General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 16 66K
2: EX-99.1 Miscellaneous Exhibit 69 244K
3: EX-99.2 Miscellaneous Exhibit 6 17K
4: EX-99.3 Miscellaneous Exhibit 21 85K
5: EX-99.4 Miscellaneous Exhibit 21 70K
6: EX-99.5 Miscellaneous Exhibit 10 31K
7: EX-99.6 Miscellaneous Exhibit 10 32K
EX-99.2 — Miscellaneous Exhibit
| EX-99.2 | 1st Page of 6 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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Exhibit 99.2
VOTING SIDE-LETTER AGREEMENT
This agreement (the "Agreement") is made as of this 18th day of August,
2004, by and among the persons and entities listed on SCHEDULE I attached hereto
(each, a "Series A Stockholder").
WHEREAS, this Agreement is being entered into in connection with the
merger (the "Merger") of Front Porch Merger Corp. ("Mergersub"), a wholly owned
subsidiary of Front Porch Digital Inc. ("FPDI"), with and into ManagedStorage
International, Inc. ("MSI"), with MSI surviving as a wholly-owned subsidiary of
FPDI, pursuant to that certain Agreement and Plan of Merger, dated as of August
16, 2004, by and among FPDI, MSI and Mergersub (the "Merger Agreement");
WHEREAS, each of the Series A Stockholders held, as of immediately prior
to the Merger, shares of MSI's Series C Preferred Stock, which capital stock is
being exchanged for shares of Series A Preferred Stock, par value $0.001 per
share, of FPDI (the "Series A Preferred Stock"); and
WHEREAS, pursuant to FPDI's certificate of incorporation as in effect as
of immediately following the Merger (as amended or modified by any certificates
of designations, the "Charter"), the holders of Series A Preferred Stock are
entitled to elect, separately as a single class, three (3) directors of FPDI
(each, a "Series A Director").
NOW THEREFORE, for the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agrees and covenant as follows:
1. Each Series A Stockholder agrees to vote all of his, her or its
shares of Series A Preferred Stock having voting power in connection with the
election of Directors and to elect and continue in office as Series A Directors
the following:
(a) one (1) person (the "GHP Nominee") nominated by Great Hill
Equity Partners Limited Partnership, which GHP Nominee shall initially be
Christopher S. Gaffney;
(b) one (1) person (the "JPM Nominee") nominated by J.P. Morgan
Direct Venture Capital Institutional Investors, LLC; and
(c) one (1) person (the "Tudor Nominee") nominated by Tudor
Ventures II L.P., which Tudor Nominee shall initially be Carmen J. Scarpa;
2. Each Series A Stockholder agrees to vote all of his, her or its
shares of Series A Preferred Stock having voting power for the removal of any
Series A Director upon the request of the Series A Stockholder then entitled to
nominate such Series A Director as set forth in Section 1 above, and for the
election to the Board of Directors of FPDI of a substitute Series A Director
designated by such party in accordance with the provisions hereof. Each Series A
Stockholder further agrees to vote all of his, her or its shares of Series A
Preferred Stock having
voting power in such manner as shall be necessary or appropriate to ensure that
any vacancy on the Board of Directors of FPDI with respect to Series A
Director(s) occurring for any reason shall be filled only in accordance with the
provisions of this Agreement.
3. Each Series A Stockholder agrees, as a condition to any sale,
disposition, hypothecation or other transfer (each such action, a "Transfer" and
the recipient thereof, a "Transferee") of his, her or its shares of Series A
Preferred Stock, to cause the Transferee thereof to agree to the provisions of
this Agreement, whereupon such Transferee shall be subject to the provisions
hereof to the same extent as the Series A Stockholders in connection with its
ownership of the shares so Transferred.
4. This Agreement shall be binding upon and inure to the benefit of the
respective successors and permitted assigns of the parties hereto as
contemplated herein. The rights of the parties hereto hereunder shall be
assignable to Transferees of their shares of Series A Preferred Stock as
contemplated herein.
5. This Agreement shall be governed by the laws of the State of
Delaware, without regard to conflicts of law principles.
6. This Agreement may be executed in one or more counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which together shall be deemed to
constitute one and the same agreement.
7. This Agreement is intended by the parties as a final expression of
their agreement and intended to be complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein.
[Signature Pages Follow]
2
IN WITNESS WHEREOF, each of the undersigned has hereunto set its hand as
of the date first above written.
GREAT HILL EQUITY PARTNERS
LIMITED PARTNERSHIP
By: Great Hill Partners GP, LLC,
its General Partner
By:/s/ Christopher S. Gaffney
--------------------------
Name: Christopher S. Gaffney
Title: Manager
GREAT HILL INVESTORS, LLC
By:/s/ Christopher S. Gaffney
--------------------------
Name: Christopher S. Gaffney
Title: Manager
[SIGNATURE PAGE TO VOTING SIDE-LETTER]
JPMORGAN CHASE BANK, as
Investment Advisor for J.P.
MORGAN DIRECT VENTURE CAPITAL
INSTITUTIONAL INVESTORS, LLC
By:/s/ Robert E. Kiss
------------------
Name: Robert E. Kiss
Title: Portfolio Manager
J.P. MORGAN INVESTMENT MANAGEMENT INC.,
as Investment Advisor for J.P. MORGAN
DIRECT VENTURE CAPITAL PRIVATE
INVESTORS, LLC
By:/s/ Robert E. Kiss
------------------
Name: Robert E. Kiss
Title: Portfolio Manager
J.P. MORGAN INVESTMENT MANAGEMENT INC.,
as Investment Advisor for
522 FIFTH AVENUE FUND, L.P.
By:/s/ Robert E. Kiss
------------------
Name: Robert E. Kiss
Title: Portfolio Manager
[SIGNATURE PAGE TO VOTING SIDE-LETTER]
TUDOR VENTURES II L.P.
By: Tudor Ventures Group, L.P.,
general partner
By:/s/ Carmen J. Scarpa
--------------------
Name: Carmen J. Scarpa
Title: Managing Director,
Tudor Ventures Group LLC
THE RAPTOR GLOBAL PORTFOLIO LTD.
By: Tudor Investment Corporation
as Investment Adviser
By:/s/ Carmen J. Scarpa
--------------------
Name: Carmen J. Scarpa
Title: Managing Director
THE ALTAR ROCK FUND L.P.
By: Tudor Investment Corporation
as General Partner
By:/s/ Carmen J. Scarpa
--------------------
Name: Carmen J. Scarpa
Title: Managing Director
[SIGNATURE PAGE TO VOTING SIDE-LETTER]
SCHEDULE I
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GREAT HILL EQUITY PARTNERS LIMITED PARTNERSHIP
GREAT HILL INVESTORS, LLC
J.P. MORGAN DIRECT VENTURE CAPITAL INSTITUTIONAL INVESTORS, LLC
J.P. MORGAN DIRECT VENTURE CAPITAL PRIVATE INVESTORS, LLC
522 FIFTH AVENUE FUND, L.P.
TUDOR VENTURES II L.P.
THE RAPTOR GLOBAL PORTFOLIO LTD.
THE ALTAR ROCK FUND L.P.
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘SC 13D’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 8/31/04 | | | | | | | 3 |
| | 8/16/04 | | 1 | | | | | 10QSB |
| List all Filings |
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