EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of August 18, 2004, between
FRONT PORCH DIGITAL, INC., a Nevada corporation (the "COMPANY"), and each Person
whose name appears on SCHEDULE A attached hereto (each a "FORMER MSI
STOCKHOLDER").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the terms of an Agreement and Plan of Merger dated
as of August 16, 2004 (the "MERGER AGREEMENT") between the Company,
ManagedStorage International, Inc., a Delaware corporation, and Front Porch
Merger Corp., a Delaware corporation, on the date hereof, the Company has agreed
to issue to certain Former MSI Stockholders such number of shares of Common
Stock as determined pursuant to the Merger Agreement; and
WHEREAS, as a condition precedent to the consummation of the
transactions contemplated by the Merger Agreement, the Company has agreed to
provide certain registration rights pursuant to the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS. For purposes of this Agreement, capitalized terms
used herein shall have the meanings set forth in the preambles hereto and in
this Section 1.
1.1 "COMMISSION" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
1.2 "COMMON STOCK" shall mean the common stock, par value
$.001 per share, of the Company or, in the case of a conversion,
reclassification or exchange of such shares of such Common Stock, shares of the
stock issued or issuable in respect of such shares of Common Stock, and all
provisions of this Agreement shall be applied appropriately thereto and to any
stock resulting therefrom.
1.3 "CURRENT SB-2" shall mean the Company's Registration
Statement on Form SB-2 filed with the Commission on June 29, 2004, as previously
or hereafter amended.
1.4 "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, or any similar federal statute enacted hereafter, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
1.5 "EXISTING RIGHTS AGREEMENTS" shall mean (i) the warrant
agreements originally dated as of October 10, 2000 between the Company and the
Original Warrantholders for the purchase of an aggregate of 900,000 shares of
Common Stock and any warrant agreement executed and delivered by the Company
upon the registration or transfer of any warrants evidenced by such warrant
agreements, (ii) the Registration Rights Agreement dated as of October 10, 2000
between the Company and Equity Pier LLC and (iii) the warrant agreement between
the Company and Equity Pier LLC dated February 28, 2001 for the purchase of up
to 3,324,696 shares of Common Stock.
1.6 "FORM S-3" means such form under the Securities Act as
in effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the Commission which permits inclusion or incorporation
of substantial information by reference to other documents filed by the Company
with the Commission.
1.7 "FORMER MSI SERIES C HOLDER RIGHTS AGREEMENT" means that
certain Registration Rights Agreement of even date herewith, by and among the
Company and 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., Thomas P. Sweeney III, Tudor Ventures II L.P., The Raptor Global
Portfolio Ltd. and The Altar Rock Fund L.P.
1.8 "HOLDER" shall mean any holder of Registrable
Securities.
1.9 "ORIGINAL WARRANTHOLDERS" shall mean Hawke Company Ltd,
Tillgrove Investments Ltd and Madona Resources Ltd.
1.10 "PERSON" shall mean any individual, firm, corporation,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, government (or an agency or political subdivision thereof)
or other entity of any kind.
1.11 "REGISTER", "REGISTERED" and "REGISTRATION" shall refer
to a registration effected by preparing and filing a registration statement with
the Commission in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness of
such registration statement by the Commission.
1.12 "REGISTRABLE SECURITIES" shall mean (A) the shares of
Common Stock 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 Common Stock referred to in clause (A); PROVIDED, HOWEVER, that such
shares of Common Stock shall only be treated as Registrable Securities hereunder
if and so long as they have not been sold in a registered public offering or
have not been sold to the public pursuant to Rule 144 under the Securities Act
or any similar or successor rule.
1.13 "REGISTRATION EXPENSES" shall mean all expenses incurred
by the Company in compliance herewith, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses, the reasonable fees and
expenses (subject to documentation thereof) of one counsel for all Holders and
Other Stockholders that offer securities being sold pursuant to the Existing
Rights Agreements, and the expense of any special audits incident to or required
by any such registration (but excluding the compensation of regular employees of
the Company, which shall be paid in any event by the Company).
1.14 "SECURITIES ACT" shall mean the Securities Act of 1933,
as amended, or any similar federal statute enacted hereafter, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
1.15 "SELLING EXPENSES" shall mean all underwriting discounts
and commissions applicable to the sale of Registrable Securities.
2. COMPANY REGISTRATION.
2.1 If the Company shall determine to register under the
Securities Act any of its equity securities or securities convertible into
equity securities either for its own account or the account of a security holder
or holders exercising any demand registration rights, other than a registration
relating solely to employee benefit plans, or a registration relating solely to
a Commission Rule 145 transaction, or a registration on Form S-4 or S-8 (or any
successor forms thereto), the Company will:
(a) promptly give to each Holder written notice
thereof (which shall include a list of the jurisdictions in
which the Company intends to attempt to qualify such securities
under the applicable blue sky or other state securities laws);
and
(b) include in such registration (and any related
qualification under blue sky laws or other compliance), and in
any underwriting involved therein, all the Registrable
Securities specified in a written request or request, made by
any Holder within thirty (30) days after receipt of the written
notice from the Company described in clause (a) above, except as
set forth in Section 2.3 below. Such written request may specify
all or a part of a Holder's Registrable Securities.
2.2 UNDERWRITING. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.1(a). The right of any Holder to registration pursuant to
this Section 2 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company and
any officers, directors or Other Stockholders distributing their securities
through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected by the Company.
2.3 LIMITATIONS ON SHARES TO BE INCLUDED. Notwithstanding
any other provision of this Section 2, if the representative of the underwriters
advises the Company in writing that marketing factors require a limitation or
elimination on the number of shares to be underwritten, the representative may
(subject to the allocation priority set forth below) limit the number of or
eliminate the Registrable Securities to be included in the registration and
underwriting. The Company shall so advise all holders of securities requesting
registration (which may include (a) other securities of the Company (the
"Additional Shares") which are held by (i) officers or directors of the Company
who, by virtue of agreements with the Company, are entitled to include their
securities in any such registration or (ii) other persons who, by virtue of
agreements with the Company, including the Former MSI Series C Rights
Agreements, are entitled to include their securities in any such registration
(the "Other Stockholders")), and the number of shares of securities that are
entitled to be included in the registration and underwriting shall be allocated
as follows: first, if such underwritten offering shall have been initiated by
the Company for the sale of securities for its own account, to the Company for
securities being sold for its own account; second, among the Other Stockholders
that offer securities being sold pursuant to the Existing Rights Agreements, in
proportion, as nearly as practicable, to the respective amounts of Additional
Shares which they had requested to be included in such registration pursuant to
the Existing Rights Agreements; third, among the Holders and the Other
Stockholders that offer securities being sold pursuant to the Former MSI Series
C Rights Agreements, in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities which they had requested to be included in
such registration; and thereafter, the number of shares that may be included in
the registration statement and underwriting shall be allocated among all
officers or directors or remaining Other Stockholders, in each case in
proportion, as nearly as practicable, to the respective amounts of Additional
Shares which they had requested to be included in such registration at the time
of filing the registration statement. If any Holder of Registrable Securities or
any officer, director or Other Stockholder disapproves of the terms of any such
underwriting, he may elect to withdraw therefrom by written notice to the
Company and the underwriter. Any Registrable Securities or other securities
excluded or withdrawn from such underwriting shall also be withdrawn from such
registration. The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 2 prior to the effectiveness of
such registration whether or not any Holder has elected to include securities in
such registration.
3. EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance
pursuant to Section 2 of this Agreement shall be borne by the
Company, except that Selling Expenses shall be borne pro rata by
each Holder in accordance with the number of shares sold.
4. REGISTRATION PROCEDURES.
4.1 In the case of each registration effected by the Company
pursuant to this Agreement, the Company will keep each Holder advised in writing
as to the initiation of each registration and as to the completion thereof and
will, at its expense:
(a) use all reasonable efforts to keep such
registration effective for a period of 180 days or until the
Holder or Holders have completed the distribution described in
the registration statement relating thereto, whichever first
occurs; provided, however, that the Company will keep such
registration effective for longer than 180 days if the costs and
expenses associated with such extended registration are borne by
the selling Holders; and provided, further, that in the case of
any registration of Registrable Securities on Form S-3 which are
intended to be offered on a continuous or delayed basis, such
180-day period shall, at the cost and expense of the Company, be
extended, if necessary, to keep the registration statement
effective until all such Registrable Securities are sold,
provided that Rule 415, or any successor rule under the
Securities Act, permits an offering on a continuous or delayed
basis, and provided, further, that applicable rules and
regulations under the Securities Act governing the obligation to
file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (y) includes any prospectus
required by Section 10(a)(3) of the Securities Act or (z)
reflects facts or events representing a material or fundamental
change in the information set forth in the registration
statement, the incorporation by reference of information
otherwise required to be included in such post-effective
amendment covered by (y) and (z) above to be contained in
periodic reports filed pursuant to Section 13 or 15(d) of the
Exchange Act in the registration statement;
(b) Prepare and file with the Commission such
amendments and supplements to such registration statement and
the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(c) Furnish such number of prospectuses and other
documents incident thereto, including any amendment of or
supplement to the prospectus, as a Holder from time to time may
reasonably request;
(d) Notify each seller of Registrable Securities
covered by such registration statement at any time when a
prospectus relating thereto is required to be delivered under
the Securities Act of the happening of any event as a result of
which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing, and
at the request of any such seller, prepare and furnish to such
seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such shares, such
prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or incomplete in the light of the circumstances then
existing;
(e) List all such Registrable Securities registered
in such registration on each securities exchange or automated
quotation system on which the Common Stock of the Company is
then listed;
(f) Provide a transfer agent and registrar for all
Registrable Securities and a CUSIP number for all such
Registrable Securities, in each case not later than the
effective date of such registration;
(g) Make available for inspection by any seller of
Registrable Securities, any underwriter participating in any
disposition pursuant to such registration statement, and any
attorney or accountant retained by any such seller or
underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the
Company's officers and directors to supply all information
reasonably requested by any such seller, underwriter, attorney
or accountant in connection with such registration statement;
(h) Furnish to each selling Holder upon request a
signed counterpart, addressed to each such selling Holder, of
(i) an opinion of counsel for the Company,
dated the effective date of the registration statement
in form reasonably acceptable to the Company and such
counsel, and
(ii) "comfort" letters signed by the
Company's independent public accountants who have
examined and reported on the Company's financial
statements included in the registration statement, to
the extent permitted by the standards of the American
Institute of Certified Public Accountants, covering such
matters as are customarily covered in opinions of
issuer's counsel and accountants' "comfort" letters
delivered to underwriters in underwritten public
offerings of securities;
(i) Furnish to each selling Holder upon request a
copy of all documents filed with and all correspondence from or
to the Commission in connection with any such offering; and
(j) Make available to its security holders, as soon
as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen
months, beginning with the first month after the effective date
of the Registration Statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act.
4.2 It shall be a condition precedent to the obligations of
the Company to take any action pursuant to this Agreement that the Holders
proposing to register Registrable Securities shall furnish to the Company such
information regarding themselves, the Registrable Securities held by them, and
their intended method of distribution of such Registrable Securities as the
Company shall reasonably request and as shall be required in connection with the
action to be taken by the Company.
4.3 In connection with the preparation and filing of each
registration statement under this Agreement, the Company will give the Holders
on whose behalf such Registrable Securities are to be registered and their
underwriters, if any, and their respective counsel and accountants, the
opportunity to review such registration statement, each prospectus included
therein or filed with the Commission, and each amendment thereof or supplement
thereto, and will give each such Holder such access to the Company's books and
records and such opportunities to discuss the business of the Company with its
officers, its counsel and the independent public accountants who have certified
the Company's financial statements, as shall be necessary, in the opinion of
such Holders or such underwriters or their respective counsel, in order to
conduct a reasonable and diligent investigation within the meaning of the
Securities Act.
4.4 Notwithstanding anything to the contrary contained in
this Agreement, the Company shall have no obligation, and the Holders shall have
no right, to include any Registrable Securities in the registration under the
Securities Act effected pursuant to the Current SB-2.
5. INDEMNIFICATION.
5.1 INDEMNIFICATION BY THE COMPANY. The Company will
indemnify each Holder, each of its officers, employees, agents, directors and
partners (including partners of partners and shareholders of such partners), and
each person controlling (within the meaning of the Securities Act) such Holder,
with respect to which registration, qualification or compliance has been
effected pursuant to this Agreement, and each underwriter, if any, and each
Person who controls any underwriter, against all claims, losses, damages and
liabilities (or actions, proceedings or settlements in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any prospectus, offering circular or other document
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of the Securities Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification or
compliance, and will reimburse each such Holder, each of its officers,
employees, agents, directors and partners (including partners of partners and
shareholders of such partners), and each person controlling (within the meaning
of the Securities Act) such Holder, each such underwriter and each Person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating and defending or settling any such
claim, loss, damage, liability or
action as the same are incurred, PROVIDED that the Company will not be liable in
any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission made in
reliance upon and based upon written information furnished to the Company by
such Holder or underwriter and stated to be specifically for use therein.
5.2 INDEMNIFICATION BY THE HOLDERS. Each Holder will, if
Registrable Securities held by him are included in the securities as to which
such registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers and each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company (other than such Holder) or such underwriter within the
meaning of the Securities Act and the rules and regulations thereunder, each
other such Holder and each of their officers, directors and partners, and each
Person controlling such Holder or other stockholder, against all claims, losses,
damages, expenses and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained, on the effective date thereof, in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company, each of its directors and officers, each underwriter or control
Person, each other Holder and each of their officers, directors and partners and
each Person controlling such Holder or other stockholder for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder and
stated to be specifically for use therein; PROVIDED, HOWEVER, that in no event
shall the liability of any Holder for indemnification under this Section 5 in
its capacity as a seller of Registrable Securities exceed the amount equal to
the proceeds to such Holder of the securities sold in any such registration; and
PROVIDED FURTHER, however, that no selling Holder shall be required to indemnify
any Person against any liability arising from any untrue or misleading statement
or omission contained in any preliminary prospectus if such deficiency is
corrected in the final prospectus or for any liability which arises out of the
failure of any Person to deliver a prospectus as required by the Securities Act.
5.3 NOTICES OF CLAIMS, PROCEDURES, ETC. Each party entitled
to indemnification under this Section 5 (the "INDEMNIFIED PARTY") shall give
notice to the party required to provide indemnification (the "INDEMNIFYING
PARTY") promptly after such Indemnified Party has actual knowledge of any claim
as to which indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom,
provided that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not be unreasonably withheld), and the
Indemnified Party may participate in such defense at the Indemnified Party's
sole expense, and provided further that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under
this Section 5 unless such failure is prejudicial to the ability of Indemnifying
Party to defend such claim or action. Notwithstanding the foregoing, such
Indemnified Party shall have the right to employ its own counsel in any such
litigation, proceeding or other action if (i) the employment of such counsel has
been authorized by the Indemnifying Party, in its sole and absolute discretion,
or (ii) the named parties in any such claims (including any impleaded parties)
include any such Indemnified Party and the Indemnified Party and the
Indemnifying Party shall have been advised in writing (in suitable detail) by
counsel to the Indemnified Party either (A) that there may be one or more legal
defenses available to such Indemnified Party which are different from or
additional to those available to the Indemnifying Party, or (B) that there is a
conflict of interest by virtue of the Indemnified Party and the Indemnifying
Parties having common counsel, in any of which events, the legal fees and
expenses of a single counsel for all Indemnified Parties with respect to each
such claim, defense thereof, or counterclaims thereto shall be borne by
Indemnifying Party. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall cooperate to the extent reasonably
required and furnish such information regarding itself or the claim in question
as an Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim and litigation
resulting therefrom.
6. INFORMATION BY HOLDER. Each Holder of Registrable Securities
shall furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
7. TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to
cause the Company to register securities granted by the Company under this
Agreement may be transferred or assigned by a Holder to a transferee or assignee
of any Registrable Securities; provided that the Company is given written notice
at or prior to the time of said transfer or assignment, stating the name and
address of said transferee or assignee and identifying the securities with
respect to which such registration rights are being transferred or assigned; and
provided further that the transferee or assignee of such rights assumes in
writing the obligations of a Holder under this Agreement to the Company and
other Holders in effect at the time of transfer under all effective agreements.
8. EXCHANGE ACT COMPLIANCE. So long as the Company remains subject
to the reporting requirements of the Exchange Act, the Company shall file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the Commission thereunder, and will
take all actions reasonably necessary to enable holders of Registrable
Securities to sell such securities without registration under the Securities Act
within the limitation of the provisions of (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, (b) Rule 144A under the
Securities Act, as such Rule may be amended from time to time, if applicable or
(c) any similar rules or regulations hereunder adopted by the Commission. Upon
the request of any Holder of Registrable Securities, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
9. NO CONFLICT OF RIGHTS. Without the consent of holders of
fifty-one (51%) percent of the Registrable Securities, the Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the Holders in this Agreement. Without
limiting the generality of the foregoing, the Company will not hereafter enter
into or modify any agreement with respect to its securities which grants, or
modifies any existing agreement with respect to its securities to grant, to a
holder of its securities in connection with an incidental registration of such
securities equal or higher priority to the rights granted to the Holders under
Section 2 of this Agreement. The Company hereby represents and warrants to each
Holder that the execution, delivery or performance of this Agreement does not
(including with the passage of time) (i) constitute a breach or an event of
default under any Existing Rights Agreement and any other agreement between the
Company and any Other Stockholder, or (ii) cause or trigger a right of
termination or right of acceleration under any such agreement.
10. BENEFITS OF AGREEMENT; SUCCESSORS AND ASSIGNS. This Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns, legal representatives and heirs.
Except as provided in Section 7 above, this Agreement does not create, and shall
not be construed as creating, any rights enforceable by any other Person.
11. COMPLETE AGREEMENT. This Agreement constitutes the complete
understanding among the parties with respect to its subject matter and
supersedes all existing agreements and understandings, whether oral or written,
among them. No alteration or modification of any provisions of this Agreement
shall be valid unless made in writing and signed, on the one hand, by the
Holders of a majority of the Registrable Securities then outstanding and, on the
other, by the Company.
12. SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
13. NOTICES. All notices, offers, acceptances and other
communications required or permitted to be given or to otherwise be made to any
party to this Agreement shall be deemed to be sufficient if contained in a
written instrument delivered by hand, first class mail (registered or certified,
return receipt requested), telecopier or overnight air courier guaranteeing next
day delivery, if to the Company, at 1140 Pearl Street, Boulder, Colorado 80302,
Attention: Chief Financial Officer, with a copy to Pryor Cashman Sherman & Flynn
LLP, 410 Park Avenue, New York, New York 10022, Attention: Eric M. Hellige,
Esq., and if to any Holder, to the address listed on Schedule A attached hereto
or at such other address as may have been furnished the Company in writing.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and the next business
day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery. Any party may change the address to which each
such notice or communication shall be sent by giving written notice to the other
parties of such new address in the manner provided herein for giving notice.
14. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware
without giving effect to the provisions, policies or principles thereof
respecting conflict or choice of laws.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts each of which shall be deemed an original but all of which taken
together shall constitute one and the same agreement.
16. SEVERABILITY. Any provision of this Agreement which is
determined to be illegal, prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such illegality,
prohibition or unenforceability without invalidating the remaining provisions
hereof which shall be severable and enforceable according to their terms and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties have signed this Registration Rights
Agreement as of the date first set forth above.
FRONT PORCH DIGITAL INC.
By: /s/ Michael Knaisch
---------------------------------
Name: Michael Knaisch
Title: Chief Executive Officer
IN WITNESS WHEREOF, the parties have signed this Registration Rights
Agreement as of the date first set forth above.
FORMER MSI STOCKHOLDERS
PROVIDENCE EQUITY PARTNERS III, L.P.
By: Providence Equity GP III L.P.,
its general partner
By: Providence Equity Partners III LLC,
its general partner
By: /s/ Mark Masiello
-----------------------------------
Name: Mark Masiello
Title:
PROVIDENCE EQUITY OPERATING
PARTNERS III, L.P.
By: Providence Equity GP III, L.P.,
its general partner
By: Providence Equity Partners III LLC,
its general partner
By: /s/ Mark Masiello
-----------------------------------
Name: Mark Masiello
Title:
IN WITNESS WHEREOF, the parties have signed this Registration Rights
Agreement as of the date first set forth above.
FIRST UNION CAPITAL PARTNERS, LLC
By: /s/ Sean M. Smith
-----------------------------------
Name: Sean M. Smith
Title: Principal
SCHEDULE A
NAMES AND ADDRESSES OF FORMER MSI STOCKHOLDERS
PROVIDENCE EQUITY PARTNERS III, L.P.
PROVIDENCE EQUITY OPERATING PARTNERS III, L.P.
c/o Providence Equity
50 Kennedy Plaza
Providence, Rhode Island 02903
Attention: Mr. Mark Masiello
FIRST UNION CAPITAL PARTNERS, LLC
301 S. College Street
Charlotte, North Carolina 28288
Attention: Mr. Sean Smith