Joint Filing and Consent Agreement
This Joint Filing and Consent Agreement (this "Agreement") is made and
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entered into as of the 30th day of November, 2001 by and among Xxxxx Xxxxx, X.X.
Xxxxxxx, X.X. Xxxxxxx, Xxxxx Xxxxxxxx, Xxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxx Xxxxxx
as Trustee for the Xxxx Xxxxx Xxxxx Xxxxxx Endowment and Xxxx Xxxxx. The
parties to this Agreement are each referred to as a "Shareholder" and
collectively referred to as the "Shareholders".
RECITALS
This Agreement is entered into with reference to the following facts,
objectives, and definitions:
A. Each of the Shareholders is a holder, or has voting power with respect
to, shares of common stock, $.0001 par value ("Common Stock"), of Digital
Courier Technologies, Inc. (the "Company"). The shares of Common Stock that
each Shareholder owns or may come to own during the term of this Agreement, or
over which each Shareholder has voting control or comes to have voting power
during the term of this Agreement, are hereinafter referred to as the "Shares."
B. The Shareholders desire to act collectively in order to remove the
existing board of directors of the Company and replace them with three nominees
designated by the Shareholders. In order to replace the board of directors, the
Shareholders will execute written consents, and seek written consents from other
shareholders, that remove and replace the current board of directors of the
Company.
C. The Shareholders have received and reviewed a copy of the Preliminary
Consent Statement on Schedule 14A (draft dated 11/30/2001) (the "Consent
Statement") with respect to their replacement of the current directors and a
copy of the form of Majority Consent of Shareholders (the "Consent") attached to
the Consent Statement.
D. The Shareholders are entering into this Agreement in order to establish
a means for coordinating filings with the Securities and Exchange Commission
(the "SEC") and in order to set forth their agreement with respect to the
Consent Statement, the Consent and the effort to replace the board of directors
of the Company.
AGREEMENT
NOW, THEREFORE, in consideration of this Agreement and of the covenants and
conditions contained in this Agreement, the Shareholders represent, warrant,
covenant and agree as follows:
1. Joint Filing Agreement. As of result of the covenants set forth in
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this Agreement, each of the Shareholders may be required, from time to time, to
file or amend statements ("Section 13 Reports") pursuant to Section 13(d) or
13(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
with the SEC. The Shareholders may be eligible, from time to time, to file
Section 13 Reports jointly pursuant to Rule 13d-1(f) under the Exchange Act.
Each of the Shareholders agrees that any Section 13 Report filed with the SEC
that is executed by such Shareholder or a duly authorized attorney-in-fact for
such Shareholder shall be deemed to be filed on behalf of such Shareholder.
2. Power of Attorney. Attached as hereto as Exhibit A is a Limited Power
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of Attorney
appointing Xxxxx Xxxxx as attorney-in-fact with respect to Section 13 Reports
filed pursuant to and consistent with this Agreement. The Shareholders may, but
are not required to, execute such Limited Power of Attorney in order to
streamline the process of signing Section 13 Reports and any amendments thereto.
3. Agreement to Vote the Shares. Each Shareholder shall (a) execute and
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deliver to the Company (or Xxxxx Xxxxx for delivery for the Company), and shall
at no time revoke, the Consent and any additional written consents of
shareholders proposed by a majority of the Shareholders and substantially in the
form of the Consent, (b) vote all of the Shares over which such Shareholder has
voting power in favor of all resolutions, proposals or other transactions
proposed by a majority of the Shareholders that are substantially identical to
the resolutions included in the Consent or that would tend to facilitate
approval of the Consent, and (c) vote of the Shares over which the Shareholder
has voting power against any resolution, proposal or transaction agreement that
would impede, interfere with, delay, postpone, or attempt to discourage the
Consent or any resolution, proposal or transaction substantially identical to
the Consent.
4. Grant of Irrevocable Proxy. Each Shareholder hereby irrevocably
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appoints Xxxxx Xxxxx or any designee of Xxxxx Xxxxx as the lawful agent,
attorney, and proxy of such Shareholder, during the term of this Agreement, to
(a) vote the Shares over which such Shareholder has voting power in favor of the
Consent, (b) vote all of the Shares over which such Shareholder has voting power
in favor of resolutions, proposals or other transactions proposed by a majority
of the Shareholders that are substantially identical to the resolutions included
in the Consent or that would, in the judgment of Xx. Xxxxx or his designee, tend
to facilitate approval of the Consent, and (c) vote the Shares over which the
Shareholder has voting power against any action or agreement that would impede,
interfere with, delay, postpone, or attempt to discourage the Consent or any
resolution, proposal or transaction substantially identical to the Consent.
5. Representations and Warranties of the Shareholders. Each of the
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Shareholders represents, warrants and covenants to the other Shareholders that
(i) the Shareholder has reviewed the Consent Statement and that each statement
in the Consent Statement relating to the Shareholder is true, correct, complete
and does not omit any information necessary to make it not misleading, (ii) the
Shareholder has the unrestricted right to vote the Shares listed as being
beneficially owned by such Shareholder in the section of the Consent Statement
entitled "Security Ownership of Proponent Group, Nominees, Management and
Certain Stockholders," (iii) the Shareholder has full power and authority to
make, enter into, and carry out the terms of this Agreement; (iv) the execution,
delivery, and performance of this Agreement by the Shareholder will not violate
any other agreement to which the Shareholder (or the underlying owner of the
Shares) is a party, including, without limitation, any voting agreement,
shareholder agreement, or voting trust; (v) when executed by the Shareholder,
this Agreement will constitute a legal, valid, and binding obligation of the
Shareholder, enforceable against the Shareholder in accordance with its terms,
(vi) the Shareholder has taken and shall take, or decline to take, all such
actions as are necessary to cause each of subsection (ii), (iii), (iv) and (v)
to be true and correct at all times during the term of this Agreement.
6. Term. The term of this Agreement shall commence on the date this
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Agreement is signed by all of the Shareholders and continue until the earliest
of (a) the date that the Consent becomes effective, (b) June 30, 2002 and (c)
the date all of the Shareholders agree in writing to terminate this Agreement.
After the end of the term, each of the Shareholders shall sign such amendments
to any Section 13 Reports on as are necessary in order to reflect the
termination of the intent of the Shareholders to act as a group with respect to
the Shares.
7. Further Assurances. Each Shareholder shall do and perform or cause to
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be done and
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performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments, or documents as a majority of
the Shareholders shall reasonably request from time to time in order to carry
out the intent and purposes of this Agreement. No Shareholder shall voluntarily
undertake any course of action inconsistent with satisfaction of the
requirements applicable to such Shareholder as set forth in this Agreement.
8. Injunctive Relief. The Shareholders intend and agree that the
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provisions of this Agreement shall be specifically enforceable against all
of the Shareholders parties hereto. The Shareholders acknowledge that it is
impossible to measure in money the damages that will accrue to one or more of
them by reason of the failure of any of them to abide by the provisions of this
Agreement, that every such provision is material, and that in the event of any
such failure, the other Shareholders will not have an adequate remedy at law or
damages. Therefore, if any Shareholder shall institute any action or proceeding
to enforce the provisions of this Agreement, in addition to any other relief,
the court in such action or proceeding may grant injunctive relief against any
Shareholder found to be in breach or violation of this Agreement, as well as or
in addition to any remedies at law or damages, and such Shareholder waives the
claim or defense in any such action or proceeding that the Shareholder bringing
such action has an adequate remedy at law, and such Shareholder shall not argue
or assert in any such action or proceeding the claim or defense that such remedy
at law exists.
9. Court Modification. Should any portion of this Agreement be declared
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by a court of competent jurisdiction to be unreasonable, unenforceable, or void
for any reason, the involved court shall modify the applicable provision(s) of
this Agreement so as to be reasonable or as is otherwise necessary to make this
Agreement enforceable and valid and to protect the interests of the Shareholders
intended to be protected by this Agreement to the maximum extent possible.
10. Other Agreements. This Agreement may be executed by facsimile
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transmission and in one or more counterparts, each of which shall be deemed to
be an original, but all of which taken together shall constitute one and the
same Agreement. This Agreement supersedes all prior agreements or
understandings of the Shareholders on the subject matter of this Agreement. This
Agreement (i) shall not be modified by any oral agreement, either express or
implied, and all amendments or modifications of this Agreement shall be in
writing and be signed by all of the Shareholders, and (ii) shall be binding on
and shall inure to the benefit of the Shareholders and their respective heirs,
legal representatives, successors, and permitted assigns, if any. None of the
rights, duties, or obligations under this Agreement of any Shareholder may be
assigned, delegated, or transferred expressly, by operation of law, merger, or
otherwise, without the prior written consent of the other Shareholder. Should
any Shareholder be in default under or breach of any of the covenants or
agreements contained in this Agreement, or in the event a dispute shall arise as
to the meaning of any term of this Agreement, the defaulting or nonprevailing
Shareholder shall pay all costs and expenses, including reasonable attorneys'
fees, of the other Shareholder(s) that may arise or accrue from enforcing this
Agreement, securing an interpretation of any provision of this Agreement, or in
pursuing any remedy provided by law whether such remedy is pursued or
interpretation is sought by the filing of a lawsuit, an appeal, or otherwise.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Delaware, which internal laws exclude any
provision or interpretation of such laws that would call for, or permit, the
application of the laws of any other state or jurisdiction, and any dispute
arising therefrom and the remedies available shall be determined solely in
accordance with such internal laws. The Recitals are by this reference
incorporated into and made a part of this Agreement.
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IN WITNESS WHEREOF, each of the Shareholders has executed this Joint Filing
and Consent Agreement on or as of the date of this Agreement.
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Xxxxx Xxxxx, an individual
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X.X. Xxxxxxx, an individual
_________________________________
X.X. Xxxxxxx, an individual
_________________________________
Xxxxx Xxxxxxxx, an individual
_________________________________
Xxx Xxxxx, an individual
_________________________________
Xxxxxxx Xxxxx, an individual
_________________________________
Xxxxxxx Xxxxxx, as Trustee for the Xxxx
Xxxxx Xxxxx Xxxxxx Endowment
_________________________________
Xxxx Xxxxx, an individual
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Exhibit A
To
Joint Filing and Consent Agreement
Power of Attorney
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[see attached]
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Limited Power of Attorney
The undersigned hereby constitutes and appoints Xxxxx Xxxxx as his true and
lawful attorney-in-fact and agent, with full power of substitution, to sign on
his behalf individually and in the capacity stated below and to perform any acts
necessary to be done in order to (a) prepare, execute on behalf of the
undersigned and file with the Securities and Exchange Commission one or more
statements ("Section 13 Reports") pursuant to Section 13(d) or 13(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), with respect
to the shares of common stock of Digital Courier International, Inc.
beneficially owned by the undersigned and any group of which the undersigned is
a part, and (b) to prepare, execute on behalf of the undersigned and file all
amendments to any such Section 13 Reports (including an amendment at the end of
the term of the Joint Filing and Consent Agreement dated November 30, 2001
reflecting the termination of the intent of the parties to such agreement to act
as a group), and any and all instruments or documents filed as part of or in
connection with any such Section 13 Report or any amendments thereto, and the
undersigned does hereby ratify and confirm all that said attorney-in-fact and
agent, or his substitutes, shall do or cause to be done by virtue hereof.
Execution of this Power of Attorney shall constitute a revocation of any and all
previously executed limited powers of attorney of the undersigned appointing
attorneys-in-fact to act on behalf of the undersigned with respect to the
foregoing. This Limited Power of Attorney shall be effective as of the date set
forth below and shall be valid for the period from the date hereof through the
termination date of that certain Joint Filing and Consent Agreement dated
November 30, 2001 to which the undersigned is a party.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
___th day of November, 2001:
_______________________________
[print name of undersigned]
________________________________
[signature of undersigned*]
* If this Power of Attorney relates solely to the undersigned in his
capacity as an officer, partner, trustee or similarly authorized
representative of an entity, please clarify in this line "as __________ of
__________"
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