1
EXHIBIT 4.0
THIS WARRANT AND THE SECURITIES TO BE ISSUED UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE. NEITHER THIS
WARRANT NOR ANY INTEREST HEREIN NOR THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO (I) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (II) AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS, SUCH EXEMPTION TO BE EVIDENCED BY SUCH
DOCUMENTATION AS THE COMPANY MAY REASONABLY REQUEST.
Warrant to Purchase:
5,712 Shares of Series B Senior Cumulative Participating
Convertible Preferred Stock
Dated: Xxxxx 00, 0000
XXXXXXX
TO PURCHASE SHARES OF SERIES B SENIOR CUMULATIVE PARTICIPATING
CONVERTIBLE PREFERRED STOCK OF
EQUITY MARKETING, INC.
THIS IS TO CERTIFY THAT Crown Acquisition Partners, LLC, a
Delaware limited liability company (the "Investor"), is entitled, at any time
prior to March 29, 2005 (the "Expiration Date"), to purchase from Equity
Marketing, Inc., a Delaware corporation (the "Company"), 5,712 shares of Series
B Senior Cumulative Participating Convertible Preferred Stock (the "Series B
Preferred Stock") as described in the attached Certificate of Designation of the
Company (the "Certificate of Designation"), in whole or in part, at a purchase
price of $1,000 per share (the "Exercise Price"), all on the terms and
conditions and pursuant to the provisions hereinafter set forth. The Exercise
Price is subject to adjustment as provided herein.
1. Definitions.
As used in this Warrant, the following terms have the respective
meanings set forth below:
"Business Day" shall mean any day that is not a Saturday or Sunday or
a day on which banks are required or permitted to be closed in the State of New
York.
2
"Closing Price" shall have the meaning set forth in the Certificate
of Designation.
"Closing Date" shall mean March 29, 2000.
"Common Stock" shall have the meaning set forth in the Certificate of
Designation.
"Holder" means Investor and any person or entity that acquires all or
a portion of this Warrant from Investor or its transferees.
"Trading Day" means any day in which the Nasdaq National Market or
other applicable stock exchange or market is open for business.
"Trading Price" shall mean the average of the Closing Prices of the
Common Stock for the 20 consecutive Trading Days ending on the day before the
day in question.
"Warrant Price" shall mean an amount equal to (i) the number of
shares of Series B Preferred Stock being purchased upon exercise of this Warrant
pursuant to Section 2.1, multiplied by (ii) the Exercise Price.
"Warrant Stock" shall mean the shares of Series B Preferred Stock
purchased by the Holder upon the exercise hereof.
2. Exercise of Warrant.
2.1. Manner of Exercise. At any time or from time to time from and
after the Closing Date and until 5:00 P.M., New York time, on the Expiration
Date, Holder may exercise this Warrant, on any Business Day, for all or any part
of the number of shares of Series B Preferred Stock purchasable hereunder.
In order to exercise this Warrant, in whole or in part, Holder shall
deliver to the Company at its principal office at 0000 Xxx Xxxxxxx Xxxxxxxxx,
Xxx Xxxxxxx, Xxxxxxxxxx 00000 (i) a written notice of Holder's election to
exercise this Warrant, which notice shall specify the number of shares of Series
B Preferred Stock to be purchased, (ii) payment of the Warrant Price (x) in
immediately available funds or (y) by the withholding from the shares of Warrant
Stock to be issued upon exercise that number of shares of Series B Preferred
Stock that, if converted as of the date of exercise, would be convertible into
shares of Common Stock with an aggregate Trading Price as of the date of
exercise equal to the Warrant Price and (iii) this Warrant. Such notice shall be
substantially in the form appearing at the end of this Warrant as Exhibit A,
duly executed by Holder. Upon receipt of the items specified in the second
preceding sentence, the Company shall execute or cause to be executed and
deliver or cause to be delivered to Holder a certificate or certificates
representing the aggregate number of full shares of Series B Preferred Stock
issuable upon such exercise, together with cash in lieu of any fraction of a
share, as hereinafter provided. The stock certificate or certificates so
delivered shall be in such denomination or denominations as Holder shall request
in the notice and shall be registered in the name of Holder. This Warrant shall
be deemed to have been exercised and such certificate or certificates shall be
deemed to have been issued, and Holder shall be deemed to have become a holder
of record of such shares for all purposes, as of the date the notice, together
with the
2
3
Warrant Price and this Warrant, are received by the Company as described above.
If this Warrant shall have been exercised in part, the Company shall, at the
time of delivery of the certificate or certificates representing Warrant Stock,
deliver to Holder a new Warrant evidencing the right of Holder to purchase the
unpurchased shares of Series B Preferred Stock called for by this Warrant, which
new Warrant shall in all other respects be identical with this Warrant, or, at
the request of Holder, appropriate notation may be made on this Warrant and the
same returned to Holder.
2.2. Shares to be Validly Issued. All shares of Series B Preferred
Stock issuable upon the exercise of this Warrant shall be validly issued, fully
paid and nonassessable. The Company shall be entitled to withhold any amounts
required to be withheld under applicable law from any amounts to be paid to the
Holder hereunder.
2.3. No Fractional Shares. The Company shall not be required to issue
fractions of shares upon the exercise of this Warrant. If any fraction of a
share would otherwise be issuable, the Company shall pay to the Holder an amount
in cash equal to such fraction multiplied by the Liquidation Preference (as
defined in the Certificate of Designation).
3. Adjustments.
3.1. In case the Company shall (i) declare a dividend or make a
distribution on its Series B Preferred Stock payable in shares of its capital
stock, (ii) subdivide its outstanding shares of Series B Preferred Stock through
stock split or otherwise, or (iii) combine its outstanding shares of Series B
Preferred Stock into a smaller number of shares of Series B Preferred Stock, the
number and/or nature of Warrant Shares purchasable upon exercise of each Warrant
immediately prior thereto shall be adjusted so that the Holder shall be entitled
to receive the kind and number of Warrant Shares or other securities of the
Company which he would have owned or have been entitled to receive after the
happening of any of the events described above, had such Warrant been exercised
immediately prior to the happening of such event or any record date with respect
thereto. An adjustment made pursuant to this paragraph (a) shall become
effective retroactively as of the record date of such event.
3.2. Merger, Consolidation Or Disposition Of Assets. In the case of
any capital reorganization or reclassification of the capital stock of the
Company or in the case of consolidation of the Company or the merger of the
Company with or into any other entity or the sale or transfer of all or
substantially all the assets of the Company pursuant to which the Series B
Preferred Stock is converted into other securities, cash or assets, upon
consummation of such transaction, this Warrant shall automatically become
exercisable for the kind and amount of securities, cash or other assets
receivable upon the reorganization, reclassification, consolidation, merger,
sale or transfer by a holder of the number of shares of Series B Preferred Stock
into which this Warrant might have been converted immediately prior to such
consolidation, merger, transfer or sale. Appropriate adjustment shall be made in
the application of the provisions herein set forth with respect to the rights
and interests thereafter of the Holder, to the end that the provisions set forth
herein shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other securities or property thereafter
deliverable upon the exercise of this Warrant.
3
4
3.3. Adjustments to Exercise Price. Whenever the number of shares of
Warrant Stock purchasable upon the exercise of each Warrant is adjusted, as
provided in this Section 3, the Exercise Price with respect to the Warrant Stock
shall be adjusted by multiplying such Exercise Price immediately prior to such
adjustment by a fraction, of which the numerator shall be the number of shares
of Warrant Stock purchasable upon the exercise of each Warrant immediately prior
to such adjustment, and of which the denominator shall be the number of shares
of Warrant Stock so purchasable immediately thereafter.
3.4. Adjustments To Common Stock. The Common Stock or other
consideration into which the Warrant Stock may be converted shall be subject to
the adjustments set forth in Section 3 of the Certificate of Designation as if
such Warrant Stock had been outstanding since the Preferred Stock Issue Date (as
defined in the Certificate of Designation). Notwithstanding the foregoing, no
single event shall give rise to more than one such adjustment or entitle the
Holder to a larger amount of Common Stock than such Holder would have received
had it exercised this Warrant immediately and converted the Warrant Stock
immediately following the time of the adjustment set forth in the immediately
preceding sentence, or entitle the Holder to any dividends on the Common Stock
for any periods prior to such exercise and conversion.
4. Rights of Holder.
4.1. No Impairment. The Company shall not by any action, including,
without limitation, amending its Certificate of Incorporation or comparable
governing instruments or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such actions as may be
necessary or appropriate to protect the rights of Holder against impairment.
Without limiting the generality of the foregoing, the Company will (a) take all
such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Series B
Preferred Stock upon the exercise of this Warrant and (b) obtain all such
authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof as may be necessary to enable the Company to perform its
obligations under this Warrant.
5. Reservation and Authorization of Series B Preferred Stock.
From and after the Closing Date, the Company shall at all times
reserve and keep available for issue upon the exercise of Warrants such number
of its authorized but unissued shares of Series B Preferred Stock as will be
sufficient to permit the exercise in full of all outstanding Warrants. All
shares of Series B Preferred Stock which shall be so issuable, when issued upon
exercise of any Warrant and payment therefor in accordance with the terms of
such Warrant, shall be duly and validly issued and fully paid and nonassessable,
and not subject to preemptive rights.
4
5
6. Transferability; Form of Warrants.
6.1. Transfer. None of the Warrant nor the Shares issuable upon
exercise hereof nor any interest therein may be offered, sold, transferred,
pledged, hypothecated or otherwise disposed of, except pursuant to (i) an
effective registration statement under the Securities Act and any applicable
state securities laws or (ii) an exemption from the registration requirements of
the Securities Act and any applicable state securities laws, such exemption to
be evidenced by such documentation as the Company may reasonably request,
including an opinion of counsel, in writing and addressed to the Company (which
counsel and opinion shall be reasonably satisfactory to the Company), that such
transfer is not in violation of the Securities Act and any applicable state
laws. The Company shall treat the Holder as the holder and owner hereof for all
purposes, unless the Company has been given notice to the contrary. Subject to
compliance with the transfer restrictions set forth above, upon the delivery to
the Company at its principal corporate office of this Warrant along with a duly
completed Assignment Form substantially in the form of Exhibit B hereto, the
Company shall execute and deliver a new Warrant in the form of this Warrant, but
registered in the name of the transferee, to purchase the Warrant Shares
assigned to the transferee. In case the Holder shall assign this Warrant with
respect to less than all of the Warrant Shares, the Company shall execute a new
warrant in the form of this Warrant for the balance of the Warrant Shares and
deliver such new warrant to the transferring Holder.
6.2. Warrant Register; Ownership of Warrant. The Company will keep at
its principal office a register in which the Company will provide for the
registration of Warrants and the registration of transfers of Warrants. The
Company may treat the person in whose name any Warrant is registered on such
register as the owner thereof for all other purposes, and the Company shall not
be affected by any notice to the contrary.
6.3. Restrictive Legend. Each certificate for Warrant Stock shall be
stamped or otherwise imprinted with the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
NEITHER THIS SECURITY NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (i) AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND ANY APPLICABLE
STATE SECURITIES LAWS OR (ii) AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, SUCH EXEMPTION TO
BE EVIDENCE BY SUCH DOCUMENTATION AS THE ISSUER MAY REASONABLY REQUEST.
Any certificate issued at any time in exchange or substitution for
any certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Securities Act ) shall also bear such legend unless, the holder of such
certificate shall have delivered to the Company an opinion of counsel, in
writing and addressed to the Company (which counsel and opinion shall be
reasonably
5
6
acceptable to the Company), that the securities represented thereby need no
longer be subject to restrictions on resale under the Securities Act or any
state securities laws.
6.4. Registration Rights. The holder of Warrants and Warrant Stock
shall have the registration rights set forth in the Registration Rights
Agreement, dated as of March 29, 2000 between the Holder and the Company.
7. Loss or Mutilation. Upon receipt by the Company from any Holder of
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of this Warrant and indemnity reasonably satisfactory
to it, and in case of mutilation upon surrender and cancellation hereof, the
Company will execute and deliver in lieu hereof a new Warrant of like tenor to
such Holder; provided, in the case of mutilation, no indemnity shall be required
if this Warrant in identifiable form is surrendered to the Company for
cancellation.
8. Miscellaneous.
8.1. Expiration. This Warrant shall expire and be of no further force
and effect on the Expiration Date.
8.2. Notice Generally. Any notice, demand, request, consent,
approval, declaration, delivery or other communication hereunder to be made
pursuant to the provisions of this Warrant shall be sufficiently given or made
if in writing and either delivered in person with receipt acknowledged or sent
by registered or certified mail, return receipt requested, postage prepaid or by
a nationally recognized overnight courier or by telecopy and confirmed by
telecopy answerback, addressed as follows:
(a) If to the Holder, at its last known address appearing on the
books of the Company maintained for such purpose.
with a copy to: Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: W. Xxxx Xxxxxx
Facsimile: (000) 000-0000
(b) If to the Company at:
0000 Xxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxxxx & XxXxxxxx
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
6
7
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served (i) on the date on which personally
delivered, with receipt acknowledged, (ii) on the date on which telecopied and
confirmed by written or telephonic acknowledgment, (iii) on the date set forth
on the executed return receipt in the case of registered or certified mail or
(iv) on the next business day after the same shall have been deposited for
overnight delivery with a nationally recognized overnight courier, provided that
proof of receipt is received. Failure or delay in delivering copies of any
notice, demand, request, approval, declaration, delivery or other communication
to the Person designated above to receive a copy shall in no way adversely
affect the effectiveness of such notice, demand, request, approval, declaration,
delivery or other communication.
8.3. No Rights as Shareholders. This Warrant shall not entitle
the Holder to any rights as a stockholder of the Company.
8.4. Successors and Assigns. Subject to the provisions of
Section 3.2, this Warrant and the rights evidenced hereby shall inure to the
benefit of and be binding upon the successors of the Company.
8.5. Amendment. This Warrant may be modified or amended or the
provisions hereof waived only with the written consent of the Company and the
Holder.
8.6. Severability. Wherever possible, each provision of this
Warrant shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Warrant shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Warrant, provided that no such
severance shall be effective if it would change the economic costs or benefits
of this Warrant to the Company or the Holder.
8.7. Headings. The headings used in this Warrant are for the
convenience of reference only and shall not, for any purpose, be deemed a part
of this Warrant.
8.8. Governing Law. This Warrant shall be governed by the laws
of the State of Delaware, without regard to the provisions thereof relating to
conflict of laws.
Signature page follows
7
8
IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed as of the date first above written.
Dated: March 29, 2000
EQUITY MARKETING, INC.
By: /s/ XXXXXX X. XXXX
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Chairman of the Board and Chief
Executive Officer
Acknowledged and Agreed:
CROWN ACQUISITION PARTNERS, LLC
By: /s/ XXXXXXX X. XXXXXXXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Manager
8
9
EXHIBIT A
EXERCISE FORM
[To be executed only upon exercise of Warrant]
The undersigned registered owner of this Warrant irrevocably
exercises this Warrant for the purchase of _____ Shares of Series B Preferred
Stock of Equity Marketing, Inc. and herewith makes payment therefor, all at the
price and on the terms and conditions specified in this Warrant and requests
that certificates for the shares of Series B Preferred Stock hereby purchased
(and any securities or other property issuable upon such exercise) be issued in
the name of the undersigned, if such shares of Series B Preferred Stock shall
not include all of the shares of Series B Preferred Stock issuable as provided
in this Warrant, that a new Warrant of like tenor and date for the balance of
the shares of Series B Preferred Stock issuable hereunder be delivered to the
undersigned.
Check the following box in the case of a "cashless exercise"
pursuant to Section 2.1(ii)(y)...............[ ]
___________________________________
(Name of Registered Owner)
___________________________________
(Signature of Registered Owner)
___________________________________
(Street Address)
___________________________________
(City) (State) (Zip Code)
NOTICE: The signature on this subscription must correspond with
the name as written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
A-1
10
EXHIBIT B
ASSIGNMENT FORM
[To be executed only upon transfer of Warrant]
For value received, the undersigned registered holder of the within Warrant
hereby sells, assigns and transfers unto ____________________ the right
represented by such Warrant to purchase __________________(1) Warrant Shares and
appoints _________________ Attorney to make such transfer on the books of Equity
Marketing, Inc. maintained for such purpose, with full power of substitution in
the premises.
Dated:
(Signature must conform in all respects to
name of holder as specified on the face of
Warrant)
__________________________________________
(Street Address
__________________________________________
(City) (State) (Zip Code)
Signed in the presence of:
____________________________
____________________________
---------------
(1) Insert here the number of Warrant Shares as to which this Warrant is being
assigned. In the case of a partial assignment, a new Warrant or Warrants
will be issued and delivered, representing the unassigned portion of the
Warrant, to the holder surrendering the Warrant.
B-1
