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
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO RULE 13D-L(A) AND AMENDMENTS THERETO
FILED PURSUANT TO RULE 13D-2(A)
(AMENDMENT NO. )*
Front Porch Digital Inc.
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(Name of Issuer)
Common Stock, par value $.001 per share
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(Title of Class of Securities)
359014107
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(CUSIP number)
JP Morgan Direct Venture Capital Institutional Investors LLC
Attn: Robert E. Kiss
c/o J.P. Morgan Investment Management Inc.
522 Fifth Avenue
New York, New York 10036
(212) 837-1845
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(Name, address and telephone number of person authorized to receive
notices and communications)
AUGUST 18, 2004
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(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
|_|.
Note. Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
(Continued on the following pages)
(Page 1 of 12 Pages)
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*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act.
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CUSIP No. 359014107 13D Page 2 of Pages 12
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1. Names of Reporting Persons
I.R.S. Identification Nos. of above persons (entities only)
J.P. Morgan Direct Venture Capital Institutional Investors LLC
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2. Check the Appropriate Box if a Member of a Group* (a) |_|
(b) |X|
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3. SEC Use Only
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4. Source of Funds*
OO
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5. Check Box if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) |_|
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6. Citizenship or Place of Organization
Delaware
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7. SOLE VOTING POWER 0
NUMBER OF
SHARES -----------------------------------------------------------
BENEFICIALLY
OWNED BY EACH 8. SHARED VOTING POWER 19,245,798 (see Item 5)
REPORTING
PERSON WITH -----------------------------------------------------------
9. SOLE DISPOSITIVE POWER 0
-----------------------------------------------------------
10. SHARED DISPOSITIVE POWER 19,245,798 (see Item 5)
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
19,245,798 (see Item 5)
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12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares* X
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13. Percent of Class Represented by Amount in Row (11)
Approximately 16.8% (see Item 5)
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14. Type of Reporting Person
OO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 359014107 13D Page 3 of Pages 12
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1. Names of Reporting Persons
I.R.S. Identification Nos. of above persons (entities only)
J.P. Morgan Direct Venture Capital Private Investors LLC
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2. Check the Appropriate Box if a Member of a Group* (a) |_|
(b) |X|
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3. SEC Use Only
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4. Source of Funds*
OO
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5. Check Box if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) |_|
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6. Citizenship or Place of Organization
Delaware
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7. SOLE VOTING POWER 0
NUMBER OF
SHARES -----------------------------------------------------------
BENEFICIALLY
OWNED BY EACH 8. SHARED VOTING POWER 3,115,135 (see Item 5)
REPORTING
PERSON WITH -----------------------------------------------------------
9. SOLE DISPOSITIVE POWER 0
-----------------------------------------------------------
10. SHARED DISPOSITIVE POWER 3,115,135 (see Item 5)
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
3,115,135 (see Item 5)
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12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares* X
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13. Percent of Class Represented by Amount in Row (11)
Approximately 2.9% (see Item 5)
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14. Type of Reporting Person
OO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 359014107 13D Page 4 of Pages 12
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1. Names of Reporting Persons
I.R.S. Identification Nos. of above persons (entities only)
522 Fifth Avenue Fund, L.P.
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2. Check the Appropriate Box if a Member of a Group* (a) |_|
(b) |X|
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3. SEC Use Only
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4. Source of Funds*
OO
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5. Check Box if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) |_|
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6. Citizenship or Place of Organization
Delaware
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7. SOLE VOTING POWER 0
NUMBER OF
SHARES -----------------------------------------------------------
BENEFICIALLY
OWNED BY EACH 8. SHARED VOTING POWER 947,026 (see Item 5)
REPORTING
PERSON WITH -----------------------------------------------------------
9. SOLE DISPOSITIVE POWER 0
-----------------------------------------------------------
10. SHARED DISPOSITIVE POWER 947,026 (see Item 5)
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11. Aggregate Amount Beneficially Owned by Each Reporting Person
947,026 (see Item 5)
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12. Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares* X
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13. Percent of Class Represented by Amount in Row (11)
Approximately 0.9% (see Item 5)
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14. Type of Reporting Person
PN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 359014107 13D Page 5 of Pages 12
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ITEM 1. SECURITY AND ISSUER
The class of equity security to which this statement on Schedule 13D
relates is the common stock, par value $0.001 per share (the "Common Stock" or
the "Shares") of Front Porch Digital Inc., a Nevada corporation (the "Company").
The Company's principal offices are located at 1140 Pearl Street, Boulder,
Colorado 80302.
This filing of the Schedule 13D is not, and should not be deemed to be,
an admission that the statement on Schedule 13D or that any Amendment thereto is
required to be filed.
ITEM 2. IDENTITY AND BACKGROUND.
This statement on Schedule 13D is being filed by the following persons
pursuant to Rule 13d-1(k) promulgated by the Securities and Exchange Act of
1934, as amended (the "Act"):
(i) J.P. Morgan Direct Venture Capital Institutional Investors
LLC, a Delaware limited liability company ("JPM Institutional"), whose
principal office is located at 522 Fifth Avenue, New York, NY 10036;
(ii) J.P. Morgan Direct Venture Capital Private Investors LLC,
a Delaware limited liability company ("JPM Private"), whose principal
office is located at 522 Fifth Avenue, New York, NY 10036; and
(iii) 522 Fifth Avenue Fund, L.P., a Delaware limited
partnership ("522 Fund" and collectively with JPM Institutional and JPM
Private, the "JPM Reporting Persons"), whose principal office is
located at 522 Fifth Avenue, New York, NY 10036.
The investment advisor to JPM Institutional is JPMorgan Chase Bank
("JPMCB"), and the principal office of JPMCB is 270 Park Avenue, New York, NY
10017. JPMCB is engaged primarily in the provision of commercial banking and
investment management services. The investment advisor to each of JPM Private
and 522 Fund is J.P. Morgan Investment Management Inc., a Delaware corporation
("JPMIM"), and the principal office of JPMIM is 522 Fifth Avenue, New York, NY
10036. JPMIM is engaged in the provision of investment management services.
JPMIM is also the sole shareholder of 522 Fifth Avenue Corp., a Delaware
corporation ("522 Corp"). 522 Corp is the general partner of 522 Fund and its
principal office is located at the same address as the principal office of
JPMIM. 522 Corp engages indirectly in making private equity and other
investments. JPMIM is a wholly owned subsidiary of J.P. Morgan Fleming Asset
Management Holdings Inc., a Delaware corporation ("Fleming"). The principal
office of Fleming is located at the same address as the principal office of
JPMIM. Fleming is indirectly engaged in the provision of investment management
services. Each of Fleming and JPMCB are wholly owned subsidiaries of JPMorgan
Chase & Co., a Delaware corporation ("JPMorgan Chase"). JPMorgan Chase is
engaged (primarily through subsidiaries) in the commercial banking business and
its principal office is 270 Park Avenue, New York, NY 10017. Information as to
each executive officer and director of each of JPMCB, JPMIM, 522 Corp, Fleming
and JPMorgan Chase is set forth on Schedule A hereto and incorporated herein by
this reference.
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CUSIP No. 359014107 13D Page 6 of Pages 12
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During the last five (5) years, no JPM Reporting Person has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors). During the last five (5) years, no JPM Reporting Person was a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which any such person was or is subject to a
judgment, decree or final order enjoining future violations, or prohibiting or
mandating activities subject to Federal or State securities laws or finding any
violation with respect to such laws.
On August 18, 2004, Front Porch Merger Corp. ("Mergersub"), a Delaware
corporation and wholly-owned subsidiary of the Company, merged with and into
ManagedStorage International, Inc. ("MSI"), a Delaware corporation, with MSI
surviving (such merger, the "Merger") pursuant to an Agreement and Plan of
Merger (the "Merger Agreement"), dated as of August 16, 2004, by and among, MSI,
Mergersub and the Company in the form attached hereto as EXHIBIT A (which is
hereby incorporated by reference). As a result of the Merger: (i) shares of
common stock, series A redeemable preferred stock and/or series B convertible
preferred stock of MSI were exchanged for the right to receive shares of Common
Stock of the Company, and (ii) shares of series C redeemable preferred stock of
MSI were exchanged for the right to receive shares of series A preferred stock,
par value $0.001 per share, of the Company (the "Series A Preferred Stock").
By virtue of their ownership of capital stock of MSI as of immediately
prior to the Merger, each of the JPM Reporting Persons received, as a result of
the Merger, shares of Common Stock and shares of Series A Preferred Stock in
exchange for their shares of MSI capital stock.
Each of Tudor Ventures II, L.P. ("Tudor"), The Raptor Global Portfolio
Ltd., The Altar Rock Fund L.P., Great Hill Equity Partners Limited Partnership
("GHEP") and Great Hill Investors, LLC (each, an "Other Series A Stockholder"
and together with the JPM Reporting Persons, the "Series A Stockholders"), along
with certain other stockholders of MSI, received, as a result of the Merger, the
right to receive shares of Series A Preferred Stock in exchange for their shares
of series C redeemable preferred stock of MSI.
As of the date hereof, each share of Series A Preferred Stock was
immediately convertible, at the option of the holder thereof, into twenty (20)
shares of Common Stock. The holders of shares of Series A Preferred Stock,
voting separately as a single class, have the right to elect three (3) directors
to the Board of Directors of the Company.
Pursuant to a voting agreement (the "Voting Agreement"), dated August
18, 2004, by and among each of the Series A Stockholders in the form attached
hereto as EXHIBIT B (which is hereby incorporated by reference), each of the
Series A Stockholders has agreed to vote all of its shares of Series A Preferred
Stock in favor of individuals nominated for election as directors of the Company
by certain Series A Stockholders (including, without limitation, one (1)
individual nominated from time to time by JPM Institutional).
The JPM Reporting Persons, the Other Series A Stockholders and persons
deemed to beneficially own Shares held, or otherwise beneficially owned, by the
Other Series A Stockholders may be deemed to constitute a group for purposes of
Section 13(d) or Section 13(g) of the Act (the "Group"). The JPM Reporting
Persons expressly disclaim (i) that they are a
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CUSIP No. 359014107 13D Page 7 of Pages 12
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member of any group for purposes of Section 13(d) or 13(g), and (ii) that they
have agreed to act as a group other than as described in this Statement on
Schedule 13D.
The JPM Reporting Persons are filing this statement on Schedule 13D
jointly and in accordance with the provisions of Rule 13d-1(k)(1) of the Act but
are filing this statement on Schedule 13D separately from the other members of
the Group in accordance with the provisions of Rule 13d-1(k)(2) of the Act.
Pursuant to Rule 13d-4 of the Act, each of the JPM Reporting Persons
expressly declares that the filings of this statement on Schedule 13D shall not
be construed as an admission that any such person is, for purposes of Section
13(d) and/or Section 13(g) of the Act or otherwise, the beneficial owner of any
securities held by any other person.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
As described in Item 2 above and Items 4 and 5 below, each of the JPM
Reporting Persons received, as a result of the Merger, shares of Common Stock
and Series A Preferred Stock of the Company in exchange for all of their shares
of capital stock of MSI.
ITEM 4. PURPOSE OF TRANSACTIONS.
As described in Item 2 above, on August 18, 2004, Mergersub merged with
and into MSI, with MSI surviving, pursuant to the Merger Agreement. As a result
of the Merger: (i) each share of common stock, series A redeemable preferred
stock and series B convertible preferred stock of MSI was exchanged for the
right to receive 0.3089, 200, and 27.789 shares of Common Stock of the Company,
respectively, and (ii) each share of series C redeemable preferred stock of MSI
was exchanged for the right to receive 111.6042 shares of Series A Preferred
Stock of the Company. As of the date hereof, each share of Series A Preferred
Stock was immediately convertible, at the option of the holder thereof, into
twenty (20) shares of Common Stock.
The holders of shares of Series A Preferred Stock, voting separately as
a single class, have the right to elect three (3) directors to the Board of
Directors of the Company. In connection with the Merger, the size of the Board
of Directors of the Company was increased to seven (7), Dr. Jay Yogeshwar
resigned from the Board of Directors and two (2) of the vacancies created by
such increase and resignation were filled by the Board of Directors of the
Company with two (2) individuals nominated by certain Series A Stockholders.
Pursuant to the Voting Agreement, each of the Series A Stockholders has
agreed to vote all of its shares of Series A Preferred Stock in favor of: (i)
one (1) individual nominated, from time to time, for election as a director of
the Company by GHEP, (ii) one (1) individual nominated, from time to time, for
election as a director of the Company by JPM Institutional, and (iii) one (1)
individual nominated, from time to time, for election as a director of the
Company by Tudor. No proxies were given to effect the provisions of the Voting
Agreement.
Effective as of August 18, 2004, Mr. Michael Knaisch has resigned as
Chief Executive Officer of the Company and Mr. Thomas P. Sweeney III has been
appointed as Mr. Michael Knaisch's replacement.
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CUSIP No. 359014107 13D Page 8 of Pages 12
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In connection with the Merger, a certificate of designations (the
"Certificate of Designations") setting forth the terms of the Series A Preferred
Stock was filed on August 18, 2004 with the Secretary of State of Nevada in the
form attached hereto as EXHIBIT C (which is hereby incorporated by reference
herein). In addition, the Merger Agreement provides that the Corporation shall
take all necessary actions to increase the number of shares of Common Stock
authorized under its certificate of incorporation so that the Company can
reserve the number of shares of Common Stock issuable upon conversion of its
Series A Preferred Stock.
The information provided in Item 6 below under the heading "Lock-Up and
Voting Agreements" is hereby incorporated by reference herein.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
The descriptions contained in Item 2 and Item 4 above are incorporated
herein by reference.
As a result of the Merger, JPM Institutional received 19,245,798 shares
of Common Stock, representing approximately 16.8% of the Common Stock
(calculated as if the 497,532 shares of Series A Preferred Stock which JPM
Institutional received in the Merger had been converted into 9,950,633 shares of
Common Stock). As a result of the Merger, JPM Private received 3,115,135 shares
of Common Stock, representing approximately 2.9% of the Common Stock (calculated
as if the 81,136 shares of Series A Preferred Stock which JPM Private received
in the Merger had been converted into 1,622,729 shares of Common Stock). As a
result of the Merger, 522 Fund received 947,026 shares of Common Stock,
representing 0.9% of the Common Stock (calculated as if the 24,107 shares of
Series A Preferred Stock which 522 Fund received in the Merger had been
converted into 482,136 shares of Common Stock).
JPMCB, as the investment advisor of JPM Institutional, may be deemed to
be the beneficial owner of the Shares owned by JPM Institutional.
JPMIM, as the investment advisor of each of JPM Private and 522 Fund,
may be deemed to be the beneficial owner of the Shares owned by JPM Private and
522 Fund.
JPMIM and JPMCB, the investment advisors to JPM Private and JPM
Institutional, respectively, are subsidiaries of JPMorgan Chase.
522 Corp, as general partner of 522 Fund, may be deemed to be the
beneficial owner of the Shares owned by 522 Fund.
JPMIM, as the sole stockholder of 522 Corp, may be deemed to be the
beneficial owner of the Shares owned by 522 Fund.
Fleming, as the sole stockholder of JPMIM, may be deemed to be the
beneficial owner of the Shares owned by 522 Fund.
JPMorgan Chase, as the sole stockholder of Fleming and the indirect
parent of JPMIM, may be deemed to be the beneficial owner of the Shares owned by
522 Fund.
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CUSIP No. 359014107 13D Page 9 of Pages 12
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The foregoing shall not be an admission that (i) 522 Corp, JPMIM,
Fleming or JPMorgan Chase are the beneficial owners of the Shares owned by 522
Fund, (ii) JPMIM is the beneficial owner of the Shares owned by JPM Private or
(iii) JPMCB is the beneficial owner of the Shares owned by JPM Institutional.
As a result of the Merger and based solely on information provided to
the JPM Reporting Persons by the Other Series A Stockholders, the Other Series A
Stockholders received 64,172,884 shares of Common Stock, representing
approximately 45.3% of the Common Stock (calculated as if the 1,847,607 shares
of Series A Preferred Stock which the other Series A Stockholders received in
the Merger had been converted into 36,952,147 shares of Common Stock).
Based in part on information provided to the JPM Reporting Persons by
the Other Series A Stockholders, as a result of such transactions, each of the
JPM Reporting Persons may be deemed as members of the Group to have beneficial
ownership of, and be deemed to have the shared power to vote or to direct the
vote and the shared power to dispose or to the direct the disposition of
87,480,843 shares of Common Stock, representing approximately 56.9% of the
Common Stock, which 87,480,843 shares of Common Stock would be comprised of: (i)
23,307,959 shares of Common Stock beneficially owned by the JPM Reporting
Persons and (ii) 64,172,884 shares of Common Stock beneficially owned by any
member of the Group other than the JPM Reporting Persons. The JPM Reporting
Persons expressly disclaim (i) that they are a member of any group for purposes
of Section 13(d) or 13(g), and (ii) that they have agreed to act as a group
other than as described in this Statement on Schedule 13D.
The JPM Reporting Persons are filing this statement on Schedule 13D
jointly and in accordance with the provisions of Rule 13d-1(k)(1) of the Act but
are filing this statement on Schedule 13D separately from the other members of
the Group in accordance with the provisions of Rule 13d-1(k)(2) of the Act.
Pursuant to Rule 13d-4 of the Act, each of the JPM Reporting Persons
expressly declares that the filings of this statement on Schedule 13D shall not
be construed as an admission that any such person is, for purposes of Section
13(d) and/or Section 13(g) of the Act or otherwise, (i) the beneficial owner of
any securities held by any other person, or (ii) the beneficial owner of any
securities held or beneficially owned by any member of the Group other than such
JPM Reporting Person.
The filing of this statement on Schedule 13D by each of the JPM
Reporting Persons shall not be considered an admission that such JPM Reporting
Person, for the purposes of Section 13(d) of the Act, is the beneficial owner of
any Shares in which such JPM Reporting Person does not have a pecuniary
interest.
Percentages calculated in this statement on Schedule 13D are based upon
an aggregate of 104,756,444 shares outstanding as of immediately following the
Merger as disclosed by the Company in the Merger Agreement and convertability of
each share of Series A Preferred Stock into twenty (20) shares of Common Stock.
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CUSIP No. 359014107 13D Page 10 of Pages 12
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Except as reported in this statement on Schedule 13D, the JPM Reporting
Persons have not engaged in any other transactions in the Company's securities
in the past sixty (60) days.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
The information set forth under Item 5 above and the Exhibits attached
hereto are incorporated herein by reference.
REGISTRATION RIGHTS AGREEMENT:
Each of the Series A Stockholders entered into a registration rights
agreement (the "Registration Rights Agreement"), dated as of August 18, 2004,
with the Company in the form attached hereto as EXHIBIT D (which is hereby
incorporated by reference herein), pursuant to which the Series A Stockholders
have the following registration rights in respect of the Common Stock:
o Subject to certain limitations as set forth in the
Registration Rights Agreement, the holders of a majority of the
then-outstanding (A) (i) shares of Common Stock and (ii) shares of
Common Stock issued or issuable upon the conversion of the shares of
Series A Preferred Stock, issued to the Series A Stockholders pursuant
to the Merger Agreement, and (B) any stock of the Company issued as a
dividend or other distribution with respect to, or in exchange for or
in replacement of, the shares of Series A Preferred Stock or Common
Stock referred to in clause (A) (collectively, the "Registrable
Securities"), may demand, up to two (2) times, that the Company
register their Common Stock on Form S-1;
o Whenever the Company is eligible to register its securities
under the Securities Act of 1933, as amended (the "Securities Act") on
Form S-3 (but subject to certain limitation as set forth in the
Registration Rights Agreement), the holders of at least twenty percent
(20%) of the then-outstanding Registrable Securities may demand that
the Company register their Common Stock on Form S-3; and
o Subject to certain limitations as set forth in the
Registration Rights Agreement, the Series A Stockholders have unlimited
"piggyback" registrations rights under which they will have the right
to request that the Company register their shares of Common Stock
whenever the Company registers its securities under the Securities Act
of 1933, as amended.
LOCK-UP AND VOTING AGREEMENTS:
The Series A Stockholders and the Company entered into a Lock-up and
Voting Agreement, dated as of August 18, 2004, in the form of EXHIBIT E (which
is hereby incorporated by reference herein). Pursuant to such agreement, the
Series A Stockholders are generally prohibited from selling or otherwise
transferring their shares of Common Stock and/or Series A Preferred Stock issued
in the Merger until February 18, 2006; provided that such sale or transfer by a
Series A Stockholder is permitted to: (i) any person to which such Series A
Stockholder shall sell, assign or transfer all or substantially all of its
assets; (ii) any affiliate of such Series A
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CUSIP No. 359014107 13D Page 11 of Pages 12
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Stockholder, (iii) any member, partner or stockholder of such Series A
Stockholder; provided, however, that no such transfer of shares of Series A
Preferred Stock shall be permitted pursuant to this clause (iii), (iv) any other
Series A Stockholder, (v) in connection with any sale of all or substantially
all of the Company's assets, any sale or transfer of at least a majority of the
Company's outstanding voting securities (as of immediately prior to such
transfer) or any merger or consolidation in which the Company is not the
surviving entity or any other transaction (or series of related transactions)
following which the holders of the Company's outstanding capital stock prior to
such transaction(s) do not own a majority of the outstanding capital stock of
the Company (or any successor entity) immediately after such transaction, or
(vi) in connection with its exercise of any "piggy-back" or similar registration
rights. Pursuant to such agreement, each of the Series A Stockholders agreed to
vote all of its shares of Common Stock and/or Series A Preferred Stock issued in
the Merger in favor of the resolutions hereafter proposed by the Board of
Directors of the Company and submitted to a vote of the stockholders of the
Company within ninety (90) days following August 18, 2004, the purpose of which
are to cause the number of authorized but unissued shares of Common Stock to be
increased so as to be sufficient to issue the maximum number of such shares
issuable upon the conversion of the Series A Preferred Stock into Common Stock
pursuant to the terms of the Company's Certificate of Designations.
In addition, the Series A Stockholders, the Company, Thomas P. Sweeney
III and Equity Pier LLC entered into a Lock-Up and Voting Agreement, dated as of
August 18, 2004, in the form of EXHIBIT F (which is hereby incorporated by
reference herein). Pursuant to such agreement, each of Thomas P. Sweeney III and
Equity Pier LLC are generally prohibited from selling or otherwise transferring
their shares of Common Stock and/or Series A Preferred Stock until the earliest
date on which the Series A Stockholders and/or their permitted transferees
receive aggregate proceeds (whether in cash or otherwise) of at least
$31,500,000 from the disposition of the shares of Series A Preferred Stock
and/or Common Stock (whether underlying the Series A Preferred Stock or
otherwise) acquired pursuant to the Merger Agreement; provided however that a
transfer to (i) any person to which such restricted party shall sell, assign or
transfer all or substantially all of its assets; or (ii) any affiliate of such
restricted party, is permitted. Pursuant to such agreement, each of Thomas P.
Sweeney III and Equity Pier LLC agreed to vote all of his or its shares of
Common Stock and/or Series A Preferred Stock in favor of the resolutions
hereafter proposed by the Board of Directors of the Company and submitted to a
vote of the stockholders of the Company within ninety (90) days following August
18, 2004, the purpose of which are to cause the number of authorized but
unissued shares of Common Stock to be increased so as to be sufficient to issue
the maximum number of such shares issuable upon the conversion of the Series A
Preferred Stock into Common Stock pursuant to the terms of the Company's
Certificate of Designations.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
The following documents are filed as exhibits to this statement on
Schedule 13D:
Exhibit A. Agreement and Plan of Merger, dated as of August 16, 2004,
by and between the Company, MSI and Mergersub.
Exhibit B. Voting Agreement, dated as of August 18, 2004, by and
between the Series A Stockholders
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CUSIP No. 359014107 13D Page 12 of Pages 12
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Exhibit C. Certificate of Designations, filed with the Secretary of
State of Nevada by the Company on August 18, 2004
Exhibit D. Registration Rights Agreement, dated as of August 18, 2004,
by and among the Series A Stockholders and the Company.
Exhibit E. Lock-up and Voting Agreement, dated as of August 18, 2004,
by and among the Series A Stockholders and the Company.
Exhibit F. Lock-up and Voting Agreement, dated as of August 18, 2004,
by and among the Series A Stockholders, Thomas P. Sweeney III, Equity Pier LLC
and the Company.
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of each
of the persons signing below, each person signing below certifies that the
information set forth in this statement on Schedule 13D is true, complete and
correct.
J.P. MORGAN DIRECT VENTURE
CAPITAL INSTITUTIONAL INVESTORS LLC
By: JPMorgan Chase Bank, as
Investment Advisor
By: /s/ Julian Shles
-------------------------------
Managing Director
J.P. MORGAN DIRECT VENTURE
CAPITAL PRIVATE INVESTORS, LLC
By: J.P. Morgan Investment
Management Inc., as Investment
Advisor
By: /s/ Julian Shles
-------------------------------
Managing Director
522 FIFTH AVENUE FUND, L.P.
By: J.P. Morgan Investment
Management Inc., as Investment
Advisor
By: /s/ Julian Shles
-------------------------------
Managing Director
Schedule A
Executive Officers and Directors
522 FIFTH AVENUE CORP.
George C. Gatch Director & Executive Officer
Evelyn E. Guernsey Director & Executive Officer
Lawrence M. Unrein Director & Executive Officer
Mark Barry Ewart White* Director
Andrew S. Spencer* Executive Officer
Joseph K. Azelby Executive Officer
Seth P. Bernstein Executive Officer
Gilbert Van Hassel* Executive Officer
Lynn Avitabile Executive Officer
Marvin R. Chiddick Executive Officer
Niall Byrne* Executive Officer
Paul A. Quinsee Executive Officer
Paul L. Scibetta Executive Officer
J.P. MORGAN INVESTMENT MANAGEMENT INC.
George C. Gatch Director & Executive Officer
Evelyn E. Guernsey Director & Executive Officer
Lawrence M. Unrein Director & Executive Officer
Mark Barry Ewart White* Director
Andrew S. Spencer* Executive Officer
Joseph K. Azelby Executive Officer
Seth P. Bernstein Executive Officer
Gilbert Van Hassel* Executive Officer
Lynn Avitabile Executive Officer
Marvin R. Chiddick Executive Officer
Niall Byrne* Executive Officer
Paul A. Quinsee Executive Officer
Paul L. Scibetta Executive Officer
J.P. MORGAN FLEMING ASSET MANAGEMENT HOLDINGS INC.
Paul Terence Bateman* Director
Clive Stuart Brown* Director
George C. Gatch Director
Evelyn E. Guernsey Director & President
James. C. Berry Secretary
Roy Kinnear* Treasurer
JPMORGAN CHASE BANK
William B. Harrison, Jr. Chairman and CEO
James Dimon President and Chief Operating Officer
David A. Coulter Vice Chairman, Chairman of the Investment Bank and
Head of Private Equity and Asset & Wealth Management
Austin Adams Chief Information Officer
Dina Dublon Chief Financial Officer
John J. Farrell Director Human Resources, Head of Real
Estate/Facilities, General Services, Security
Joan Guggenheimer Co-General Counsel
Frederick W. Hill Director of Corporate Marketing and Communications
William H. McDavid Co-General Counsel
Jeffrey C. Walker Head of JPMorgan Partners
Don M. Wilson III Chief Risk Officer
Austin Adams Executive Officer
Linda Bammann Executive Officer
Steven Black Executive Officer
James Boshart III Executive Officer
William Campbell Executive Officer
William Daley Executive Officer
James Dimon Executive Officer
David Donovan Executive Officer
Ina Drew Executive Officer
John Farrell Executive Officer
Walter Gubert Executive Officer
James Lee Executive Officer
Todd Maclin Executive Officer
Jay Mandelbaum Executive Officer
Bill McDavid Executive Officer
Heidi Miller Executive Officer
Steve Rotella Executive Officer
Charles Scharf Executive Officer
Jospeh Sclafani Executive Officer
Richard Srednicki Executive Officer
James Staley Executive Officer
Bill Winters Executive Officer
JPMORGAN CHASE & CO.
William B. Harrison, Jr. Chairman and CEO
James Dimon President and Chief Operating Officer
David A. Coulter Vice Chairman, Chairman of the Investment Bank and
Head of Private Equity and Asset & Wealth Management
Austin Adams Chief Information Officer
Dina Dublon Chief Financial Officer
John J. Farrell Director Human Resources, Head of Real
Estate/Facilities, General Services, Security
Joan Guggenheimer Co-General Counsel
Frederick W. Hill Director of Corporate Marketing and Communications
William H. McDavid Co-General Counsel
Jeffrey C. Walker Head of JPMorgan Partners
Don M. Wilson III Chief Risk Officer
Austin Adams Executive Officer
Linda Bammann Executive Officer
Steven Black Executive Officer
James Boshart III Executive Officer
William Campbell Executive Officer
William Daley Executive Officer
James Dimon Executive Officer
David Donovan Executive Officer
Ina Drew Executive Officer
John Farrell Executive Officer
Walter Gubert Executive Officer
James Lee Executive Officer
Todd Maclin Executive Officer
Jay Mandelbaum Executive Officer
Bill McDavid Executive Officer
Heidi Miller Executive Officer
Steve Rotella Executive Officer
Charles Scharf Executive Officer
Jospeh Sclafani Executive Officer
Richard Srednicki Executive Officer
James Staley Executive Officer
Bill Winters Executive Officer
* All of the individuals listed, unless otherwise noted with an asterisk, are
believed to be U.S citizens. Individuals listed with an asterisk are believed to
be non U.S. persons.
Dates Referenced Herein and Documents Incorporated by Reference
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