Exhibit 10.7
FUNDS ESCROW AGREEMENT
This Agreement (this "Agreement") is dated as of the 13th day of May,
2004 among Front Porch Digital, Inc., a Nevada corporation (the "COMPANY"),
Laurus Master Fund, Ltd. (the "PURCHASER"), and Loeb & Loeb LLP (the "ESCROW
AGENT"):
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Purchaser has advised the Escrow Agent that (a) the
Company and the Purchaser have entered into a Securities Purchase Agreement (the
"PURCHASE AGREEMENT") for the sale by the Company to the Purchaser of a secured
convertible term note (the "TERM NOTE"), (b) the Company has issued to the
Purchaser a common stock purchase warrant (the "TERM NOTE WARRANT") in
connection with the issuance of the Term Note, and (c) the Company and the
Purchaser have entered into a Registration Rights Agreement covering the
registration of the Company's common stock underlying the Term Note and the Term
Note Warrant (the "TERM NOTE REGISTRATION RIGHTS AGREEMENT");
WHEREAS, the Company and the Purchaser wish the Purchaser to deliver to
the Escrow Agent copies of the Documents (as hereafter defined) and the Escrowed
Payment (as hereafter defined) to be held and released by Escrow Agent in
accordance with the terms and conditions of this Agreement; and
WHEREAS, the Escrow Agent is willing to serve as escrow agent pursuant
to the terms and conditions of this Agreement;
NOW THEREFORE, the parties agree as follows:
ARTICLE I
INTERPRETATION
1.1 DEFINITIONS. Whenever used in this Agreement, the following
terms shall have the meanings set forth below.
(a) "Agreement" means this Agreement, as amended, modified
and/or supplemented from time to time by written agreement among the parties
hereto.
(b) "Closing Payment" means the closing payment to be paid to
Laurus Capital Management, LLC, the fund manager, as set forth on Schedule A
hereto.
(c) "Documents" means copies of the Purchase Agreement, the
Term Note, the Term Note Warrant and the Term Note Registration Rights.
(d) "Escrowed Payment" means $5,000,000.
1.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto with respect to the matters contained herein
and supersedes all prior agreements, understandings, negotiations and
discussions of the parties, whether oral or written. There are no warranties,
representations and other agreements made by the parties in
connection with the subject matter hereof except as specifically set forth in
this Agreement.
1.3 EXTENDED MEANINGS. In this Agreement words importing the
singular number include the plural and vice versa; words importing the masculine
gender include the feminine and neuter genders. The word "person" includes an
individual, body corporate, partnership, trustee or trust or unincorporated
association, executor, administrator or legal representative.
1.4 WAIVERS AND AMENDMENTS. This Agreement may be amended,
modified, superseded, cancelled, renewed or extended, and the terms and
conditions hereof may be waived, in each case only by a written instrument
signed by all parties hereto, or, in the case of a waiver, by the party waiving
compliance. Except as expressly stated herein, no delay on the part of any party
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any right, power or
privilege hereunder preclude any other or future exercise of any other right,
power or privilege hereunder.
1.5 HEADINGS. The division of this Agreement into articles,
sections, subsections and paragraphs and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
1.6 LAW GOVERNING THIS AGREEMENT; CONSENT TO JURISDICTION. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York without regard to principles of conflicts of laws. With
respect to any suit, action or proceeding relating to this Agreement or to the
transactions contemplated hereby ("Proceedings"), each party hereto irrevocably
submits to the exclusive jurisdiction of the courts of the County of New York,
State of New York and the United States District court located in the county of
New York in the State of New York. Each party hereto hereby irrevocably and
unconditionally (a) waives trial by jury in any Proceeding relating to this
Agreement and for any related counterclaim and (b) waives any objection which it
may have at any time to the laying of venue of any Proceeding brought in any
such court, waives any claim that such Proceedings have been brought in an
inconvenient forum and further waives the right to object, with respect to such
Proceedings, that such court does not have jurisdiction over such party. In the
event that any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, then the remainder of this
Agreement shall not be affected and shall remain in full force and effect.
1.7 CONSTRUCTION. Each party acknowledges that its legal counsel
participated in the preparation of this Agreement and, therefore, stipulates
that the rule of construction that ambiguities are to be resolved against the
drafting party shall not be applied in the interpretation of this Agreement to
favor any party against the other.
ARTICLE II
APPOINTMENT OF AND DELIVERIES TO THE ESCROW AGENT
2.1 APPOINTMENT. The Company and the Purchaser hereby irrevocably
designate and appoint the Escrow Agent as their escrow agent for the purposes
set forth herein, and the Escrow Agent by its execution and delivery of this
Agreement hereby accepts such appointment under the terms and conditions set
forth herein.
2.2 COPIES OF DOCUMENTS TO ESCROW AGENT. On or about the date
hereof, the Purchaser shall deliver to the Escrow Agent copies of the Documents
executed by the Company to the extent it is a party thereto.
2.3 DELIVERY OF ESCROWED PAYMENT TO ESCROW AGENT. On or about the
date hereof, the Purchaser shall deliver to the Escrow Agent the Escrowed
Payment.
2.4 INTENTION TO CREATE ESCROW OVER THE ESCROWED PAYMENT. The
Purchaser and the Company intend that the Escrowed Payment shall be held in
escrow by the Escrow Agent and released from escrow by the Escrow Agent only in
accordance with the terms and conditions of this Agreement.
ARTICLE III
RELEASE OF ESCROW
3.1 RELEASE OF ESCROW. Subject to the provisions of Section 4.2,
the Escrow Agent shall release the Escrowed Payment from escrow as follows:
(a) Promptly following receipt by the Escrow Agent of (i)
copies of the fully executed Documents and this Agreement, (ii) the Escrowed
Payment in immediately available funds, (iii) joint written instructions ("JOINT
INSTRUCTIONS") executed by the Company and the Purchaser setting forth the
payment direction instructions with respect to the Escrowed Payment and (iv)
Escrow Agent's verbal instructions from Xxxxx Grin and/or Xxxxxx Grin (each of
whom is a director of the Purchaser) indicating that all closing conditions
relating to the Documents have been satisfied and directing that the Escrowed
Payment be disbursed by the Escrow Agent in accordance with the Joint
Instructions, then the Escrowed Payment shall be deemed released from escrow and
shall be promptly disbursed in accordance with the Joint Instructions. The Joint
Instructions shall include, without limitation, Escrow Agent's authorization to
retain from the Escrowed Payment Escrow Agent's fee for acting as Escrow Agent
hereunder and the Closing Payment for delivery to Laurus Capital Management, LLC
in accordance with the Joint Instructions.
(b) Upon receipt by the Escrow Agent of a final and
non-appealable judgment, order, decree or award of a court of competent
jurisdiction (a "COURT ORDER") relating to the Escrowed Payment, the Escrow
Agent shall remit the Escrowed Payment in accordance with the Court Order. Any
Court Order shall be accompanied by an opinion of counsel for the party
presenting the Court Order to the Escrow Agent (which opinion shall be
satisfactory to the Escrow Agent) to the effect that the court issuing the
Court Order is a court of competent jurisdiction and that the Court Order is
final and non-appealable.
3.2 ACKNOWLEDGEMENT OF COMPANY AND PURCHASER; DISPUTES. The
Company and the Purchaser acknowledge that the only terms and conditions upon
which the Escrowed Payment is to be released from escrow are as set forth in
Sections 3 and 4 of this Agreement. The Company and the Purchaser reaffirm their
agreement to abide by the terms and conditions of this Agreement with respect to
the release of the Escrowed Payment. Any dispute with respect to the release of
the Escrowed Payment shall be resolved pursuant to Section 4.2 or by written
agreement between the Company and Purchaser.
ARTICLE IV
CONCERNING THE ESCROW AGENT
4.1 DUTIES AND RESPONSIBILITIES OF THE ESCROW AGENT. The Escrow
Agent's duties and responsibilities shall be subject to the following terms and
conditions:
(a) The Purchaser and the Company acknowledge and agree that
the Escrow Agent (i) shall not be required to inquire into whether the
Purchaser, the Company or any other party is entitled to receipt of any Document
or all or any portion of the Escrowed Payment; (ii) shall not be called upon to
construe or review any Document or any other document, instrument or agreement
entered into in connection therewith; (iii) shall be obligated only for the
performance of such duties as are specifically assumed by the Escrow Agent
pursuant to this Agreement; (iv) may rely on and shall be protected in acting or
refraining from acting upon any written notice, instruction, instrument,
statement, request or document furnished to it hereunder and believed by the
Escrow Agent in good faith to be genuine and to have been signed or presented by
the proper person or party, without being required to determine the authenticity
or correctness of any fact stated therein or the propriety or validity or the
service thereof; (v) may assume that any person purporting to give notice or
make any statement or execute any document in connection with the provisions
hereof has been duly authorized to do so; (vi) shall not be responsible for the
identity, authority or rights of any person, firm or company executing or
delivering or purporting to execute or deliver this Agreement or any Document or
any funds deposited hereunder or any endorsement thereon or assignment thereof;
(vii) shall not be under any duty to give the property held by Escrow Agent
hereunder any greater degree of care than Escrow Agent gives its own similar
property; and (viii) may consult counsel satisfactory to Escrow Agent
(including, without limitation, Loeb & Loeb, LLP or such other counsel of Escrow
Agent's choosing), the opinion of such counsel to be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by Escrow Agent hereunder in good faith and in accordance with the opinion of
such counsel.
(b) The Purchaser and the Company acknowledge that the Escrow
Agent is acting solely as a stakeholder at their request and that the Escrow
Agent shall not be liable for any action taken by Escrow Agent in good faith and
believed by Escrow Agent to be authorized or within the rights or powers
conferred upon Escrow Agent by this Agreement. The Purchaser and the Company
hereby, jointly and severally, indemnify and hold harmless the Escrow Agent
and any of Escrow Agent's partners, employees, agents and representatives from
and against any and all actions taken or omitted to be taken by Escrow Agent or
any of them hereunder and any and all claims, losses, liabilities, costs,
damages and expenses suffered and/or incurred by the Escrow Agent arising in any
manner whatsoever out of the transactions contemplated by this Agreement and/or
any transaction related in any way hereto, including the fees of outside counsel
and other costs and expenses of defending itself against any claims, losses,
liabilities, costs, damages and expenses arising in any manner whatsoever out
the transactions contemplated by this Agreement and/or any transaction related
in any way hereto, except for such claims, losses, liabilities, costs, damages
and expenses incurred by reason of the Escrow Agent's gross negligence or
willful misconduct. The Escrow Agent shall owe a duty only to the Purchaser and
Company under this Agreement and to no other person.
(c) The Purchaser and the Company shall jointly and severally
reimburse the Escrow Agent for its reasonable out-of-pocket expenses (including
counsel fees (which counsel may be Loeb & Loeb LLP or such other counsel of the
Escrow Agent's choosing) incurred in connection with the performance of its
duties and responsibilities hereunder, which shall not (subject to Section
4.1(b)) exceed $1,500.
(d) The Escrow Agent may at any time resign as Escrow Agent
hereunder by giving five (5) business days prior written notice of resignation
to the Purchaser and the Company. Prior to the effective date of resignation as
specified in such notice, the Purchaser and Company will issue to the Escrow
Agent a Joint Instruction authorizing delivery of the Documents and the Escrowed
Payment to a substitute Escrow Agent selected by the Purchaser and the Company.
If no successor Escrow Agent is named by the Purchaser and the Company, the
Escrow Agent may apply to a court of competent jurisdiction in the State of New
York for appointment of a successor Escrow Agent, and deposit the Documents and
the Escrowed Payment with the clerk of any such court and/or otherwise commence
an interpleader or similar action for a determination of where to deposit the
same.
(e) The Escrow Agent does not have and will not have any
interest in the Documents and the Escrowed Payment, but is serving only as
escrow agent, having only possession thereof.
(f) The Escrow Agent shall not be liable for any action taken
or omitted by it in good faith and reasonably believed by it to be authorized
hereby or within the rights or powers conferred upon it hereunder, nor for
action taken or omitted by it in good faith, and in accordance with advice of
counsel (which counsel may be Loeb & Loeb, LLP or such other counsel of the
Escrow Agent's choosing), and shall not be liable for any mistake of fact or
error of judgment or for any acts or omissions of any kind except to the extent
any such liability arose from its own willful misconduct or gross negligence.
(g) This Agreement sets forth exclusively the duties of the
Escrow Agent with respect to any and all matters pertinent thereto and no
implied duties or obligations shall be read into this Agreement.
(h) The Escrow Agent shall be permitted to act as counsel for
the Purchaser or the Company, as the case may be, in any dispute as to the
disposition of the Documents and the Escrowed Payment, in any other dispute
between the Purchaser and the Company, whether or not the Escrow Agent is then
holding the Documents and/or the Escrowed Payment and continues to act as the
Escrow Agent hereunder.
(i) The provisions of this Section 4.1 shall survive the
resignation of the Escrow Agent or the termination of this Agreement.
4.2 DISPUTE RESOLUTION; JUDGMENTS. Resolution of disputes arising
under this Agreement shall be subject to the following terms and conditions:
(a) If any dispute shall arise with respect to the delivery,
ownership, right of possession or disposition of the Documents and/or the
Escrowed Payment, or if the Escrow Agent shall in good faith be uncertain as to
its duties or rights hereunder, the Escrow Agent shall be authorized, without
liability to anyone, to (i) refrain from taking any action other than to
continue to hold the Documents and the Escrowed Payment pending receipt of a
Joint Instruction from the Purchaser and Company, (ii) commence an interpleader
or similar action, suit or proceeding for the resolution of any such dispute;
and/or (iii) deposit the Documents and the Escrowed Payment with any court of
competent jurisdiction in the State of New York, in which event the Escrow Agent
shall give written notice thereof to the Purchaser and the Company and shall
thereupon be relieved and discharged from all further obligations pursuant to
this Agreement. The Escrow Agent may, but shall be under no duty to, institute
or defend any legal proceedings which relate to the Documents and the Escrowed
Payment. The Escrow Agent shall have the right to retain counsel if it becomes
involved in any disagreement, dispute or litigation on account of this Agreement
or otherwise determines that it is necessary to consult counsel which such
counsel may be Loeb & Loeb LLP or such other counsel of the Escrow Agent's
choosing.
(b) The Escrow Agent is hereby expressly authorized to comply
with and obey any Court Order. In case the Escrow Agent obeys or complies with a
Court Order, the Escrow Agent shall not be liable to the Purchaser and Company
or to any other person, firm, company or entity by reason of such compliance.
ARTICLE V
GENERAL MATTERS
5.1 TERMINATION. This escrow shall terminate upon disbursement of
the Escrowed Payment in accordance with the terms of this Agreement or earlier
upon the agreement in writing of the Purchaser and Company or resignation of the
Escrow Agent in accordance with the terms hereof.
5.2 NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given one (1) day after being sent by telecopy (with
copy delivered by overnight courier, regular or certified mail):
(a) If to the Company, to: Front Porch Digital, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to the Purchaser, to: LAURUS MASTER FUND, LTD.
c/o Ironshore Corporate Services
Ltd.
X.X. Xxx 0000 G.T., Queensgate
House, South Church Street
Grand Cayman, Cayman Islands
Fax: 000-000-0000
Attention: Xxxx Xxxxxx, Esq.
(c) If to the Escrow Agent, to: Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
or to such other address as any of them shall give to the others by notice made
pursuant to this Section 5.2.
5.3 INTEREST. The Escrowed Payment shall not be held in an
interest bearing account nor will interest be payable in connection therewith.
5.4 ASSIGNMENT; BINDING AGREEMENT. Neither this Agreement nor any
right or obligation hereunder shall be assignable by any party without the prior
written consent of the other parties hereto. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective legal
representatives, successors and assigns.
5.5 INVALIDITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal, or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
5.6 COUNTERPARTS/EXECUTION. This Agreement may be executed in any
number of counterparts and by different signatories hereto on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same agreement. This
Agreement may be executed by facsimile transmission.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first above written.
COMPANY:
FRONT PORCH DIGITAL, INC.
By:/s/ Xxxxxx X. Xxxxxxx III
-------------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: Chairman
PURCHASER:
LAURUS MASTER FUND, LTD.
By: /s/ Xxxxx Grin
-------------------------------
Name: Xxxxx Grin
Title: Director
ESCROW AGENT:
LOEB & LOEB LLP
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title:
SCHEDULE A TO FUNDS ESCROW AGREEMENT
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PURCHASER PRINCIPAL NOTE AMOUNT
---------------------------------------------------------------------------------------------------------------------
LAURUS MASTER FUND, LTD., Term Note in an aggregate principal amount of
c/o Ironshore Corporate Services Ltd., $5,000,000
X.X. Xxx 0000 G.T., Queensgate House,
South Church Street, Grand Cayman,
Cayman Islands
Fax: 000-000-0000
---------------------------------------------------------------------------------------------------------------------
TOTAL $5,000,000
---------------------------------------------------------------------------------------------------------------------
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FUND MANAGER CLOSING PAYMENT
---------------------------------------------------------------------------------------------------------------------
LAURUS CAPITAL MANAGEMENT, L.L.C. Closing payment payable in connection with
investment by Laurus Master Fund, Ltd. for
000 Xxxxx Xxxxxx, 00xx Xxxxx which Laurus Capital Management, L.L.C. is the
Manager.
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
---------------------------------------------------------------------------------------------------------------------
TOTAL $195,000
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WARRANTS
---------------------------------------------------------------------------------------------------------------------
WARRANT RECIPIENT WARRANTS IN CONNECTION WITH OFFERING
---------------------------------------------------------------------------------------------------------------------
LAURUS MASTER FUND, LTD. Term Note Warrant exercisable into 4,435,500
shares of common stock of the Company issuable
A Cayman Island corporation in connection with the Term Note
c/o Ironshore Corporate Services Ltd.
X.X. Xxx 0000 G.T.
Xxxxxxxxxx Xxxxx, Xxxxx Xxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
Fax: 000-000-0000
---------------------------------------------------------------------------------------------------------------------
TOTAL WARRANTS EXERCISABLE INTO UP TO 4,435,500
SHARES OF COMMON STOCK OF THE COMPANY
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