Exhibit 10.6
AGREEMENT
Agreement, dated this __ day of June, 1999, among Digital Courier
Technologies, Inc., a Delaware Corporation (the "Company"), Brown Simpson
Strategic Growth Fund, Ltd., a Cayman Islands exempt company ("Brown Simpson
Limited") and Brown Simpson Strategic Growth Fund, L.P., a New York limited
partnership ("Brown Simpson L.P." and, together with Brown Simpson Limited,
"Brown Simpson").
WHEREAS, the Company and Brown Simpson are parties to (i) the
Securities Purchase Agreement dated as of November 23, 1998 and amended as of
December 2, 1998 and (ii) the Securities Purchase Agreement dated March 3, 1999
(the "March 3rd Agreement" and, together with the November 23, 1998 Securities
Purchase Agreement, as amended, the "Securities Purchase Agreements");
WHEREAS, the Company has failed to have the Registration Statement
covering the Registrable Securities declared effective by the Securities and
Exchange Commission (as such terms are defined in the Registration Rights
Agreement (the "Registration Rights Agreement") among the Company and Brown
Simpson, dated as of November 23, 1998) in accordance with the terms of the
Registration Rights Agreement;
WHEREAS, pursuant to terms of the warrants (the "Warrants") issued to
Brown Simpson in connection with the Securities Purchase Agreements, the Company
has the right to cause Brown Simpson to exercise the Warrants (the "Call
Option") if, with respect to each series of Warrants, the Per Share Market Value
(as defined in the Warrants) equals or exceeds the amounts set forth under the
column entitled "Call Option Price" on Schedule I hereof for the consecutive
number of trading days set forth under the column entitled "Trading Days" on
Schedule I hereof;
WHEREAS, pursuant to terms of the March 3rd Agreement, the Company has
the right to cause Brown Simpson to purchase the Trance D Units (as defined in
the March 3rd Agreement) if certain conditions set forth in the March 3rd
Agreement are met (the "Tranche D Option");
WHEREAS, the Company and Brown Simpson desire to (i) suspend all
penalties incurred by the Company through August 2, 1999 in connection with the
Registration Rights Agreement, (ii) amend, with respect to each series of
Warrants, the number of consecutive trading days which triggers the Company's
Call Option to the number of consecutive trading days set forth under the column
entitled "Trading Days" on Schedule II hereof and (iii) amend the number of
consecutive trading days which triggers the Company's Tranche D Option.
NOW THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Unless otherwise expressly stated herein to the contrary, all the
provisions of the Securities Purchase Agreements, the Registration Rights
Agreement and the Warrants remain valid, binding and in effect as set forth in
the Securities Purchase Agreements, the Registration Rights Agreement and the
Warrants, respectively, except as necessary to give effect to the matters
provided for in this Agreement.
2. Brown Simpson shall waive any penalties incurred by the Company and owed to
Brown Simpson through August 2, 1999 which relate to the failure of the Company
to have a Registration Statement covering the Registrable Securities declared
effective by the Securities and Exchange Commission in accordance with the terms
of the Registration Rights Agreement.
3. The Company shall, with respect to each series of Warrants, amend the
applicable number of consecutive trading days for which the Per Share Market
Value is required to equal or exceed the "Call Option Price" before triggering
the Company's Call Option to the number of consecutive trading days set forth
under the column entitled "Trading Days" on Schedule II hereof.
4. Section 4.2(b)(xvi) of the March 3rd Agreement shall be amended as
follows:
Common Stock Price. The Per Share Market Value of the Common Stock
shall have been more than the Tranche D Purchase Price per share for at
least 130 consecutive trading days prior to the Tranche D Closing Date
and at least equal to the Tranche D Purchase Price on the day before
the Tranche D Closing Date; provided, however, that in no event shall
the Tranche D Closing occur on a date which is prior to the 16th
calendar day of the month following such 130 consecutive trading day
period. The "Per Share Market Value" means on any particular date the
closing bid price per share of the Common Stock on such date on Nasdaq
or other registered national stock exchange on which the Common Stock
is then listed or if there is no such price on such date, then the
closing bid price on such exchange or quotation system on the date
nearest preceding such date; and"
5. Notwithstanding the foregoing, if the Securities and Exchange Commission does
not declare the Registration Statement effective by August 2, 1999, the
penalties owed by the Company to Brown Simpson with respect to the Registration
Rights Agreement shall be reinstated and owed in full to Brown Simpson from the
date on which such penalties first began to accrue, as though this Agreement had
not been entered into; provided, however, that in the event the foregoing shall
occur (i) the number of trading days set forth under the column entitled
"Trading Days" on Schedule II hereof shall continue to remain in effect and
shall not revert back to the number of trading days set forth under the column
entitled "Trading Days" on Schedule I hereof and (ii) Section 4.2(b)(xvi) of the
March 3rd Agreement shall remain in effect as amended pursuant to the terms of
this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized persons as of the date first
indicated above.
DIGITAL COURIER TECHNOLOGIES, INC.
By:
Name:
Title:
BROWN SIMPSON STRATEGIC GROWTH FUND, LTD.
By: Brown Simpson Asset Management, LLC
By:
Name:
Title:
BROWN SIMPSON STRATEGIC GROWTH FUND, L.P.
By: Brown Simpson Capital, LLC
its general partner
By:
Name:
Title:
SCHEDULE I
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- ------------------- ---------------------------- ----------------------------- ----------------------------
Series Number of Warrants Call Option Price1 Trading Days
------ ------------------ ----------------- ------------
- ------------------- ---------------------------- ----------------------------- ----------------------------
A-1 260,000 $11.06 15
- ------------------- ---------------------------- ----------------------------- ----------------------------
A-2 140,000 $11.06 15
- ------------------- ---------------------------- ----------------------------- ----------------------------
A1X-1 50,000 $18.98 15
- ------------------- ---------------------------- ----------------------------- ----------------------------
A1X-2 150,000 $18.98 15
- ------------------- ---------------------------- ----------------------------- ----------------------------
A1-1 50,000 $18.98 15
- ------------------- ---------------------------- ----------------------------- ----------------------------
A1-2 150,000 $18.98 15
- ------------------- ---------------------------- ----------------------------- ----------------------------
C-1 444,444 $11.06 30
- ------------------- ---------------------------- ----------------------------- ----------------------------
C-2 355,556 $11.06 30
- ------------------- ---------------------------- ----------------------------- ----------------------------
SCHEDULE II
-----------
- ------------------- ---------------------------- ----------------------------- ----------------------------
Series Number of Warrants Call Option Price2 Trading Days
------ ------------------ ----------------- ------------
- ------------------- ---------------------------- ----------------------------- ----------------------------
A-1 260,000 $11.06 130
- ------------------- ---------------------------- ----------------------------- ----------------------------
A-2 140,000 $11.06 130
- ------------------- ---------------------------- ----------------------------- ----------------------------
A1X-1 50,000 $18.98 130
- ------------------- ---------------------------- ----------------------------- ----------------------------
A1X-2 150,000 $18.98 130
- ------------------- ---------------------------- ----------------------------- ----------------------------
A1-1 50,000 $18.98 130
- ------------------- ---------------------------- ----------------------------- ----------------------------
A1-2 150,000 $18.98 130
- ------------------- ---------------------------- ----------------------------- ----------------------------
C-1 444,444 $11.06 130
- ------------------- ---------------------------- ----------------------------- ----------------------------
C-2 355,556 $11.06 130
- ------------------- ---------------------------- ----------------------------- ----------------------------