NAME OF SUBSCRIBER:
To: CHYRON CORPORATION
5 HUB DRIVE
MELVILLE, NEW YORK 11747
CHYRON CORPORATION
SUBSCRIPTION AGREEMENT AND INVESTMENT REPRESENTATION
SECTION 1.
1.1 Subscription. The undersigned, intending to be legally bound, hereby
subscribes for and agrees to purchase the amount of 8% Subordinated
Convertible Debentures (each a "Debenture") issued by Chyron Corporation,
a New York corporation (the "Company"), indicated on page 10 hereof. Each
Debenture shall be convertible at any time, at the option of the holder
thereof, into shares of common stock, par value $0.01 per share, of the
Company (the "Common Stock") in accordance with the terms set forth in the
Form of Debenture, a copy of which is attached hereto as Exhibit A.
1.2 Purchase of Debentures. The undersigned understands and acknowledges
that the purchase price to be remitted to the Company in exchange for the
Debentures, if any, shall be one-thousand United Stated Dollars ($1,000)
per Debenture. Payment for the Debenture(s) shall be made by certified
check or wire transfer in accordance with the instructions of the Company,
together with an executed copy of this Agreement and any other required
documents.
SECTION 2.
2.1 Acceptance or Rejection.
(a) The undersigned understands and agrees that the Company reserves the
right to reject this subscription for the Debenture(s) in whole or part in
any order, if, in its reasonable judgment, it deems such action in the best
interests of the Company, at any time prior to the applicable Closing (as
defined herein), notwithstanding prior receipt by the undersigned of notice
of acceptance of the undersigned's subscription.
(b) The undersigned understands and agrees that subscriptions may be revoked
provided that written notice of revocation is sent by certified or
registered mail, return receipt requested, and is received by the Company
at least two business days prior to the applicable Closing.
(c) In the event of rejection of this subscription, or in the event the sale
of the Debenture(s) subscribed for by the undersigned is not consummated by
the Company for any reason (in which event this Subscription Agreement shall
be deemed to be rejected), this Subscription Agreement and any other
agreement entered into between the undersigned and the Company relating to
this subscription shall thereafter have no force or effect and the Company
shall promptly return or cause to be returned to the undersigned the
purchase price remitted to the Company by the undersigned, without interest
thereon or deduction therefrom.
2.2 Closing; Closing Date.
The initial closing shall take place at the offices of the Company or such
other place as determined by the Company, on such date as is set by the
Company. The Company's acceptance of the undersigned's subscription shall
be evidenced by the Company's execution of this Agreement and execution of
the Debenture(s) subscribed for. Subsequent closings, if any, will be held
at such times, and in such places, as are determined by the Company (each
a "Closing"). At the Closing of the purchase and sale of the Debenture(s)
subscribed to by the undersigned, the Company shall prepare for delivery to
the undersigned the certificate(s) for the Debenture(s) to be issued and
sold to the undersigned, duly registered in the undersigned's name against
payment in full by the undersigned of the aggregate principal amount of the
Debenture(s).
SECTION 3
3.1 Investor Representations and Warranties.
The undersigned hereby acknowledges, represents and warrants to, and agrees
with, the Company and its affiliates as follows:
(a) The undersigned is acquiring the Debenture(s) for his own account as
principal, not as a nominee or agent, for investment purposes only, and not
with a view to, or for, resale, distribution or fractionalization thereof
in whole or in part. Further, the undersigned does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or
grant participations to such person or to any third person, with respect to
the Debenture(s), or the Common Stock into which same may convert, for which
the undersigned is subscribing.
(b) The undersigned has full power and authority to enter into this
Agreement, the execution and delivery of this Agreement has been duly
authorized, if applicable, and this Agreement constitutes a valid and
legally binding obligation of the undersigned.
(c) The undersigned acknowledges his understanding that the offering and
sale of the Debentures is intended to be exempt from registration under the
Securities Act of 1933, as amended (the "Securities Act") by virtue of
Section 4(2) of the Securities Act and the provisions of Regulation D
promulgated thereunder ("Regulation D"). In furtherance thereof, the
undersigned represents and warrants to and agrees with the Company and its
affiliates as follows:
(i) The undersigned realizes that the basis for the exemption may not be
present if, notwithstanding such representations, the undersigned has in
mind merely acquiring the Debenture(s) for a fixed or determinable period
in the future, or for a market rise, or for sale if the market does not
rise. The undersigned does not have any such intention;
(ii) The undersigned has the financial ability to bear the economic risk of
his investment, has adequate means for providing for his current needs and
personal contingencies and has no need for liquidity with respect to his
investment in the Company;
(iii) (insert name of Purchaser Representative: if
none, so state) has acted as the undersigned's Purchaser Representative for
purposes of the private placement exemption under the Securities Act. If
the undersigned has appointed a Purchaser Representative (which term is used
herein with the same meaning as given in Rule 501(h) of Regulation D), the
undersigned has been advised by his Purchaser Representative as to the
merits and risks of an investment in the Company in general and the
suitability of an investment in the Debenture(s) for the undersigned in
particular; and
(iv) The undersigned (together with his Purchaser Representative(s), if any)
has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of the prospective investment
in the Debenture(s). If other than an individual, the undersigned also
represents it has not been organized for the purpose of acquiring the
Debenture(s).
(d) The information in the Investor Questionnaire completed and executed by
the undersigned (the "Investor Questionnaire") is accurate and true in all
respects and the undersigned is an "accredited investor," as that term is
defined in Rule 501 of Regulation D.
(e) The undersigned and his Purchaser Representative(s), if any:
(i) Have been furnished with copies of the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1997 and all Quarterly Reports
on Form 10-Q filed thereafter to date, including all exhibits thereto, and
any documents which may have been made available upon request for a
reasonable period of time prior to the date hereof (collectively, the
"Documents"). The undersigned or his Purchaser Representative(s) have
carefully read the Documents and have relied solely (except as indicated in
subsections (ii) and (iii) below) on the information contained in the
Documents (including all exhibits thereto);
(ii) Have been provided an opportunity for a reasonable period of time prior
to the date hereof to obtain additional information concerning the offering
of the Debentures, the Company and all other information to the extent the
Company possesses such information or can acquire it without unreasonable
effort or expense;
(iii) Have been given the opportunity for a reasonable period of time prior
to the date hereof to ask questions of, and receive answers from, the
Company or its representatives concerning the terms and conditions of the
offering of the Debentures and other matters pertaining to this investment,
and have been given the opportunity for a reasonable period of time prior
to the date hereof to obtain such additional information necessary to verify
the accuracy of the information contained in the Documents or that which was
otherwise provided in order for him to evaluate the merits and risks of
purchase of the Debenture(s) to the extent the Company possesses such
information or can acquire it without unreasonable effort or expense;
(iv) Have not been furnished with any oral representation or oral
information in connection with the offering of the Debentures which is not
contained herein or in the Documents; and
(v) Have determined that the Debenture(s) are a suitable investment for the
undersigned and that at this time the undersigned could bear a complete loss
of such investment.
(f) The undersigned is not relying on the Company, or its affiliates with
respect to economic considerations involved in this investment. The
undersigned has relied on the advice of, or has consulted with only those
persons, if any, named as Purchaser Representative(s) herein and in the
Investor Questionnaire. Each Purchaser Representative is capable of
evaluating the merits and risks of an investment in the Debentures and each
Purchaser Representative has disclosed to the undersigned in writing (a copy
of which is annexed to this Agreement) the specific details of any and all
past, present or future relationships, actual or contemplated, between
himself and the Company or any affiliate or subsidiary thereof.
(g) The undersigned represents, warrants and agrees that he will not sell
or otherwise transfer the Debenture(s), or the Common Stock into which the
Debenture(s) may convert, without registration under the Securities Act or
an exemption therefrom and fully understands and agrees that he must bear
the economic risk of his purchase because, among other reasons, the
Debenture(s), and the Common Stock into which the Debenture(s) may convert
have not been registered under the Securities Act or under the securities
laws of any state and, therefore, cannot be resold, pledged, assigned or
otherwise disposed of unless they are subsequently registered under the
Securities Act and under the applicable securities laws of such states or
an exemption from such registration is available. In particular, the
undersigned is aware that the Debenture(s) and Common Stock into which the
Debenture(s) may convert are "restricted securities," as such term is
defined in Rule 144 promulgated under the Securities Act ("Rule 144"), and
they may not be sold pursuant to Rule 144 unless all of the conditions of
Rule 144 are met. The undersigned also understands that, except as
otherwise provided herein, the Company is under no obligation to register
the Debenture(s), or the Common Stock into which same may convert, on his
behalf or to assist him in complying with any exemption from registration
under the Securities Act or applicable state securities laws. The
undersigned further understands that sales or transfers of the Debenture(s),
or the Common Stock into which same may convert, are further restricted by
state securities laws and the provisions of this Agreement.
(h) No representations or warranties have been made to the undersigned by
the Company, or any officer, employee, agent, affiliate or subsidiary of the
Company, other than the representations of the Company contained herein, and
in subscribing for the Debentures the undersigned is not relying upon any
representations other than those contained herein.
(i) Any information which the undersigned has heretofore furnished to the
Company with respect to his financial position and business experience is
correct and complete as of the date of this Agreement and if there should
be any material change in such information he will immediately furnish such
revised or corrected information to the Company.
(j) The undersigned understands and agrees that the certificates for the
Debenture(s), or the Common Stock into which same may convert, shall bear,
substantially, the following legend until (i) such securities shall have
been registered under the Securities Act and effectively been disposed of
in accordance with a registration statement that has been declared
effective; or (ii) in the opinion of counsel for the Company such securities
be may sold without registration under the Securities Act as well as any
applicable "Blue Sky" or state securities laws:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND ARE SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY AS SET FORTH IN THIS CERTIFICATE. THE
SECURITIES REPRESENTED HEREBY MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT OR AN OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO COUNSEL FOR THE
COMPANY, TO THE EFFECT THAT THE PROPOSED SALE, TRANSFER, OR DISPOSITION MAY
BE EFFECTUATED WITHOUT REGISTRATION UNDER THE ACT."
(k) The undersigned understands that an investment in the Debentures is a
speculative investment which involves a high degree of risk and the
potential loss of his entire investment.
(l) The undersigned's overall commitment to investments which are not
readily marketable is not disproportionate to the undersigned's net worth,
and an investment in the Debentures will not cause such overall commitment
to become excessive.
(m) The undersigned: (A) is not (i) a director, officer, or substantial
security holder of the Company (a "Related Party"), (ii) a subsidiary,
affiliate or other closely-related person of a Related Person, or (iii) any
company or entity in which a Related Party has a has a substantial direct
or indirect interest; or (B) represents, warrants and agrees that he shall
not subscribe for or purchase Debentures, which upon conversion as provided
in the Debenture(s), shall represent more than one percent (1%) of the
shares of Common Stock outstanding prior to the sale of the Debentures.
(n) The foregoing representations, warranties and agreements shall survive
the Closing.
SECTION 4.
4.1 Registration Rights.
(a) The Company represents and warrants that it will use its best efforts
to file a registration statement with the United States Securities and
Exchange Commission (the "SEC"), relating to the shares of Common Stock
underlying the Debentures (the "Registrable Securities"), within 120 days
after the final Closing. In addition, the Company further represents and
warrants that it will (i) use its best efforts to have such registration
statement declared effective by the SEC in a timely manner, and (ii)
maintain the effectiveness of the registration statement for a period of at
lest two years from the initial effective date. The Company shall not be
obligated to effect more than one registration under this Section 4.1(a).
Assuming such registration statement is declared effective by the SEC,
holders shall have no further registration right pursuant to this Section
4.1(a).
(b) The Company has agreed that the all expenses incurred with a
registration statement pursuant to this Section 4 (exclusive of underwriting
discounts and marketing expenses), including without limitation all federal
and "blue sky" registration and qualification fees, printer's and accounting
fees, shall be borne by the Company.
SECTION 5.
5.1 Indemnification of the Company.
(a) The undersigned agrees to indemnify and hold harmless the Company, its
officers and directors, employees, agents and affiliates and each other
person, if any, who controls any thereof, against any loss, liability,
claim, damage and expense whatsoever (including, but not limited to, any and
all expenses whatsoever reasonably incurred in investigating, preparing or
defending against any litigation commenced or threatened or any claim
whatsoever) arising out of or based upon any false representation or
warranty or breach or failure by the undersigned to comply with any covenant
or agreement made by the undersigned herein or in any other document
furnished by the undersigned to any of the foregoing in connection with this
transaction.
(b) In addition to the indemnity in Section 5.1(a) above, the holder(s)
of the Registrable Securities to be sold pursuant to a registration
statement, and their successors and assigns, shall severally, and not
jointly, indemnify the Company, its officers, directors and agents and each
person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act, against all
loss, claim, damage or expense or liability (including all expenses
reasonably incurred in investigating, preparing or defending against any
claim whatsoever) to which they may become subject under the Securities Act,
the Exchange Act or otherwise, arising from written information furnished
by or on behalf of such Holders, or their successors or assigns, for
specific inclusion in such registration statement; provided, however, that
each holder shall be liable under this Section 5.1(b) only up to and
including the principal amount of the Debenture(s) purchased by such holder.
5.2 Indemnification of Holders of Registrable Securities. In connection
with any registration statement filed pursuant to Section 4.1(a) hereof, the
Company agrees to indemnify, to the fullest extent permitted by law, each
holder of Registrable Securities, its officers, directors and agents and
each person who controls such holder of Registrable Securities against all
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of material fact contained in such registration
statement or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statement
therein, in the light of the circumstances under which they made, not
misleading.
5.3 Modification. Neither this Agreement nor any provisions hereof shall
be modified, discharged or terminated except by an instrument in writing
signed by the party against whom any waiver, change, discharge or
termination is sought.
5.4 Notices. All notices, authorizations, demands or requests required or
permitted to be delivered to any party in connection with this Agreement
shall be in writing and shall be deemed to have been duly given if
personally delivered, if sent by facsimile transmission (with receipt
confirmed by automatic transmission report), if sent by a nationally-
recognized overnight courier with charges prepaid, if sent by registered or
certified mail, return receipt requested and postage prepaid (or by the most
nearly comparable method if mailed from or to a location outside the United
States), or addressed as follows:
If to the Company, to:
Chyron Corporation
5 Hub Drive
Melville, New York 11747
Attn: President
Fax: (516) 845-5210
With copies (which copies shall not constitute notice) to:
Camhy Karlinsky & Stein LLP
1740 Broadway
New York, New York 10019
Attn: Robert S. Matlin, Esq.
Fax: 212-977-8389
If to the undersigned, to: the address shown on page 11 or 12 hereof;
or to such other address as the party to whom the notice is to be given may
have furnished to the other party hereto in writing in accordance with the
provisions of this Section 5.4. Any such notice or communication shall be
deemed to have been received (i) in the case of personal delivery, on the
date of such delivery, (ii) in the case of facsimile transmission (with
receipt confirmed by automatic transmission report), on the date of such
transmission, (iii) in the case of a nationally-recognized overnight
courier, on the next business day after the date when delivered to such
courier, and (iv) in the case of mailing (or by the most nearly comparable
method if mailed from or to a location outside the United States), on the
third business day following that on which the piece of mail containing such
communication is posted; provided, however, that three additional business
days shall be added to the time any notice or communication sent from or to
a location outside the United States shall be deemed to have been received
in (iii) or (iv) above.
5.5 Counterparts. This Agreement may be executed through the use of separate
signature pages or in any number of counterparts (and by facsimile
signature), and each of such counterparts shall, for all purposes,
constitute one agreement binding on all parties, notwithstanding that all
parties are not signatories to the same counterpart.
5.6 Binding Effect. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties and their
heirs, executors, administrators, successors, legal representatives and
assigns. If the undersigned is more than one person, the obligation of the
undersigned shall be joint and several and the agreements, representations,
warranties and acknowledgments herein contained shall be deemed to be made
by and be binding upon each such person and his heirs, executors,
administrators and successors.
5.7 Entire Agreement. This Agreement and the documents referenced herein
contain the entire agreement of the parties and there are no
representations, covenants or other agreements except as stated or referred
to herein and therein.
5.8 Assignability. This Agreement is not transferable or assignable by the
undersigned.
5.9 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
conflicts of law principles of such State.
5.10 Pronouns. The use herein of the masculine pronouns "he", "him" or
"his" or similar terms shall be deemed to include the feminine and neuter
genders as well and the use herein of the singular pronoun shall be deemed
to include the plural as well.
ALL SUBSCRIBERS MUST COMPLETE THIS PAGE
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the
day of December, 1998.
X $1,000 Per Debenture = $
Debentures Subscribed For Purchase Price
Manner in which Title is to be held (Please Check One):
1. Individual
2. Joint Tenants with Right of Survivorship
3. Community Property
4. Tenants in Common
5. Corporation/Partnership/Limited Liability Company
6. IRA
7. Trust/Estate/Pension or Profit Sharing Plan
Date Opened:
8. As a Custodian for:
Under the Uniform Gift to Minors Act of the State of:
9. Married with Separate Property
10. Keogh
11. Tenants by the Entirety
IF MORE THAN ONE SUBSCRIBER, EACH SUBSCRIBER MUST SIGN.
INDIVIDUAL SUBSCRIBES MUST COMPLETE PAGE 11.
SUBSCRIBERS WHICH ARE ENTITIES MUST COMPLETE PAGE 12.
EXECUTION BY NATURAL PERSONS
Exact Name in Which Title is to be Held
Name:
(Please Print)
Residence:
Number and Street
City, State and Zip Code
Social Security Number
(Signature)
Name of Additional Purchaser:
(Please Print)
Address of Additional Purchaser:
Number and Street
City, State and Zip Code
Social Security Number
(Signature)
ACCEPTED this day of December, 1998 on behalf of the Company.
BY:/s/Edward Grebow
Name: Edward Grebow
Title: President and Chief Executive Officer
EXECUTION BY SUBSCRIBER WHICH IS AN ENTITY
(Corporation, Partnership, Trust, LLC, Etc.)
Name of Entity (Please Print)
Date of Incorporation or Organization:
State of Principal Offices:
Federal Taxpayer Identification Number:
BY:
Name:
Title:
[seal]
Attest:
(If Entity is a Corporation)
Address:
ACCEPTED this ______ day of December, 1998 on behalf of the Company.
BY:/s/Edward Grebow
Name: Edward Grebow
Title: President and Chief Executive Officer