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EXHIBIT 10.1
VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into the 31 day
of October, 1998 (the "Effective Date") by and between Digital Asset Management,
Inc., a Delaware corporation (the "Company"), the parties listed on Exhibit A
attached hereto (the "Investors") and the parties listed on Exhibit B attached
hereto (the "Stockholders"). The Investors and the Stockholders are sometimes
hereinafter collectively referred to as the "Holders."
RECITALS:
WHEREAS, the Investors are purchasing from the Company shares of its
Preferred Stock, par value $.01 per share ("Preferred Stock"), pursuant to a
Stock Purchase Agreement dated of even date herewith between the Company and the
Investors (the "Purchase Agreement");
WHEREAS, each Stockholder currently owns that number of shares of the
Company's common stock, par value $.01 per share ("Common Stock"), set forth
beside the Stockholder's name on Exhibit B attached hereto; and
WHEREAS, as an inducement to the Investors to purchase the Preferred
Stock pursuant to the Purchase Agreement, the Investors, the Stockholders and
the Company desire to enter into this Agreement to set forth their agreements
and understandings with respect to how the shares of the Company's capital stock
("Capital Stock") held by them will be voted on certain matters.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants made herein, the parties hereby agree as follows:
1. SIZE OF BOARD OF DIRECTORS. During the term of this Agreement, each
Holder agrees to vote all shares of Capital Stock now or hereafter directly or
indirectly owned (of record or beneficially) by such Holder to maintain a Board
of Directors of the Company (the "Board"), with an authorized number of members
of the Board being five (5) persons, and to oppose any effort by any party to
change the number of members of the Board.
2. ELECTION OF BOARD OF DIRECTORS.
(a) VOTING AND BOARD COMPOSITION. During the term of this
Agreement, each Holder agrees to vote all shares of Capital Stock now or
hereafter directly or indirectly owned (of record or beneficially) by such
Holder, in such a manner as may be necessary to elect (and maintain in office)
as members of the Board, the following individuals:
(i) One (1) individual designated from time to time
in writing delivered to the Company and signed by Stockholders who at the time
in question hold shares of outstanding Common Stock representing at least a
majority of the voting power of all outstanding shares of Common Stock then held
by all Stockholders (the "Stockholders' Designee"); and
(ii) Three (3) individuals (the "Acxiom Designees")
designated from
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time to time in writing delivered to the Company and signed by Acxiom
Corporation ("Acxiom"); and
(iii) One (1) individual (the "PC411 Designee")
designated from time to time in writing delivered to the Company and signed by
PC411, Inc. ("PC411").
(b) The initial Stockholders' Designee shall be Xxxx Xxxxx;
the initial Acxiom Designees shall be Xxxx Xxxxxxxx, Art Xxxxxx and Xxxx
Xxxxxxxx; and the initial PC411 Designee shall be X. Xxxxxx Xxxxxxxx III
(collectively "Board Designee(s)"). Each of the Stockholders' Designee, the
Acxiom Designees and the PC411 Designee are hereinfter referred to as "Designee"
and the party entitled to designate a designee to the Board is hereinafter
referred to as a "Designator."
3. CHANGES IN BOARD DESIGNEES. From time to time during the term of
this Agreement, a Designator may in its sole discretion:
(a) remove from the Board any Board Designee designated by
such Designator; and
(b) designate a new Board Designee for election to the Board
to replace a prior Board Designee who has been removed pursuant to Section 3(a)
or to fill a vacancy occasioned by the resignation or death of such Designator's
Board Designee; provided however, such removal and/or designation of a Board
Designee shall be made in writing signed by the relevant Designator, in which
case such election to remove a Board Designee and/or elect a new Board Designee
will be binding on such Designator. In the event of such a removal and/or
designation of a Board Designee, the Holders shall vote their shares of Capital
Stock as provided in Section 2 to cause:
(i) the removal from the Board of the Board Designee
or Designees so designated for removal by the appropriate Designator; and
(ii) the election to the Board of any new Board
Designee or Designees so designated for election to the Board by the appropriate
Designator.
4. NOTICE. The Company shall promptly give each of the Holders written
notice of any change in the Board and of any proposal by a Designator to remove
or elect a new Board Designee.
5. FURTHER ASSURANCES.
(a) Each of the Holders agrees not to vote any shares of the
Capital Stock, or take any other actions that would in any manner defeat,
impair, be inconsistent with or adversely affect the stated intentions of any of
the parties under Sections 1, 2 or 3 of this Agreement.
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(b) In addition to any vote otherwise required by law or the
Company's Certificate of Incorporation or Bylaws, (A) the affirmative vote of
both the Acxiom Designees and the PC411 Designee shall be required to take or
agree to take any of the following actions: (i) any change in the primary focus
of the Company's Business Plan, attached hereto as Exhibit C; (ii) a merger,
sale or recapitalization of the Company; or (iii) any amendment to the
Certificate of Incorporation or Bylaws of the Company which would materially
adversely affect the rights of either of the Investors; and (B) the affirmative
vote of the Acxiom Designees shall be required to borrow money pursuant to the
Bridge Loan and Security Agreement or the Acxiom Loan and Security Agreement,
respectively, executed of even date herewith.
6. TRANSFEREES; LEGENDS ON CERTIFICATES.
(a) EFFECT ON TRANSFEREES. Each and every transferee or
assignee of any shares of Capital Stock from any Holder shall be bound by, and
subject to the terms and conditions of this Agreement that are applicable to the
transferor or assignor of such shares to the transferee or assignee, and the
Company shall require that the transferee agrees in writing to be bound by, and
subject to, all terms and conditions of this Agreement as a condition precedent
to the transfer of any shares of Capital Stock subject to this Agreement. For
purposes of this Agreement, any transferee or assignee of an Investor shall,
upon the effective date of such transfer or assignment be deemed an Investor
solely with respect to the shares so transferred or assigned, and any transferee
or assignee of a Stockholder shall, upon the effective date of such transfer, be
deemed a Stockholder solely with respect to the shares so transferred or
assigned.
(b) LEGEND. All Company share certificates now or hereafter
held by the Holders that represent shares of Capital Stock of the Company
subject to this Agreement shall be stamped or otherwise imprinted with the
following legend:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER
APPLICABLE STATE SECURITIES LAWS IN RELIANCE UPON THE REPRESENTATION OF
THE REGISTERED HOLDER HEREOF THAT THESE SECURITIES HAVE BEEN PURCHASED
WITH INVESTMENT INTENT AND NOT FOR RESALE OR WITH A VIEW TO
DISTRIBUTION. THE SECURITIES REPRESENTED HEREBY MAY NOT BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
REGISTRATION OR THE AVAILABILITY OF EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED AND APPLICABLE STATE SECURITIES
LAWS. IN ADDITION, THIS CERTIFICATE IS TRANSFERABLE ONLY UPON
COMPLIANCE WITH THE PROVISIONS OF THE SHAREHOLDERS AGREEMENT AND THE
VOTING AGREEMENT BY AND AMONG THE COMPANY AND ALL ITS STOCKHOLDERS,
COPIES OF WHICH ARE ON FILE AT THE OFFICE OF THE COMPANY. ANY TRANSFER
CONTRARY TO THE ABOVE INSTRUCTIONS IS VOID AB INITIO."
7. ENFORCEMENT OF AGREEMENT. Each of the Holders agrees that any breach
by any of them of this Agreement shall cause the other Holders irreparable harm
which may not be adequately compensated by money damages. Accordingly, in the
event of a breach or a threatened breach by a Holder of any provision of this
Agreement, the Company and each other Holder shall be entitled to the remedies
of specific performance, injunction or other preliminary or equitable relief,
including the right to compel any such breaching Holder, as appropriate, to vote
such Holder's shares of Capital Stock in accordance with the provisions of this
Agreement, in addition to such other rights or remedies as may be available to
the Company or any Holder for any such breach or threatened breach including,
but not limited to, the recovery of money damages.
8. TERM. This Agreement shall commence on the Effective Date and shall
terminate upon the first of the following to occur:
(a) Execution by each Investor and by the Stockholders who
hold a majority of the shares of Capital Stock then held by all of the
Stockholders of a written agreement to terminate this Agreement;
(b) The consummation of the first sale of securities of the
Company to the public pursuant to an effective registration statement filed by
the Company under the Securities Act of 1933, as amended;
(c) The first date on which the outstanding Capital Stock
owned by the Investors (calculating all shares of Preferred Stock then
outstanding as if such shares had been converted into Common Stock) constitutes
less than thirty percent (30%) in the aggregate of the
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number of shares of the Common Stock that would be outstanding shares if the
Preferred Stock were then converted into shares of the Common Stock.
Notwithstanding the foregoing, any Investor owning Capital Stock representing at
least fifteen percent (15%) of the voting power of the Company, shall have the
right to designate one member of the Board. The foregoing sentence shall survive
termination of this Agreement.
(d) Immediately prior to the closing of (i) any consolidation
or merger of the Company with or into any other corporation or corporations in
which the Holders of outstanding shares of Capital Stock immediately before such
consolidation or merger do not, immediately after such consolidation or merger,
retain stock representing the majority of voting power of the surviving
Corporation; (ii) the sale, transfer or assignment of securities of the Company
representing the majority of the voting power of all the Company's outstanding
voting securities by the Holders thereof to an acquiring party in a single
transaction or series of related transactions; or (iii) any other sale, transfer
or assignment of securities of the Company representing over fifty percent (50%)
of the voting power of the Company's then outstanding voting securities by the
holders thereof to an acquiring party other than an affiliate of any Investor.
9. MISCELLANEOUS.
(a) BINDING EFFECT AND BENEFIT; ASSIGNMENT. This Agreement
shall be binding upon, and shall inure to the benefit of, the parties hereto and
their respective legal representatives, heirs, successors and permitted assigns.
Otherwise, this Agreement is not intended to create any right for the benefit of
any third party, and this Agreement shall not be assignable or otherwise
transferrable by the Holders or the Company without the prior written consent of
the non-assigning parties hereto; provided each Investor may transfer its shares
of Capital Stock to a company controlled by or under common control with such
Investor as long as the transferee agrees in writing to be bound by, and subject
to, all terms and conditions of this Agreement as a condition precedent to the
transfer of any shares of Capital Stock.
(b) FURTHER ASSURANCES. The parties agree that from time to
time hereafter, upon request, each of them will execute, acknowledge and deliver
such other instruments and documents and take such further action as may be
reasonably necessary to carry out the intent of this Agreement.
(c) MODIFICATION. No term or provision contained herein may be
modified, amended or waived except by written agreement or consent signed by the
party to be bound thereby.
(d) HEADINGS AND CAPTIONS. Subject headings and captions are
included for convenience purposes only and shall not affect the interpretation
of this Agreement.
(e) NOTICE. All notices, requests, demands and other
communications permitted or required hereunder shall be in writing, and either
(i) delivered in person, (ii) sent by
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express mail or other overnight delivery service providing receipt of delivery,
(iii) mailed by certified mail, postage prepaid, return receipt requested, or
(iv) sent by telecopy or other facsimile transmission as follows:
If to the Company, addressed or delivered in person to:
Digital Asset Management, Inc.
00 Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx, President
Fax: 000-000-0000
with a copy to:
Kronish, Lieb, Weiner & Xxxxxxx, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
If to Investors, addressed or delivered in person to:
Acxiom Corporation
000 Xxxxxxxxxx Xxxx.
Xxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxxx, Group Leader
Fax: 000-000-0000
with a copy to:
Friday, Xxxxxxxx & Xxxxx
000 X. Xxxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Fax: 000-000-0000
and to:
PC411, Inc.
000 XX Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Attn: X. Xxxxxx Xxxxxxxx III
Vice President and Chief Financial Officer
Fax: 000-000-0000
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with a copy to:
Morse, Zelnick, Rose & Lander, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxxxx, Esq.
Fax: 000-000-0000
If to Stockholder(s), addressed or delivered in person to:
Xx. Xxxx Xxxxx
Digital Asset Management, Inc.
00 Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
Xx. Xxxxxx Xxxxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Xx. Xxxxxx X. Xxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxxxx, XX 00000
Fax: 000-000-0000
Xx. Xxxxx Xxxxxxx
000 Xxxx Xxxxxx
Xxxxx, XX 00000
Fax: 000-000-0000
Xx. Xxxxx Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Fax: 000-000-0000
Xx. Xxxx Xxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
or to such other address as either party may designate by notice.
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Any such notice or communication, if given or made by prepaid,
certified mail or by recorded express delivery, shall be deemed to have been
made when actually received, but not later than three (3) business days after
the same was posted or given to such express delivery service and if made
properly by telecopy or other facsimile transmission, such notice or
communication shall be deemed to have been made at the time of dispatch.
(f) SEVERABILITY. If any portion of this Agreement is held
invalid, illegal or unenforceable, such determination shall not impair the
enforceability of the remaining terms and provisions herein.
(g) WAIVER. No waiver of a breach or violation of any
provision of this Agreement shall operate or be construed as a waiver of any
subsequent breach or limit or restrict any right or remedy otherwise available.
(h) GENDER AND NUMBER. Throughout this Agreement, the
masculine shall include the feminine and neuter and the singular shall include
the plural and vice versa as the context requires.
(i) ENTIRE AGREEMENT. This document (together with the
exhibits, schedules and attachments hereto) constitutes the entire Agreement of
the parties and supersedes any and all other prior agreements, oral or written,
with respect to the subject matter contained herein. There are no
representations, warranties, covenants or agreements between the parties hereto
with respect to this transaction except those expressly set forth herein.
(j) GOVERNING LAW. This Agreement shall be subject to and
governed by the laws of the State of Delaware.
(k) INCORPORATION BY REFERENCE. All schedules, exhibits and
documents referred to in this Agreement shall be deemed incorporated herein by
any reference thereto as if fully set out.
(l) COUNTERPARTS. This Agreement may be executed in one or
more counterparts (all counterparts together reflecting the signatures of all
parties), each of which shall be deemed to be an original, and all of which
together shall constitute one and the same instrument.
(n) AUTHORITY. Each individual signing this Agreement in a
representative capacity acknowledges and represents that he/she is duly
authorized to execute this Agreement in such capacity in the name of, and on
behalf of, the designated corporation, partnership, trust, or other entity.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement
effective as of the day and year aforesaid.
Investors:
Acxiom Corporation
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx, Group Leader
PC411, Inc.
By: /s/ X. Xxxxxx Xxxxxxxx III
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X. Xxxxxx Xxxxxxxx III,
Vice President and Chief Financial Officer
Company:
Digital Asset Management, Inc.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, President
Stockholders:
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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Xxxxxx Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
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