VOTING AND IRREVOCABLE PROXY AGREEMENT
This VOTING AND IRREVOCABLE PROXY AGREEMENT (the "Voting Agreement"), is
dated as of March 29, 2000 among Crown Acquisition Partners, LLC, a Delaware
limited liability company ("Investor"), and each other person or entity set
forth on the signature page hereof (the "Stockholders").
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 Stockholders, and each 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 each
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.
Each Stockholder hereby irrevocably and unconditionally agrees to vote all
Shares that such 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. Each Stockholder hereby
irrevocably and unconditionally agrees to vote all Shares that such
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 the purpose of seeking the approvals set forth in Section 1.1,
if any.
Section 1.3 IRREVOCABLE PROXY. Each 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, each Stockholder hereby grants a proxy,
effective upon the First Closing under the Securities Purchase Agreement,
appointing Investor as each Stockholder's attorney-in-fact and proxy, with
full power of substitution, for
and in each 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 each 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 such Stockholder under
Section 1.2. The proxy granted by each 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.
Section 1.4 NO PROXIES FOR OR DISPOSITIONS OF SHARES. Except pursuant
to the terms of this Agreement, a 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, a Stockholder may sell up to 100,000 Shares at any
time, whether before or after the No Sale Date.
Section 1.5 RECORD OWNER. If a Stockholder is not the record owner of
any Shares as to which such Stockholder is the beneficial owner, such
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
Each Stockholder represents and warrants to Investor that:
Section 2.1 AUTHORIZATION. The execution, delivery and performance by
each Stockholder of this Agreement and the consummation by each Stockholder
of the transactions contemplated hereby are within the powers of each
Stockholder and, if Stockholder is an entity, 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 such Stockholder
represents he is authorized to bind the entity thereby. This Agreement
constitutes a valid and binding Agreement of each Stockholder, 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 2.2 NON-CONTRAVENTION. The execution, delivery and
performance by each 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
2
to a loss of any benefit to which each Stockholder is entitled under any
provision of any agreement or other instrument binding on any Stockholder or
(iii)result in the imposition of any lien or encumbrance on any asset of the
Stockholders.
Section 2.3 OWNERSHIP OF SHARES. Subject to community property laws
where applicable, each Stockholder is the sole beneficial owner of the Shares
set forth under such 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 each
Stockholder's name on the signature page hereto, each 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 any Stockholder,
Investor or the Company in respect of this Agreement based upon any
arrangement or agreement made by or on behalf of any Stockholder or the
Company.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF INVESTOR
Investor represents and warrants to each 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 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.
3
Section 3.3 FINDER'S FEES. No investment banker, broker, finder or
other intermediary is entitled to a fee or commission from a 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 each 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
Stockholders' 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
each Stockholder pursuant to this Agreement; provided, however, that this
Section 4.1 shall not obligate any 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 the earlier to occur of
(i)completion of the Second Closing (as defined in the Securities Purchase
Agreement) or (ii)the Termination Date (as defined in the Securities Purchase
Agreement).
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):
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 a Stockholder: to the address set forth under such
Stockholder's name on ExhibitA hereto, with a
copy to the person indicated on Exhibit A
hereto.
4
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 Stockholders 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 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
5
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 SALE. Through the date that is the earlier to
occur of the Second Closing and the record date of the Company Stockholders'
Meeting, each Stockholder agrees to provide written notice to Investor of any
proposed sale of Shares by such Stockholder (other than shares permitted to
be transferred pursuant to the last sentence of Section 1.4).
Section 4.10 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 4.11 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 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)
6
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/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: XXXXXXX X. XXXXXX, AS TRUSTEE
FOR THE XXXXXX 1997 TRUST
1,013,750 Shares
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: XXXXXXX X. XXXXXX
With respect to 1,963 Shares
held in the
Equity Marketing, Inc. 401(k) Plan
EXHIBIT A
Address of Stockholders
XXXXXXX X. XXXXXX
c/o Equity Marketing, Inc.
0000 Xxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
