EXHIBIT 5
REGISTRATION RIGHTS AGREEMENT
BETWEEN
CROWN ACQUISITION PARTNERS, LLC
AND
EQUITY MARKETING, INC.
DATED AS OF MARCH 29, 2000
TABLE OF CONTENTS
PAGE
Section 1. Definitions...................................................................1
Section 2. Demand Registration...........................................................3
(a) Requests for Registration by Holders..........................................3
(b) Filing and Effectiveness......................................................4
(c) Priority on Demand Registration...............................................4
(d) Postponement of Demand Registration...........................................5
Section 3. Piggyback Registration........................................................5
(a) Right to Piggyback............................................................5
(b) Priority on Piggyback Registrations...........................................5
Section 4. Restrictions on Sale by Holders...............................................6
Section 5. Registration Procedures.......................................................6
Section 6. Registration Expenses........................................................11
Section 7. Indemnification..............................................................12
(a) Indemnification by the Company...............................................12
(b) Indemnification by Holders...................................................13
(c) Conduct of Indemnification Proceedings.......................................13
(d) Contribution.................................................................13
Section 8. Underwritten Registrations...................................................14
Section 9. Other Agreements.............................................................15
Section 10. Miscellaneous................................................................15
(a) Remedies.....................................................................15
(b) Amendments and Waivers.......................................................15
(c) Notices......................................................................15
(d) Merger or Consolidation of the Company.......................................16
(e) Successors and Assigns.......................................................16
(f) Counterparts.................................................................16
(g) Headings.....................................................................17
(h) Governing Law................................................................17
(i) Severability.................................................................17
(j) Entire Agreement.............................................................17
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of March 29, 2000, by and between Equity Marketing, Inc., a
Delaware corporation (the "COMPANY") , Crown Acquisition Partners, LLC, a
Delaware limited liability company ("Investor"), and each other person who
becomes a Holder hereunder.
RECITALS
WHEREAS, pursuant to a Securities Purchase Agreement dated as of
even date hereof (the "SECURITIES PURCHASE AGREEMENT") between the Company and
the Investor, the Investor is purchasing shares of Series A Senior Cumulative
Participating Convertible Preferred Stock of the Company, par value $0.001 per
share (including any securities into which such preferred stock may be or has
been converted or exchanged in any merger, consolidation or reclassification,
the "SERIES A PREFERRED STOCK") and warrants (the "Warrants") to purchase shares
of Series B Senior Cumulative Participating Convertible Preferred Stock of the
Company, par value $.001 per share (including any securities into which such
preferred stock may be or has been converted or exchanged in any merger,
consolidation or reclassification, the "SERIES B PREFERRED STOCK") and shares of
Series C Senior Cumulative Participating Convertible Preferred Stock of the
Company, par value $.001 per share (including any securities into which such
preferred stock may be or has been converted or exchanged in any merger,
consolidation or reclassification, the "SERIES C PREFERRED STOCK", and, together
with the Series A Preferred Stock, and the Series B Preferred Stock, the
"Preferred Stock"), with each share of Preferred Stock being convertible into
Common Stock of the Company, par value $0.001 per share (the "COMMON STOCK") ;
and
WHEREAS, the Company's shares of Common Stock are registered with
the SEC and quoted on the Nasdaq Stock Market; and
WHEREAS, to induce Investor to execute and deliver the Securities
Purchase Agreement, the Company has agreed to provide to the Holders (as defined
below) certain registration rights under the Securities Act; and
WHEREAS, the execution and delivery of this agreement by the
parties hereto is a condition to the closing of the transactions contemplated by
the Securities Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein and in the Securities Purchase Agreement, and other
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS. For purposes of this Agreement, the following
capitalized terms have the following meanings:
"AFFILIATES:" Any person that directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under common control
with, such first Person.
"COMMON STOCK:" The Common Stock of the Company and any
securities into which such common stock may be or has been converted or
exchanged in any merger, consolidation or reclassification.
"HOLDERS:" The Investor and its Affiliates that from time to time
own Registrable Securities and each of their permitted transferees pursuant to
Section 10(e) who agree to be bound by the provisions of this Agreement in
accordance with said section.
"PERSON:" An individual or a corporation, partnership, a limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
"PREFERRED STOCK:" The Preferred Stock issued pursuant to the
terms of the Securities Purchase Agreement, including the Preferred Stock to be
issued upon the exercise of the Warrants issued pursuant thereto.
"PROSPECTUS:" The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to such
prospectus, including posteffective amendments, and all material incorporated by
reference or deemed to be incorporated by reference in such prospectus.
"REGISTRABLE SECURITIES:" All shares of Common Stock issued or
issuable upon the conversion of the Preferred Stock into Common Stock (including
Preferred Stock acquired upon exercise of the Warrants), excluding shares of
Common Stock that have been disposed of by a Holder pursuant to a Registration
Statement relating to the sale thereof that has become effective under the
Securities Act or pursuant to Rule 144 or Rule 145 under the Securities Act.
Registrable Securities shall also include any shares of the Common Stock or
other securities (or shares of Common Stock underlying such other securities)
that may be received by the Holders (x) as a result of a stock dividend on or
stock split of Registrable Securities or (y) on account of Registrable
Securities in a recapitalization of or other transaction involving the Company.
"REGISTRATION STATEMENT:" Any registration statement of the
Company under the Securities Act that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related Prospectus,
any preliminary prospectus, all amendments and supplements to such registration
statement (including post-effective amendments), all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
"SEC:" The Securities and Exchange Commission.
"SECURITIES ACT:" The Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"UNDERWRITTEN OFFERING:" A distribution, registered pursuant to
the Securities Act, in which securities of the Company are sold to the public
through one or more underwriters.
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Section 2. DEMAND REGISTRATION.
(a) REQUESTS FOR REGISTRATION BY HOLDERS. At any time and from time to
time after the earlier to occur of (i) the Second Closing Date (as defined in
the Securities Purchase Agreement), (ii) the Termination Date (as defined in the
Securities Purchase Agreement), or (iii) September 30, 2000, subject to the
conditions set forth in this Agreement: (i) the Holders will have the right, by
written notice delivered to the Company (a "DEMAND NOTICE"), to require the
Company to register Registrable Securities under and in accordance with the
provisions of the Securities Act (a "DEMAND REGISTRATION"), PROVIDED that the
Holders may not make in the aggregate more than four (4) Demand Registrations
under this Agreement; PROVIDED, FURTHER, that: (i) no such Demand Registration
may be required unless the Holders requesting such Demand Registration provide
to the Company a certificate (the "Authorizing Certificate"), seeking to include
Registrable Securities in such Demand Registration with a market value of at
least $5,000,000 (calculated based on the closing sale price of such securities
on the principal securities exchange where such securities are listed on the
business day immediately preceding the date of the Demand Notice) as of the date
the Demand Notice is given; and (ii) no Demand Notice may be given prior to six
(6) months after the effective date of the immediately preceding Demand
Registration or, if later, the date on which a registration pursuant to this
Section 2 is terminated in its entirety prior to the effective date of the
applicable registration statement. Each Demand Notice shall set forth (A) the
name of the Holder(s) seeking to include Registrable Securities in such Demand
Registration, (B) the number of Registrable Securities held by each such Holder,
and, if different, the number of Registrable Securities such Holder has elected
to have registered, and (C) the intended methods of disposition of the
Registrable Securities. Notwithstanding the foregoing, a good faith decision by
a Holder to withdraw Registrable Securities from registration will not affect
the Company's obligations hereunder even if the amount remaining to be
registered has a market value of less than $5,000,000 (calculated as aforesaid),
provided that: (1) such continuing registration shall constitute a Demand
Registration and (2) the withdrawing Holder reimburses the Company for any
registration and filing fees (including any fees payable to the National
Association of Securities Dealers, Inc. or any successor organization) it has
incurred with respect to the withdrawn Registrable Securities (unless all
Registrable Securities are withdrawn, in which case the withdrawing Holder(s)
shall reimburse the Company for all registration and filing fees and other costs
and expenses described in Section 6 incurred by it in connection with the
registration of such Registrable Securities). Subject to compliance with clause
(2) of the proviso contained in the preceding sentence, a registration that is
terminated in its entirety prior to the effective date of the applicable
registration statement will not constitute a Demand Registration and,
notwithstanding the proviso contained in the preceding sentence, the withdrawing
Holder shall not be obligated to reimburse the Company for any registration or
filing fees or other costs and expenses incurred by the Company with respect to
the withdrawn Registrable Securities if such withdrawal is based upon a material
adverse event or change involving the Company that has occurred or been
disclosed after the date of Holder's Demand Notice (including a decrease of 20%
or more in the trading price of the Company's Common Stock, calculated based on
the difference between the closing price of the Company's Common Stock on the
date of the Demand Notice when compared with the closing price of the Company's
Common Stock on the date that the Holder's request for withdrawal is transmitted
to the Company) or material adverse information relating to the Company that has
been disclosed to Holder after the date of Holder's Demand Notice.
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(b) FILING AND EFFECTIVENESS. The Company will file a Registration
Statement relating to any Demand Registration as promptly as practicable (but in
any event within (i) 60 days if the Company is not eligible to file a
registration statement on Form S-3 or (ii) 30 days if the Company is eligible to
file a registration statement on Form S-3 (unless the Company is required to
file a registration statement on Form S-1 or Form S-2 at the request of the
Holders holding a majority of the Registrable Securities to be included in the
applicable Demand Registration) following the date on which the Demand Notice is
given and will use its reasonable best efforts to cause the same to be declared
effective by the SEC as soon as practicable thereafter. If any Demand
Registration is requested to be effected as a shelf registration pursuant to
Rule 415 under the Securities Act by the Holders demanding such Demand
Registration, the Company will keep the Registration Statement filed in respect
thereof effective for a period of six (6) months from the date on which the SEC
declares such Registration Statement effective (subject to extension pursuant to
Section 5) or such shorter period that will terminate when all Registrable
Securities covered by such Registration Statement have been sold pursuant to
such Registration Statement.
Within ten (10) business days after receipt of such Demand
Notice, the Company will serve written notice thereof (the "NOTICE") to all
other Holders and will, subject to the provisions of Section 2(c), include in
such registration all Registrable Securities with respect to which the Company
receives written requests for inclusion therein within ten (10) business days
after receipt of the Notice by the applicable Holder. Subject to the terms of
Section 2(a), the Holder will be permitted to withdraw in good faith all or part
of the Registrable Securities from a Demand Registration at any time prior to
the effective date of such Demand Registration, in which event the Company will
promptly amend or, if applicable, withdraw the related Registration Statement.
(c) PRIORITY ON DEMAND REGISTRATION. If Registrable Securities are to be
registered pursuant to a Demand Registration, the Company shall provide written
notice to the other Holders and will permit all such Holders who request to be
included in the Demand Registration to include any or all Registrable Securities
held by such Holders in such Demand Registration. Notwithstanding the foregoing,
if the managing underwriter or underwriters of an Underwritten Offering to which
such Demand Registration relates advises the Holders that the total amount of
Registrable Securities that such Holders intend to include in such Demand
Registration is in the aggregate such as to materially and adversely affect the
success of such offering, then the number of Registrable Securities to be
included in such Demand Registration will, if necessary, be reduced and there
will be included in such Underwritten Offering the number of Registrable
Securities that, in the opinion of such managing underwriter or underwriters,
can be sold without materially and adversely affecting the success of such
Underwritten Offering. The Registrable Securities of the Holder or Holders
initiating the Demand Registration shall receive priority in such Underwritten
Offering to the full extent of the Registrable Securities such Holder or Holders
desire to sell (unless these securities would materially and adversely affect
the success of such offering, in which case the number of such Holder's
Registrable Securities included in the offering shall be reduced to the extent
necessary) and the remaining allocation available for sale, if any, shall be
allocated PRO RATA among the other Holders on the basis of the amount of
Registrable Securities requested to be included therein by each such Holder.
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(d) POSTPONEMENT OF DEMAND REGISTRATION. The Company will be entitled to
postpone the filing period of any Demand Registration for a reasonable period of
time not in excess of 90 calendar days if the Company determines, in the good
faith exercise of the business judgment of its Board of Directors, that such
registration and offering could materially interfere with a BONA FIDE business
or financing transaction of the Company or would require disclosure of
information, the premature disclosure of which could materially and adversely
affect the Company; provided, that the Company shall be entitled to exercise its
rights under this Section 2(d) only once in any twelve month period. If the
Company postpones the filing of a Registration Statement, it will promptly
notify the Holders in writing (i) when the events or circumstances permitting
such postponement have ended and (ii) that the decision to postpone was made by
the Board of Directors of the Company in accordance with this Section 2(d).
Section 3. PIGGYBACK REGISTRATION.
(a) RIGHT TO PIGGYBACK. If at any time the Company proposes to file a
Registration Statement, whether or not for sale for the Company's own account,
on a form and in a manner that would also permit registration of Registrable
Securities, the Company shall give to Holders holding Registrable Securities,
written notice of such proposed filing at least thirty (30) days before the
anticipated filing. The notice referred to in the preceding sentence shall offer
Holders the opportunity to register such amount of Registrable Securities as
each Holder may request (a "PIGGYBACK REGISTRATION"). Subject to Section 3(b),
the Company will include in each such Piggyback Registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein. Subject to clause (2) of the proviso at the end of Section
2(a), the Holders will be permitted to withdraw all or part of the Registrable
Securities from a Piggyback Registration at any time prior to the effective date
of such Piggyback Registration.
Notwithstanding the foregoing, the Company will not be obligated
to effect any registration of Registrable Securities under this Section 3 as a
result of the registration of any of its securities solely in connection with
mergers, acquisitions, exchange offers, dividend reinvestment and share purchase
plans offered solely to current holders of the Common Stock, rights offerings or
option or other employee benefit plans.
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. The Company will cause the
managing underwriter or underwriters of a proposed Underwritten Offering to
permit Holders holding Registrable Securities requested to be included in the
registration for such offering to include therein all such Registrable
Securities requested to be so included on the same terms and conditions as any
securities of the Company included therein (other than the indemnification by
the Holders, which will be limited as set forth in Section 7 hereof).
Notwithstanding the foregoing, if the managing underwriter or underwriters of
such Underwritten Offering advises the Holders to the effect that the total
amount of securities that such Holders and the Company propose to include in
such Underwritten Offering is such as to materially and adversely affect the
success of such offering, then the Company will include in such registration (i)
first, and subject to the provisions of Section 2(c), if applicable, the Common
Stock of the Person who has demanded such registration, if any, (ii) second,
100% of the Common Stock the Company proposes to sell, and (iii) third, to the
extent of the number of Registrable Securities requested to be included in such
registration which, with the advice of such managing underwriter, can be sold
without having the adverse effect referred to above, the number of Registrable
Securities
5
which the Holders have requested to be included in such registration,
such amount to be allocated pro rata among all requesting Holders on the basis
of the relative number of Registrable Securities then held by each such Holder.
No registration of Registrable Securities effected under this
Section 3 shall relieve the Company of its obligation to effect a registration
of Registrable Securities pursuant to Section 2 hereof.
Section 4. RESTRICTIONS ON SALE BY HOLDERS. Each Holder agrees, if such
Holder is so requested (pursuant to a timely written notice) by the managing
underwriter or underwriters in an Underwritten Offering, not to effect any
public sale or distribution of any of the Company's securities of such class or
securities convertible or exchangeable into such class (except as part of such
Underwritten Offering), including a sale pursuant to Rule 144 under the
Securities Act, during the 15-calendar day period prior to, and during the
90-calendar day period beginning on, the closing date of such Underwritten
Offering.
Section 5. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations pursuant to Sections 2 and 3, the Company will effect
such registrations to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company will as expeditiously as possible, and in each case
to the extent applicable (it being understood that the obligations of the
Company in clauses (a), (b), (d), (h), (j), (k), (1), (n) and (q) of this
Section 5 will be subject to the first sentence of Section 3(b) and, except as
provided in Section 3(b), the Holders will not have any right to effect an
underwritten public offering under Section 3):
(a) Prepare and file with the SEC a Registration Statement
or Registration Statements on any appropriate form under the
Securities Act available for the sale of the Registrable
Securities by the holders thereof in accordance with the intended
method or methods of distribution thereof, and cause each such
Registration Statement to become effective and remain effective
as provided herein; PROVIDED, HOWEVER, that before filing a
Registration Statement or Prospectus or any amendments or
supplements thereto (including documents that would be
incorporated or deemed to be incorporated therein by reference)
the Company will furnish to the Holders holding Registrable
Securities covered by such Registration Statement, not more than
one counsel chosen by Holders holding a majority of the
Registrable Securities being registered ("SPECIAL COUNSEL") and
the managing underwriters, if any, copies of all such documents
proposed to be filed, which documents will be subject to the
review of such Holders, such Special Counsel and such
underwriters, and the Company will not file any such Registration
Statement or amendment thereto or any Prospectus or any
supplement thereto (excluding such documents that, upon filing,
will be incorporated or deemed to be incorporated by reference
therein) to which the Holders holding a majority of the
Registrable Securities covered by such Registration Statement or
the managing underwriter, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement continuously
effective for the applicable periods specified in Section 2;
cause the related Prospectus to be supplemented by any required
Prospectus
6
supplement, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in
accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement as so
amended or in such Prospectus as so supplemented.
(c) Notify the selling Holders and the managing
underwriters, if any, promptly, and (if requested by any such
person) confirm such notice in writing, (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective,
(ii) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to a
Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if at any
time the representations and warranties of the Company contained
in any agreement contemplated by Section 5(n) (including any
underwriting agreement) cease to be true and correct in any
material, respect, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the
occurrence of any event that makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any
changes in a Registration Statement, Prospectus or any such
document so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and, in
the case of the Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading, and (vii) of the Company's reasonable
determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) Use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement, or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the
earliest possible moment.
(e) If requested by the managing underwriters, if any, or
Holders holding a majority of the Registrable Securities being
registered, (i) promptly incorporate in a Prospectus supplement
or post-effective amendment such information as the managing
underwriters, if any, and such Holders agree should be included
therein as may be required by applicable law and (ii) make all
required filings of such Prospectus supplement or such
post-effective amendment as soon as practicable after the Company
has received notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment; provided,
however, that the Company will not be required
7
to take any actions under this Section 5(e) that are not, in the
opinion of counsel for the Company, in compliance with applicable
law.
(f) Furnish to each selling Holder and each managing
underwriter, if any, without charge, at least one conformed copy
of the Registration Statement and any posteffective amendment
thereto, including financial statements (but excluding schedules,
all documents incorporated or deemed incorporated therein by
reference and all exhibits, unless requested in writing by such
holder or underwriter).
(g) Deliver to each selling Holder and the underwriters,
if any, without charge as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement
thereto as such persons may reasonably request; and, subject to
the last paragraph of this Section 5, the Company hereby consents
to the use of such Prospectus or each amendment or supplement
thereto by each of the selling Holders and the underwriters, if
any, in connection with the offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities,
to register or qualify or cooperate with the selling Holders, the
underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for
offer and sale under the securities or blue sky laws of such
jurisdictions within the United States as any seller or
underwriter reasonably requests in writing; use its reasonable
best efforts to keep such registration or qualification (or
exemption therefrom) effective during the period the applicable
Registration Statement is required to be kept effective and do
any and all other acts or things necessary or advisable to enable
the disposition in each such jurisdiction of the Registrable
Securities covered by the applicable Registration Statement;
PROVIDED, HOWEVER, that the Company will not be required to (i)
qualify to do business in any jurisdiction where it is not then
so qualified or (ii) take any action that would subject it to
taxation or service of process in any such jurisdiction where it
is not then so subject.
(i) Cooperate with the selling Holders and the managing
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to
be sold and enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters, if any, shall request at least two business days
prior to any sale of Registrable Securities to the underwriters.
(j) Use its reasonable best efforts to cause the
Registrable Securities covered by the applicable Registration
Statement to be registered with or approved by such other
governmental agencies or authorities within the United States
except as may be required solely as a consequence of the nature
of any selling Holder's business, in which case the Company will
cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals as may
be necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such
Registrable Securities.
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(k) Upon the occurrence of any event contemplated by
Section 5(c)(vi) or 5(c)(vii), prepare a supplement or
post-effective amendment to each Registration Statement or a
supplement to the related Prospectus or any document incorporated
therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
(l) If requested by Holders holding a majority of the
Registrable Securities covered by such Registration Statement or
the managing underwriters, if any, use its reasonable best
efforts to cause all Registrable Securities covered by such
Registration Statement to be (i) listed on each securities
exchange, if any, on which securities issued by the Company of
the same class are then listed or, if no such securities issued
by the Company are then so listed, on the New York Stock Exchange
or another national securities exchange if the securities qualify
to be so listed or (ii) authorized to be quoted on the National
Association of Securities Dealers Automated Quotation System
("NASDAQ") or the National Market System of Nasdaq, if the
securities qualify to be so quoted.
(m) As needed, (i) engage an appropriate transfer agent and
provide the transfer agent with printed certificates for the
Registrable Securities in a form eligible for deposit with The
Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Securities.
(n) Enter into such customary agreements (including, in the
event of an Underwritten Offering, an underwriting agreement in
form, scope and substance as is customary in underwritten
offerings) and take all such other commercially reasonable and
customary actions in connection therewith (including those
reasonably requested by the Holders holding a majority of the
Registrable Securities being sold or, in the event of an
Underwritten offering, those reasonably requested by the managing
underwriters) in order to facilitate the disposition of such
Registrable Securities and in such connection, but only where an
underwriting agreement is entered into in connection with an
underwritten registration, (i) make such representations and
warranties to the underwriters with respect to the businesses of
the Company and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed
incorporated by reference therein, if any, in each case, in form,
substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if
and when requested; (ii) obtain opinions of counsel to the
Company and updates thereof, which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, addressed to each of the
underwriters covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may
be reasonably requested by such underwriters; (iii) use its
reasonable best efforts to obtain "comfort" letters and updates
thereof from the independent certified public accountants of the
Company (and, if necessary, any other certified public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and
financial data is, or is
9
required to be, included in the Registration Statement),
addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily
covered in "comfort" letters in connection with underwritten
offerings; and (iv) deliver such documents and certificates as
may be reasonably requested by the managing underwriters, if any,
to evidence the continued validity of the representations and
warranties of the Company and its subsidiaries made pursuant to
clause (i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement entered into
by the Company. The foregoing actions will be taken in connection
with each closing under such underwriting agreement as and to the
extent required thereunder.
(o) Make available for reasonable inspection during normal
business hours by a representative of the Holders holding
Registrable Securities being sold, any underwriter participating
in any disposition of Registrable Securities, and any attorney or
accountant retained by such selling Holders or underwriter, all
financial and other records, pertinent corporate documents and
properties of the company and its subsidiaries, and cause the
officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by
any such representative, underwriter, attorney or accountant in
connection with such Registration statement; PROVIDED, HOWEVER,
that any records, information or documents that are designated by
the Company in writing as confidential at the time of delivery of
such records, information or documents will be kept confidential
by such persons unless such records, information or documents are
in the public domain or otherwise publicly available, (ii)
disclosure of such records, information or documents is required
by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, or (iii) disclosure of such
records, information or documents, in the reasonable opinion of
counsel to such person, is otherwise required by law (including,
without limitation, pursuant to the requirements of the
Securities Act).
(p) Comply with all applicable rules and regulations of the
SEC and make generally available to its security holders earning
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 calendar
days after the end of any 12-month period (or 90 calendar days
after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm
commitment or reasonable best efforts underwritten offering, or
(ii) if not sold to underwriters in such an offering, commencing
on the first day of the first fiscal quarter of the Company,
after the effective-date of a Registration Statement, which
statements shall cover such 12-month period.
(q) In connection with any underwritten offering, cause
appropriate members of management to cooperate and participate on
a reasonable basis in the underwriters, "road show" conferences
related to such offering.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such Registrable Securities as the
Company may, from time to time, reasonably
10
request in writing, and the Company may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to furnish such
information within a reasonable time after receiving such request.
Each Holder will be deemed to have agreed by virtue of its acquisition
of Registrable Securities that, upon receipt of any notice from the Company of
the occurrence of any event of the kind described in Section 5(c)(ii),
5(c)(iii), 5(c)(v), 5(c)(vi) or 5 (c) (vii) ("SUSPENSION NOTICE") , such Holder
will forthwith discontinue disposition of such Registrable Securities covered by
such Registration Statement or Prospectus (a "BLACK-OUT") until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k), or until it is advised in writing (the "ADVICE") by the Company
that the use of the applicable Prospectus may be resumed, and such Holder has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such Prospectus. Except as
expressly provided herein, there shall be no limitation with regard to the
number of Suspension Notices that the Company is entitled to give hereunder;
PROVIDED, HOWEVER, that in no event shall the aggregate number of days the
Holders are subject to Black-Out during any period of 12 consecutive months
exceed 180 days.
Section 6. REGISTRATION EXPENSES. Subject to the terms of Section 2(a), all
fees and expenses incident to the performance of or compliance with this
Agreement by the Company will be borne by the Company whether or not any of the
Registration Statements become effective. Such fees and expenses will include,
without limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses for compliance with securities or "blue sky" laws)
, (ii) printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company and of printing a reasonable number of prospectuses if
the printing of such prospectuses is requested by the Holders holding a majority
of the Registrable Securities included in any Registration Statement), (iii)
messenger, telephone and delivery expenses incurred by the Company, (iv) fees
and disbursements of counsel for the Company incurred by the Company, (v) fees
and disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) (including the expenses of any special audit and "comfort"
letter required by or incident to such performance) incurred by the Company,
(vi) Securities Act liability insurance, if any, and (vii) fees and expenses of
Special Counsel retained by the Holders in connection with the registration and
sale of their Registrable Securities (which counsel will be selected by the
Holders of a majority of the Registrable Securities being sold). In addition,
the Company will pay internal expenses (including without limitation all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, the fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange on which securities of the same class issued by the
Company are then listed and the fees and expenses of any person, including
special experts, retained by the Company. In no event, however, will the Company
be responsible for any underwriting discount or selling commission with respect
to any sale of Registrable Securities pursuant to this Agreement, and the
Holders shall be responsible on a pro rata basis for any taxes of any kind
(including, without limitation, transfer taxes) with respect to any disposition,
sale or transfer of Registrable Securities.
11
Section 7. Indemnification.
(a) INDEMNIFICATION BY THE COMPANY. The Company will, without
limitation as to time, indemnify and hold harmless, to the fullest extent
permitted by law, each Holder holding Registrable Securities registered pursuant
to this Agreement, the officers, directors and agents and employees of each of
them, each person who controls such a Holder (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) and the officers,
directors, agents and employees of any such controlling person, from and against
all losses, claims, damages, liabilities, costs (including without limitation
the costs of investigation and attorneys' fees and expenses) (collectively,
"Losses") incurred, arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or form of Prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar and to
the extent as the same are based upon information furnished in writing to the
Company by such Holder for use therein; PROVIDED, HOWEVER, that the Company will
not be liable to any Holder to the extent that any such Losses arise out of or
are based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Registration Statement, Prospectus or preliminary
prospectus if either (A) (i) such Holder failed to send or deliver a copy of the
Prospectus with or prior to the delivery of written confirmation of the sale by
such Holder of a Registrable Security to the person asserting the claim from
which such Losses arise and (ii) the Prospectus would have corrected such untrue
statement or alleged untrue statement or such omission or alleged omission; or
(B) such untrue statement or alleged untrue statement, omission or alleged
omission is corrected in an amendment or supplement to the Prospectus previously
furnished by or on behalf of the Company with copies of the Prospectus, and such
Holder thereafter fails to deliver such Prospectus as so amended or supplemented
prior to or concurrently with the sale of a Registrable Security to the person
asserting the claim from which such Losses arise.
(b) INDEMNIFICATION BY HOLDERS. In connection with any Registration
Statement in which a Holder is participating, such Holder will furnish to the
Company in writing such information as the Company reasonably requests for use
in connection with any Registration Statement, Prospectus or preliminary
prospectus and will indemnify, to the fullest extent permitted by law, the
Company, its directors and officers, agents and employees, each person who
controls the Company (within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling persons, from and against all Losses arising out
of or based upon any untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus or arising out of
or based upon any omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement or omission is contained in any
information so furnished in writing by such Holder to the Company for use in
such Registration Statement, Prospectus or preliminary prospectus and was relied
upon by the Company in the preparation of such Registration Statement,
Prospectus or preliminary prospectus. In no event will the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the
proceeds (net of payment of all expenses) received by such Holder upon the sale
of the Registrable Securities giving rise to such indemnification obligation.
12
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any person shall become
entitled to indemnity hereunder (an "INDEMNIFIED PARTY") , such indemnified
party shall give prompt notice to the party from which such indemnity is sought
(the "INDEMNIFYING PARTY") of any claim or of the commencement of any action or
proceeding with respect to which such indemnified party seeks indemnification or
contribution pursuant hereto; PROVIDED, HOWEVER, that the failure to so notify
the indemnifying party will not relieve the indemnifying party from any
obligation or liability except to the extent that the indemnifying party has
been prejudiced materially by such failure. All reasonable fees and expenses
(including any reasonable fees and expenses incurred in connection with
investigating or preparing to defend such action or proceeding) will be paid to
the indemnified party (provided appropriate documentation for such expenses is
also submitted with such notice), as incurred, within five calendar days of
written notice thereof to the indemnifying party (regardless of whether it is
ultimately determined that an indemnified party is not entitled to
indemnification hereunder). The indemnifying party will not consent to entry of
any judgment or enter into any settlement or otherwise seek to terminate any
action or proceeding in which any indemnified party is or could be a party and
as to which indemnification or contribution could be sought by such indemnified
party under this Section 7, unless such judgment, settlement or other
termination includes as an unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release, in form and substance
reasonably satisfactory to the indemnified party, from all liability in respect
of such claim or litigation for which such indemnified party would be entitled
to indemnification hereunder.
(d) CONTRIBUTION. If the indemnification provided for in this Section
7 is unavailable to an indemnified party under Section 7(a) or 7(b) in respect
of any Losses or is insufficient to hold such indemnified party harmless, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, will, severally but not jointly, contribute to the amount paid or payable
by such indemnified party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or
indemnifying parties, on the one hand, and such indemnified party, on the other
hand, in connection with the actions, statements or omissions that resulted in
such Losses as well as any other relevant equitable considerations. The relative
fault of such indemnifying party or indemnifying parties, on the one hand, and
such indemnified party, on the other hand, will be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or related to information supplied by,
such indemnifying party or indemnified party, and the parties, relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses will be deemed to include any legal or other fees or expenses
incurred by such party in connection with any action or proceeding.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this section 7(d) were determined by PRO RATA
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7(d), an indemnifying party that
is a selling Holder will not be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such indemnifying party and distributed to the public were offered to the public
exceeds the amount of
13
any damages that such indemnifying party has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations
of the Company hereunder will be in addition to any liability the Company may
otherwise have hereunder or otherwise. The provisions of this Section 7 will
survive so long as Registrable Securities remain outstanding, notwithstanding
any permitted transfer of the Registrable Securities by any Holder thereof or
any termination of this Agreement.
Section 8. UNDERWRITTEN REGISTRATIONS. If any of the Registrable
Securities included in any Demand Registration are to be sold in an Underwritten
Offering, the Holders holding a majority of the Registrable Securities included
in the Demand Notice may select an investment banker or investment bankers and
manager or managers to manage the Underwritten Offering, in each case subject to
the reasonable approval of the Company. If any Piggyback Registration is an
Underwritten Offering, the Company will have the right to select the investment
banker or investment bankers and manager or managers to administer the offering.
The Company agrees that, in connection with any Underwritten Offering hereunder,
it shall offer customary indemnification to the participating underwriters and
each Holder agrees that, in connection with any Underwritten Offering hereunder
in which such Holder is selling Registrable Securities, such Holder will offer
indemnification to the participating underwriters to the same extent that such
Holder is required to indemnify the Company under Section 7(b).
Section 9. OTHER AGREEMENTS. The Company shall not enter into any
agreement or instrument which would conflict with or result in a material breach
or violation of any of the terms or provisions of this Agreement. In addition,
the Company shall not enter into any agreement or instrument with any Person
which grants such Person demand registration rights similar to those in Section
2(a) which preclude the Holders of Registrable Securities from exercising their
rights pursuant to Section 2(a) hereof in connection with any registration
statement filed pursuant to which such Person will sell securities of the
Company.
Section 10. MISCELLANEOUS.
(a) REMEDIES. In the event of a breach by a party of its obligations
under this Agreement, each other party, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. Each party
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any provision of this Agreement and
hereby further agrees that, in the event of any action for specific performance
in respect of such breach, it will waive the defense that a remedy at law would
be adequate.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented without the prior written consent of the
Company, and Holders holding in excess of 50% of the Registrable Securities in
respect of which Registrable Securities are issuable.
14
(c) NOTICES. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the Company at the following
address and to the initial Holder at the following address (or at such other
address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt thereof):
If to the Company: Equity Marketing, Inc.
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
If to the Investor: Crown Acquisition Partners, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with copies to: Xxxxxx & Xxxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: W. Xxxx Xxxxxx
Facsimile: (000) 000-0000
(d) MERGER OR CONSOLIDATION OF THE COMPANY. If the Company is a party
to any merger or consolidation pursuant to which the Preferred Stock or
Registrable Securities are converted into or exchanged for securities or the
right to receive securities of any other person ("Conversion Securities") , the
issuer of such Conversion Securities shall assume (in a writing delivered to all
Holders) all obligations of the Company hereunder. The Company will not effect
any merger or consolidation described in the immediately preceding sentence
unless the issuer of the Conversion Securities complies with this Section 10(d).
(e) SUCCESSORS AND ASSIGNS. Any transferee of all or a portion of the
Preferred Stock, Warrants or Registrable Securities (i) that is an Affiliate of
a Holder (without regard to the amount of Preferred Stock, Warrants or
Registrable Securities acquired by such Affiliate) or (ii) that acquires
Preferred Stock, Warrants or Registrable Securities with a market value of at
least $2.5 million (calculated on an as exercised and as converted basis based
on the closing sale price of the Common Stock as of the date of the transfer)
shall become a Holder hereunder to the extent it agrees in writing to be bound
by all of the provisions applicable hereunder to the
15
transferring Holder (such acknowledgment being evidenced by execution of a
Counterpart and Acknowledgment substantially in the form of EXHIBIT A). Subject
to the requirements of this Section 10(e), this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts (which may be by
facsimile), each of which when so executed will be deemed to be an original and
all of which taken together will constitute one and the same instrument.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and will not limit or otherwise affect the meaning.
(h) GOVERNING LAW. This agreement will be governed by and construed in
accordance with the laws of the State of Delaware, as applied to contracts made
and performed within the State of Delaware, without regard to principles of
conflict of laws.
(i) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein will remain in full force and effect and will in
no way be affected, impaired or invalidated, and the parties hereto will use
their reasonable best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
(k) TERMINATION. This Agreement and the rights provided to the Holders
as contained herein shall terminate on the earlier of (a) March 29, 2010 (with
respect to all Holders), or (b) at such time that a Holder may sell all of its
Registrable Securities pursuant to Rule 144 contained in the Securities Act
without any volume limitation (with respect to such Holder).
(SIGNATURE PAGE FOLLOWS)
16
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
EQUITY MARKETING, INC.
By: /s/ XXXXXX X. XXXX
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Chairman of the Board
and Chief Executive
Officer
CROWN ACQUISITION PARTNERS, LLC
By: /s/ XXXXXXX X. XXXXXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Manager
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
COUNTERPART AND ACKNOWLEDGMENT
TO: The Company
RE: The Registration Rights Agreement (the
"Agreement") dated as of __________, 2000, by
and among the Company and the Holders (as
defined in the Agreement)
The undersigned hereby agrees to be bound by the terms of the
Agreement as a party to the Agreement, and shall be entitled to all benefits of
the Holders (as defined in the Agreement) and shall be subject to all
obligations and restrictions of the Holders pursuant to the Agreement, as fully
and effectively as though the undersigned had executed a counterpart of the
Agreement together with the other parties to the Agreement. The undersigned
hereby acknowledges having received and reviewed a copy of the Agreement.
DATED this ______ day of _______________, ________
By:
Title:
Number of
Shares of
Registrable Securities:
18
