EXHIBIT 4
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 Exhibit A 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
Exhibit - A
