii) As security for the payment obligation for the portion of the
Installment Pesa Shares purchased by each Assignee, each Assignee
shall pledge its Installment Pesa Shares to Pesa and deliver such
Installment Pesa Shares to the Escrow Agent, duly endorsed in
blank or accompanied with stock powers duly endorsed in blank by
such persons to be held as collateral; such Installment Pesa
Shares shall be delivered to the Escrow Agent by each Assignee
free and clear of all liens, security interests, pledges, charges,
claims of creditors, encumbrances, stockholders' agreements,
voting trusts, and adverse claims of any kind or nature
whatsoever, except for any claims or liens resulting from the
terms and provisions of the Pesa Agreement and the shareholders
agreement, dated as of July 25, 1995 among certain of the
Assignees and the Assignors (the "Sharehold-ers Agreement").
(iv) If Acquisition Company B fails to make its pro rata portion of any
monthly payment when due as provided in Section 1.1(c) of the Pesa
Agreement or any of the Assignees fails to make its monthly
payment when due as provided in section 1.1(c) of the Pesa
Agreement, the WP Group Assignees shall have the right to cure
such payment default within twenty (20) days after receipt of
written notice thereof from Pesa. Upon receipt from Pesa by the
Representative of a written notice of a payment default by
Acquisition Company B or any of the Assignees "The Cure Notice")
the Representative shall immediately (and in any event no later
than two days after the receipt thereof) deliver a copy of such
notice to the WP Group Assignees. Within ten (10) days of the date
the Representative receives the Cure Notice, each WP Group
Assignee shall notify the Representative in writing whether it
intends to participate, with respect to its portion in the cure of
any monthly payment that Acquisition Company B, or any of the non
WP Group Assignees has failed to make and to receive shares of
Common Stock out of escrow in respect of the amount so paid. A WP
Group Assignee who has failed to make its monthly installment
shall not be eligible to participate in a cure. Each participating
WP Group Assignee shall have the right to cure in an amount equal
to the product of (i) the monthly installment most recently paid
by such WP Group Assignee dived by (ii) the total installment
payment due for such month (excluding amounts paid or owed by
Acquisition Company B and any of the non WP Group Assignees),
multiplied by the dollar amount to be cured. The Representative
shall notify Acquisition Company B and Pesa of the dollar amount
each participating WP Group Assignee will pay in respect of a cure
no later than twenty (20) days after the Representative's receipt
of the Cure Notice. Acquisition Company B shall have the right to
cure any payment default not cured by the WP Group Assignees. The
Representative will coordinate with the WP Group Assignees
regarding such Assignee's right to cure. In either such case the
party which cures such payment default shall be entitled to
receive out of escrow the portion of such Installment Pesa Shares
covered by such payment free and clear of all liens, security
interests, stockholders' agreement, voting trusts and adverse
claims of any kind or notice whatsoever, except for the
Shareholders Agreement.
Section 2.2 Additional Consideration
(a) As additional consideration for the assignments described in
Section 2.1 hereto the Assignees shall pay the amount set forth in Column 9 of
Exhibit A-2 hereto, which amount aggregates to One Million ($1,000,000) U.S. in
immediately available funds in accordance with the instructions delivered to the
Assignees by the Assignors.
Section 2.3 Closing.
The Closing (the "Closing") of the transactions contemplated by
this Agreement shall take place at the offices of Camhy ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP at
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time on or
before July 26, 1995 or such other time or date as the parties may mutually
agree (the "Closing Date"), but in no event later than September 30, 1995.
III. REPRESENTATIONS AND WARRANTIES OF SELLER.
The Assignors each severally represent and warrant to the Assignees as
follows:
Section 3.1 Litigation and Claims.
There is no litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation pending, (to each Assignor's
knowledge) threatened, or (to each Assignor's knowledge) in prospect therefor,
that would prohibit the transactions contemplated pursuant to this Agreement.
Section 3.2 Organization.
Each of the Assignors is a limited liability company duly organized,
validly existing, and in good standing under the laws of Delaware.
Section 3.3 Authority to Transfer.
Each of the Assignors has all requisite power and authority to
execute, deliver, and perform this Agreement and the instruments and documents
contemplated hereby. All necessary proceedings of each Assignor have been duly
taken to authorize the execution, delivery, and performance of this Agreement
and the instruments and documents contemplated hereby. This Agreement has been
duly authorized, executed, and delivered by each Assignor, is the legal, valid,
and binding obligation of each Assignor, and is enforceable as to each Assignor
in accordance with its terms.
Section 3.4 Restrictions.
Neither of the Assignors is under any contractual restriction or
obligation that is inconsistent with the execution and performance of this
Agreement. No consent, authorization, approval, order, license, certificate, or
permit of or from, or declaration or filing with, any foreign, United States,
state, local, or other governmental authority or any court or other tribunal is
required by either of the Assignors or any of its affiliated or controlling
entities for the execution, delivery, or performance of this Agreement by the
Assignors.
IV. REPRESENTATIONS AND WARRANTIES OF THE ASSIGNEE.
The Assignees individually represent and warrant to the Assignors as
follows:
Section 4.1 Organization.
Each of the Assignees which is not a natural person is an entity duly
organized, validly existing, and in good standing under the laws of its
jurisdiction of organization.
Section 4.2 Authority to Buy.
Each of the Assignees has the requisite power and authority to
execute, deliver, and perform this Agreement and the instruments and documents
contemplated hereby. All necessary proceedings of each Assignee have been duly
taken to authorize the execution, delivery, and performance of this Agreement
and the instruments and documents contemplated hereby. This Agreement has been
duly authorized, executed, and delivered by each Assignee, is the legal, valid,
and binding obligation of each Assignee, and is enforceable as to each Assignee
in accordance with its terms.
Section 4.3 Litigation and Claims.
There is no litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation pending, (to each Assignee's
knowledge) threatened, or (to each Assignee's knowledge) in prospect therefor,
that would prohibit the transactions contemplated pursuant to this Agreement.
Section 4.4 Restrictions.
None of the Assignees is under any contractual restriction or
obligation that is materially inconsistent with the execution and performance of
this Agreement. No consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any foreign,
United States, state, local, or other governmental authority or any court or
other tribunal is required by any of the Assignees or any affiliate or
controlling entities thereof for the execution, delivery, or performance of this
Agreement by any of the Assignees.
Section 4.5 Purchases for Investment Purposes.
Each Assignee is acquiring the Initial Pesa Shares, the Installment
Pesa Shares, and the Sepa Shares (collectively, the "Shares") for its own
account for investment purposes only and with no intention of offering,
distributing, or reselling the Shares or any part thereof in any transaction
that would be in violation of any Federal or State securities laws, without
prejudice, however, to any right of a Assignee to sell or otherwise dispose of
all or any part of the Shares under a registration under the Securities Act of
1933, as amended (the "Securities Act"), and other applicable State securities
laws or under an exemption from such registration available under the Securities
Act and other applicable State securities laws. Each Assignee has not taken or
caused to be taken, and shall not take or cause to be taken, any action that
would cause the Assignees, the Assignors, the Company or any of their respective
affiliates to be deemed an underwriter, as defined in Section 2(11) of the
Securities Act.
Section 4.6 Sophisticated Investor.
(a) Each Assignee is a sophisticated investor as such term is
contemplated under the Securities Act of 1933, as amended. Each Assignee
recognizes that the Company emerged from bankruptcy on December 27, 1991 and
that the purchase of the Shares involves significant risks. Each Assignee also
recognizes that none of the proceeds from the purchase of the Shares shall
accrue to the benefit of the Company, but shall instead accrue to the benefit of
Pesa and Sepa, as the case may be.
(b) No Assignee is relying upon Assignor, Pesa or Sepa, as the case
may be, the Company or any of their respective Affiliates, accountants,
attorneys or financial advisors for advice with respect to whether the
Assignee's acquisition of the Shares constitutes a legal investment for the
Assignees or with respect to the tax or other legal consequences of such
purchase.
Section 4.7 Restricted Securities.
(a) Each Assignee understands and agrees that (i) the sale of the
Shares has not been registered under the Securities Act or any State securities
laws; and (ii) each Assignee shall not offer or sell the Shares except pursuant
to registration under the Securities Act or an available exemption from
registration under the Securities Act.
(b) Each Assignee agrees to the imprinting, so long as appropriate, of
any certificates representing the Shares with a conspicuous legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR UNDER ANY STATE
SECURITIES LAWS. THESE SECURITIES SHALL NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF EITHER (1) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR (2)
AN OPINION OF COUNSEL, AS MAY BE REASON- ABLY SATISFACTORY TO THE
COMPANY, THAT THE PROPOSED SALE OR TRANSFER IS IN ACCORDANCE WITH AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
V. MISCELLANEOUS.
Section 5.1 Brokerage Fees.
If any person shall assert a claim to a fee, commission, or other
compensation on account of alleged employment as a broker or finder, in
connection with or as a result of any of the transactions contemplated by this
Agreement, the party purportedly engaging such broker or finder shall indemnify
and hold harmless the other parties against any and all Claims (as defined in
Section 8.1 of the Pesa Agreement), as and when incurred, arising out of, based
upon, or in connection with such Claim by such person, except to the extent that
it is determined in any suit, action, or proceeding that such other parties had
engaged such broker or finder.
Section 5.2 Further Actions.
At any time and from time to time, each party agrees, as its expense,
to take such actions and to execute and deliver such documents or instruments as
may be reasonably necessary to effectuate the purposes of this Agreement.
Section 5.3 Submission to Jurisdiction.
Each of the parties hereto irrevocably submits to the jurisdiction of
the courts of the State of New York and of any Federal court located in the
State of New York in connection with any action or proceeding arising out of or
relating to this Agreement or of any document or instrument delivered pursuant
to, in connection with, or simultaneously with this Agreement.
Section 5.4 Merger; Modification.
This Agreement, the Shareholders Agreement and the exhibits attached
hereto set forth the entire understanding of the parties with respect to the
subject matter hereof, supersede all existing agreements concerning such subject
matter, and may be modified only by a written instrument duly executed by each
party to be charged. None of the parties hereto or their affiliate has entered
into any other agreement concerning the Common Stock which is the subject matter
hereof with any other party hereto or any third party other than with respect to
any agreement specifically referred to herein.
Section 5.5 Notices.
Any notice received by either Assignor with the Sepa Agreement or the
Pesa Agreement shall be promptly given to each Assignee. Any notice or other
communication required or permitted to be given hereunder shall be in writing
and shall be mailed by certified mail, return receipt requested (or by the most
nearly comparable method if mailed from or to a location outside of the United
States) or by Federal Express, U.S. Express Mail, or similar overnight delivery
or courier service or delivered (in person or by telecopy, or similar
telecommunications equipment) against receipt to the party to whom it is to be
given at the address of such party set forth below (or to such other address as
the party shall have furnished in writing in accordance with the provisions of
this Section 5.5):
Assignors:
CC Acquisition Company A
CC Acquisition Company B
c/o Camhy Karlinksy & ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ Wellesley-▇▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
with a copy (which copy shall not constitute notice) to:
Camhy Karlinsky & ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Assignees:
WP GROUP ASSIGNEES
WPG Corporate Development Associates IV, L.P.
c/▇ ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ Private Equity Group
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Att: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
WPG Corporate Development
Associates IV (Overseas), L.P.
c/▇ ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ Private Equity Group
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
WPG Enterprise Fund II, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ Venture Associates III, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Westpool Investment Trust plc
Carlton House
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. Rayne
Telephone: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Telecopier: 011-44-171-935-3737
Lion Investment Limited
Carlton House
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. Rayne
Telephone: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Telecopier: 011-44-171-935-3737
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, L.L.C.
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which copy shall not constitute notice) to:
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Any notice or other communication given by certified mail (or by such
comparable method) shall be deemed given at the time of certification thereof
(or comparable act) except for a notice changing a party's address which will be
deemed given at the time of receipt thereof. Any notice given by other means
permitted by this Section 5.5 shall be deemed given at the time of receipt
thereof.
Section 5.6 Waiver.
Any waiver by any party of a breach of any terms of this Agreement
shall not operate as or be construed to be a waiver of any other breach of that
term or of any breach of any other term of this Agreement. The failure of a
party to insist upon strict adherence to any term of this Agreement on one or
more occasions will not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement. Any waiver must be in writing.
Section 5.7 Binding Effect.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the Purchasers, and their respective successors and assigns and
the Assignors and its respective successors and assigns, and shall inure to the
benefit of each Indemnitee and its successors and assigns (if not a natural
person) and his assigns, heirs, and personal representatives (if a natural
person).
Section 5.8 No Third-Party Beneficiaries.
This Agreement does not create, and shall not be construed as
creating, any rights enforceable by any person not a party to this Agreement
(except as provided in 5.7).
Section 5.9 Separability.
If any provision of this Agreement is invalid, illegal, or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
Section 5.10 Headings.
The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
Section 5.11 Counterparts; Governing Law.
This Agreement may be executed in any number of counterparts (and by
facsimile), each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. It shall be governed by, and
construed in accordance with, the laws of the State of New York, without giving
effect to the rules governing the conflicts of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first written above.
CC ACQUISITION COMPANY A, L.L.C.
By:s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Vice President
CC ACQUISITION COMPANY B, L.L.C.
By:s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Vice President
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV, L.P.
By: WPG PRIVATE EQUITY PARTNERS,
L.P., its general partner
By:s/▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: General Partner
WPG CORPORATE DEVELOPMENT
ASSOCIATES IV (OVERSEAS), L.P.
By: WPG CDA IV (OVERSEAS), LTD.,
its general partner
By:s/▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
WPG ENTERPRISE FUND II, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By:s/▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: General Partner
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ VENTURE
ASSOCIATES III, L.P.
By: WPG VENTURE PARTNERS III,
L.P., its general partner
By:s/▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: General Partner
WESTPOOL INVESTMENT TRUST PLC
By:s/▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
LION INVESTMENTS LIMITED
By:s/▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Attorney-in-Fact
s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
MINT HOUSE NOMINEES LIMITED
By:s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Attorney-in-Fact
PINE STREET VENTURES, L.L.C.
By:s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Attorney-in-Fact
s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Attorney-in-Fact
▇▇▇▇▇ ▇▇▇▇▇▇
s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Attorney-in-Fact
▇▇▇▇ ▇. ANNEX
s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Attorney-in-Fact
▇▇▇▇ ▇▇▇▇▇▇▇▇
Z FOUR PARTNERS L.L.C.
By: s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
Title: Attorney-in-Fact
s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Attorney-in-Fact
A.J.L. BEARE
EXHIBIT A-1
PART I
WPG Corporate 10,416,822 7,353,793
Development Associates
IV, L.P.
WPG Corporate 2,511,862 1,773,258
Development Associates
IV (Overseas), ▇.▇.
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ 2,152,195 1,519,350
Venture Associates III,
L.P.
WPG Enterprise Fund II 2,588,322 1,827,235
L.P.
Westpool Investment 4,094,080 2,890,231
Trust plc
Lion Investments Limited 1,939,306 1,369,060
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 861,912 608,470
PART II
Pine Street Ventures, 36,001 25,414
L.L.C.
▇▇▇▇▇ ▇▇▇▇▇▇ 50,000 35,298
▇▇▇▇ ▇▇▇▇▇▇▇▇ 175,000 123,542
Mint House Nominees, 43,000 30,356
Ltd.
Z Four Partners L.L.C. 87,500 61,771
A.J.L. Beare 26,000 18,355
▇▇▇▇ ▇. Annex 18,000 12,707
CC Acquisition Company 11,765,892
B, L.L.C.
Exhibit A-2
1 2 3
Total Shares # of Shares
Purchased at Closing Purchased from Pesa
Name Percent at Closing
PART I
WPG CDA IV, L.P. 10,416,822 41.67% 8,333,458
WPG CDA IV (Overseas), Ltd. 2,511,862 10.05% 2,009,490
WPG Venture Associates III, L.P. 2,152,195 8.61% 1,721,756
WPG Enterprise Fund II, L.P. 2,588,322 10.35% 2,070,857
Westpool Investment Trust plc 4,094,080 16.38% 3,275,264
Lion Investments Limited 1,939,306 7.76% 1,561,445
▇▇▇▇▇▇▇ ▇▇▇▇▇ 861,912 3.45% 689,530
PART II
Pine Street Ventures, L.L.C. 36,000 0.15% 28,800
▇▇▇▇▇ ▇▇▇▇▇▇ 50,000 0.20% 40,000
Mint House Nominess, Ltd. 43,000 0.17% 34,400
Ilam Kaufthal 175,000 0.70% 140,000
▇▇▇▇ ▇. Annex 18,000 0.07% 14,400
Z Four Partners, L.C.C. 87,500 0.35% 70,000
A.J.L. Beare 26,000 0.10% 20,800
---------- ------ ----------
Total: 25,000,000 100.00% 20,000,000
4 5 6
$ of Shares # of Shares $ of Shares
Purchased from Pesa Purchased from Sepa Purchased from Sepa
Name at Closing at Closing at Closing
PART I
WPG CDA IV, L.P. 4,416,732.63 2,083,364 1,083,349.51
WPG CDA IV (Overseas), Ltd. 1,065,029.66 502,372 261,233.69
WPG Venture Associates III, L.P. 912,530.78 430,439 223,828.30
WPG Enterprise Fund II, L.P. 1,097,448.40 517,865 269,185.46
Westpool Investment Trust plc 1,735,890.07 818,816 425,784.36
Lion Investments Limited 822,265.72 387,861 201,687.82
▇▇▇▇▇▇▇ ▇▇▇▇▇ 365,450.74 172,382 89,638.86
PART II
Pine Street Ventures, L.L.C. 15,264.00 7,200 3,816.00
▇▇▇▇▇ ▇▇▇▇▇▇ 21,200.00 10,000 5,300.00
Mint House Nominess, Ltd. 18,232.00 8,600 4,558.00
Ilam Kaufthal 74,200.00 35,000 18,550.00
▇▇▇▇ ▇. Annex 7,632.00 3,600 1,908.00
Z Four Partners, L.C.C. 37,100.00 17,500 9,275.00
A.J.L. Beare 11,024.00 5,200 2,756.00
------------- --------- ------------
Total: 10,600,000.00 5,000,000 2,600,000.00
7 8 9 10
# of "B" Shares $ of "B" Shares WP
Purchased Purchased Additional Group
Name from Pesa from Pesa Consideration Percent
PART I
WPG CDA IV, L.P. 7,353,793 3,529,820.56 416,672.89 42.41
WPG CDA IV (Overseas), Ltd. 1,773,258 851,163.95 100,474.50 10.23
WPG Venture Associates III, L.P. 1,519,350 729,287.95 86,087.81 8.76
WPG Enterprise Fund II, L.P. 1,827,235 877,072.77 103,532.87 10.54
Westpool Investment Trust plc 2,890,231 1,387,310.71 163,763.21 16.67
Lion Investments Limited 1,369,060 657,148.78 77,572.24 7.89
▇▇▇▇▇▇▇ ▇▇▇▇▇ 608,470 292,065.57 34,476.48 3.51
PART II
Pine Street Ventures, L.L.C. 25,414 12,198.72 1,440.00
▇▇▇▇▇ ▇▇▇▇▇▇ 35,298 16,943.04 2,000.00
Mint House Nominess, Ltd. 30,356 14,570.88 1,720.00
Ilam Kaufthal 123,542 59,300.16 7,000.00
▇▇▇▇ ▇. Annex 12,707 6,099.36 720.00
Z Four Partners, L.C.C. 61,774 29,650.08 3,900.00
A.J.L. Beare 18,355 8,810.40 1,040.00
---------- ------------ ----------
Total: 17,648,839 8,471,442.82 1,000,000.00
