EXHIBIT 3
VOTING AND IRREVOCABLE PROXY AGREEMENT
This VOTING AGREEMENT (the "Voting Agreement"), is dated as of March 29,
2000 among Crown Acquisition Partners, LLC, a Delaware limited liability company
("Investor") and Xxxxxx X. Xxxx (the "Stockholder").
WHEREAS, in order to induce Investor to enter into the Securities Purchase
Agreement, dated as of the date hereof (the "Securities Purchase Agreement"),
with Equity Marketing, Inc., a Delaware corporation (the "Company"), Investor
has requested the Stockholder, and the Stockholder has agreed, to enter into
this Agreement with respect to shares of common stock of the Company, par value
$.001 per share (the "Common Stock") that the Stockholder beneficially owns,
whether now or hereafter acquired (the "Shares").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
GRANT OF PROXY; VOTING AGREEMENT; TRANSFER
Section 1.1 AGREEMENT TO VOTE FOR SECURITIES PURCHASE AGREEMENT. The
Stockholder hereby irrevocably and unconditionally agrees to vote all Shares
that the Stockholder is entitled to vote, at the time of any vote to approve the
Securities Purchase Agreement and the transactions contemplated thereby
(including the issuance of the Additional Securities (as defined in the
Securities Purchase Agreement)) at any meeting of the stockholders of the
Company (if one is held), and at any adjournment or postponement thereof, at
which the Securities Purchase Agreement (or any amended version thereof to which
the Stockholder consents) is submitted for the consideration and vote of the
stockholders of the Company (or in connection with any consent solicitation
conducted for such purpose), in favor of the approval of the Securities Purchase
Agreement and the transactions contemplated by the Securities Purchase Agreement
(including the issuance of the Additional Securities) and against any action
which would reasonably be expected to result in a failure of the conditions
described in Sections 6.3 and 6.4 of the Securities Purchase Agreement to be
satisfied.
Section 1.2 AGREEMENT TO VOTE FOR NOMINEES. The Stockholder hereby
irrevocably and unconditionally agrees to vote all Shares that the Stockholder
is entitled to vote and/or to cause such Shares to be voted in favor of the
Designees (as defined in the Securities Purchase Agreement) of Investor
nominated by the Company (or, if the Company fails to nominate such Designees,
which Investor is entitled to have nominated by the Company pursuant to the
Securities Purchase Agreement) for election as directors at any meeting of the
Company's stockholders called, or any consent solicitation conducted, for such
purpose.
Section 1.3 IRREVOCABLE PROXY. The Stockholder hereby revokes any and all
previous proxies granted with respect to the Shares that are inconsistent with
the voting agreements set forth in Sections 1.1 and 1.2. By entering into this
Agreement, the Stockholder hereby grants a proxy, effective upon the First
Closing under the Securities Purchase Agreement, appointing Investor as the
Stockholder's attorney-in-fact and proxy, with full power of substitution, for
and in the Stockholder's name, to vote, express, consent or dissent, or
otherwise to utilize such voting power solely in the manner contemplated by and
regarding the proposals specifically
described in Sections 1.1 and 1.2 above. The proxy granted by the Stockholder
pursuant to this Article 1 is irrevocable and is coupled with an interest and is
granted in consideration of Investor entering into this Agreement and the
Securities Purchase Agreement and as security for the obligations of the
Stockholder under Section 1.2. The proxy granted by the Stockholder shall
terminate upon termination of this Agreement in accordance with its terms or,
with respect to particular Shares, the sale of such Shares in accordance with
the terms hereof. Without limiting the foregoing, the Stockholder will, upon
Investor's request, take all action as shall be reasonably required from time to
time in order to appoint Investor as its duly authorized proxy holder for the
Shares solely for the purpose set forth in Section 1.2. Such appointment shall
be renewed upon Investor's request as appropriate by the Stockholder during the
term of this Agreement in order to ensure that Investor remains the duly
authorized proxy holder of the Stockholder at all times during such term solely
for the purpose set forth in Section 1.2.
Section 1.4 NO PROXIES FOR OR DISPOSITIONS OF SHARES. Except pursuant to
the terms of this Agreement, the Stockholder shall not, without the prior
written consent of Investor, directly or indirectly, (i) grant any proxies or
enter into any voting trust or other agreement or arrangement with respect to
the voting of any Shares that are inconsistent with the voting agreements set
forth in Sections 1.1 and 1.2 or (ii) prior to the earlier to occur of the
Second Closing or the record date for the Company Stockholder Meeting (as
defined in the Securities Purchase Agreement) (the "No Sale Date"), sell,
assign, transfer, encumber or otherwise dispose of (collectively "Sell,"
correlative terms to have correlative meanings), or enter into any contract,
option or other arrangement or understanding with respect to the direct or
indirect sale of any Shares. Notwithstanding anything in Section 1.4(i) or (ii)
to the contrary, the Stockholder may sell up to 100,000 Shares at any time,
whether before or after the No Sale Date so long as the recipient agrees to be
bound by the terms of this Agreement, executes a counterpart to such effect and
Investor receives such executed Voting Agreement and proxy in the form hereof.
The Stockholder agrees not to permit any such transfer unless the Stockholder
has complied with the foregoing requirements.
Section 1.5 RECORD OWNER. If the Stockholder is not the record owner of any
Shares as to which the Stockholder is the beneficial owner, the Stockholder
agrees to cause or direct the record holder to vote such Shares in accordance
with the terms of this Agreement or, to the extent permitted by law, to provide
a proxy to Investor with respect thereto.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
The Stockholder represents and warrants to Investor that:
Section 2.1 AUTHORIZATION. The execution, delivery and performance by the
Stockholder of this Agreement and the consummation by the Stockholder of the
transactions contemplated hereby are within the powers of the Stockholder and
such execution, delivery and performance have been duly authorized by all
necessary action of such entity and the individual signing this Agreement on
behalf of the Stockholder represents he is authorized to bind the entity
thereby. This Agreement constitutes a valid and binding Agreement of the
Stockholder, enforceable in accordance with its terms, subject to the effect of
applicable bankruptcy,
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insolvency, reorganization, moratorium and other similar laws affecting the
rights of creditors generally and the effect of general principles of equity.
Section 2.2 NON-CONTRAVENTION. The execution, delivery and performance by
the Stockholder of this Agreement and the consummation of the transactions
contemplated hereby do not and will not, (i) violate any applicable law, rule,
regulation, judgment, injunction, order or decree, (ii) except as set forth in
Section 3.2(d) of the Securities Purchase Agreement, require any consent or
other action by any person or private or governmental entity under, constitute a
breach of or default under, or give rise to any right of termination,
cancellation or acceleration or to a loss of any benefit to which the
Stockholder is entitled under any provision of any agreement or other instrument
binding on the Stockholder or (iii) result in the imposition of any lien or
encumbrance on any asset of the Stockholder.
Section 2.3 OWNERSHIP OF SHARES. Subject to community property laws where
applicable, the Stockholder is the sole beneficial owner of the Shares set forth
under the Stockholder's name on the signature page hereto, free and clear of any
lien or encumbrance (including any restriction on the right to vote or otherwise
dispose of the Shares). None of such Shares is subject to any voting trust,
proxy or other agreement or arrangement with respect to the voting of such
Shares.
Section 2.4 TOTAL SHARES. Except for the Shares set forth under the
Stockholder's name on the signature page hereto, the Stockholder does not
beneficially own any (i) shares of capital stock or voting securities of the
Company, (ii) securities of the Company convertible into or exchangeable for
shares of capital stock or voting securities of the Company or (iii) options or
other rights to acquire from the Company any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of the Company, other than options granted under the Company's stock
option plans.
Section 2.5 FINDER'S FEES. No investment banker, broker, finder or other
intermediary is entitled to a fee or commission from the Stockholder, Investor
or the Company in respect of this Agreement based upon any arrangement or
agreement made by or on behalf of the Stockholder or the Company.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Investor represents and warrants to the Stockholder:
Section 3.1 CORPORATE AUTHORIZATION. The execution, delivery and
performance by Investor of this Agreement and the consummation by Investor of
the transactions contemplated hereby are within the limited partnership powers
of Investor and have been duly authorized by all necessary limited partnership
action. This Agreement constitutes a valid and binding Agreement of Investor,
enforceable in accordance with its terms, subject to the effect of applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the rights of creditors generally and the effect of general principles
of equity.
Section 3.2 NON-CONTRAVENTION. The execution, delivery and performance by
Investor of this Agreement and the consummation of the transactions contemplated
hereby do not and will
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not, (i) violate any applicable law, rule, regulation, judgment, injunction,
order or decree, (ii) except as set forth in Section 3.3(b) of the Securities
Purchase Agreement, require any consent or other action by any person or private
or governmental entity under, constitute a breach of or default under, or give
rise to any right of termination, cancellation or acceleration or to a loss of
any benefit to which Investor is entitled under any provision of any agreement
or other instrument binding on Investor or (iii) result in the imposition of any
lien or encumbrance on any asset of Investor.
Section 3.3 FINDER'S FEES. No investment banker, broker, finder or other
intermediary is entitled to a fee or commission from the Stockholder or the
Company in respect of this Agreement based upon any arrangement or agreement
made by or on behalf of Investor.
ARTICLE 4
MISCELLANEOUS
Section 4.1 FURTHER ASSURANCES. Investor and the Stockholder will execute
and deliver, or cause to be executed and delivered, all further documents and
instruments and use all reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations, to vote the Stockholder's
Shares to approve the Securities Purchase Agreement and the transactions
contemplated thereby (including the issuance of the Additional Securities) and
to take all other acts required to be taken by Investor or the Stockholder
pursuant to this Agreement; provided, however, that this Section 4.1 shall not
obligate the Stockholder to act in any capacity other than as a stockholder of
the Company, including, but not limited to, as an officer, consultant or
director of the Company.
Section 4.2 AMENDMENTS; TERMINATION. Any provision of this Agreement may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to this Agreement or in the
case of a waiver, by the party against whom the waiver is to be effective. This
Agreement shall terminate upon Investor ceasing to have the exclusive right to
designate a director under Section 4.4 of the Securities Purchase Agreement
(assuming directors are not elected by holders of the Preferred Stock, voting as
a separate class, pursuant to the Certificate of Designation). In addition, this
Agreement will terminate at such time as (i) the Stockholder ceases to
beneficially own any Shares (other than as a result of a disposition of such
Shares in violation of this Agreement) or (ii) if Investor is permitted to vote
any shares of capital stock held by it as a single class with holders of Common
Stock for the election of directors pursuant to paragraph 6 of the Certificate
of Designation (any such shares that may be voted as a single class with the
Common Stock, the "Eligible Shares"), Investor fails to vote such Eligible
Shares for the Stockholder for election as a director at any meeting of the
Company's stockholders (unless the Stockholder is not a nominee for director at
such meeting).
Section 4.3 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given upon receipt by the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
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if to Investor, to: Crown Acquisition Partners, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: W. Xxxx Xxxxxx
Facsimile: (000) 000-0000
if to the Stockholder: Xxxxxx X. Xxxx
c/o Equity Marketing, Inc.
0000 Xxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
with a copy to: Equity Marketing, Inc.
0000 Xxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
and
Xxxxxxx & XxXxxxxx
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
Section 4.4 EXPENSES. Except as provided in Section 9.5 of the Securities
Purchase Agreement, all costs and expenses incurred in connection with this
Agreement shall be paid by the party incurring such cost or expense.
Section 4.5 SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided,
however, that no party may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the consent of the other
parties hereto. Notwithstanding anything contained in this Agreement to the
contrary, nothing in this Agreement, expressed or implied, is intended to confer
on any person other than the parties hereto or their respective successors and
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement, except that that the covenants made by the Stockholder in
Article 1 hereof shall also inure to the benefit of and be enforceable by the
Company (it being expressly understood, however, that such Article may be
amended by the
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parties, and compliance with any of the provisions of that Article may be
waived, in each case without the consent of or notice to the Company).
Section 4.6 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware, without regard for the
conflicts of law principles thereof.
Section 4.7 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts (which may be by facsimile), each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by all of the other
parties hereto.
Section 4.8 SEVERABILITY. If any term, provision or covenant of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, and if the rights or obligations of any party
hereto under this Agreement will not be materially and adversely affected
thereby, (i) such provision will be fully severable, (ii) this Agreement will be
construed and enforced as if such invalid, void or unenforceable provision had
never comprised a part hereof, (iii) the remaining provisions of this Agreement
will remain in full force and effect and will not be affected by the invalid,
void or unenforceable provision or by its severance herefrom and (iv) in lieu of
such invalid, void or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such invalid, void or unenforceable provision as may be possible so
as to carry out the intent of the parties hereto to the maximum extent permitted
by law.
Section 4.9 NOTICE OF SALES. Through the date that is the earlier to occur
of the Second Closing and the record date of the Company Stockholder Meeting,
the Stockholder agrees to provide written notice to Investor of any proposed
sale of Shares by the Stockholder at least three business days prior to such
sale.
Section 4.10 LEGEND. The Stockholder agrees that the certificates
representing any of the Stockholder's Shares (other than those held in the
Company's 401(k) Plan) the sale of which is prohibited by Section 1.4 shall, at
the request of Investor, contain a legend to the effect that such Shares are
subject to the terms of this Agreement, which limits the ability of the
Stockholder to sell such Shares. In the event the Second Closing does not occur
on or prior to May 5, 2000, the Stockholder shall, if requested by Investor,
promptly deliver the Stockholder's certificates to the Company for legending in
accordance with this section. The parties agree to cooperate in promptly
removing the legend from any certificate that represents Shares that are no
longer subject to any sale restrictions.
Section 4.11 ENTIRE AGREEMENT. This Agreement, its exhibits and the
documents executed in connection herewith, constitute the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral and written, between the
parties hereto with respect to the subject matter hereof.
Section 4.12 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement is
not performed in accordance with
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the terms hereof and that the parties shall be entitled to specific performance
of the terms hereof in addition to any other remedy to which they are entitled
at law or in equity.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
CROWN ACQUISITION PARTNERS, LLC
By: /s/ XXXXXXX X. XXXXXXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Manager
/s/ XXXXXX X. XXXX
-------------------------------------
Name: XXXXXX X. XXXX
with respect to 1,542,850 Shares held
directly and 1,953 Shares held in the
Equity Marketing, Inc. 401(k) Plan
