REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this “Agreement”) is made and entered into as of
December 28, 2007, by and between INCENTRA SOLUTIONS, INC., a Nevada corporation
(the “Company”), and Valens U.S. SPV I, LLC (the “Purchaser”).
This
Agreement is made pursuant to the Security Agreement, dated as of February
6,
2006, by and among the Company, each Eligible Subsidiary set forth therein
(collectively with the Company, the “Companies”), Laurus Master Fund, Ltd.
(“Laurus”) and the Purchaser, as partial assignee of Laurus (as amended,
modified or supplemented from time to time, the “Security Agreement”), as such
Security Agreement and Ancillary Agreements (as defined in the Security
Agreement) have been assigned in part by Laurus to Purchaser pursuant to that
certain Assignment and Amendment Agreement dated as of the date hereof among
Laurus, Valens, the Company and the Companies (the “Assignment
Agreement”).
The
Company and the Purchaser hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in
the
Security Agreement shall have the meanings given such terms in the Security
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
“Assignment
Agreement”
shall
have the meaning set forth in the second paragraph of this
Agreement.
“Commission”
means
the Securities and Exchange Commission.
“Common
Stock”
means
shares of the Company’s common stock, par value $0.001 per share.
“Effectiveness
Date”
means
(i) with respect to the initial Registration Statement required to be filed
hereunder, a date no later than one hundred eighty (180) days following the
date
hereof and (ii) with respect to each additional Registration Statement required
to be filed hereunder, a date no later than thirty (30) days following the
applicable Filing Date.
“Effectiveness
Period”
has
the
meaning set forth in Section 2(a).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and any successor
statute.
“Filing
Date”
means,
with respect to (i) the shares of Common Stock issuable upon exercise of the
Warrant issued to Purchaser, a date no later than one hundred five (105) days
following the date hereof, (ii) the shares of Common Stock issuable upon the
exercise of any other Warrant issued to Purchaser, the date which is thirty
(30)
days after the date of the issuance of such Warrant, and (iii) the shares of
Common Stock issuable to the Holder as a result of adjustments to the
Exercise
Price
made
pursuant to the Warrant or otherwise, thirty (30) days after the occurrence
such
event or the date of the adjustment of the Exercise Price.
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“Holder”
or
“Holders”
means
the Purchaser or any of its affiliates or transferees to the extent any of
them
hold Registrable Securities, other than those purchasing Registrable Securities
in a market transaction.
“Indemnified
Party”
has
the
meaning set forth in Section 5(c).
“Indemnifying
Party”
has
the
meaning set forth in Section 5(c).
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
“Prospectus”
means
the prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A promulgated under the Securities Act), as amended or supplemented
by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Registration Statement,
and
all other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Registrable
Securities”
means
the shares of Common Stock issued upon the exercise of the Warrants.
“Registration
Statement”
means
each registration statement required to be filed hereunder, including the
Prospectus therein, amendments and supplements to such registration statement
or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
“Rule
144”
means
Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Rule
415”
means
Rule 415 promulgated by the Commission pursuant to the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission having substantially the same effect as
such
Rule.
“Securities
Act”
means
the Securities Act of 1933, as amended, and any successor statute.
“Security
Agreement”
shall
have the meaning set forth in the second paragraph of this
Agreement.
“Trading
Market”
means
any of the NASD Over the Counter Bulletin Board, NASDAQ Capital Market, the
NASDAQ National Market, the American Stock Exchange or the New York Stock
Exchange.
“Warrants”
means
the Common Stock purchase warrants issued in connection with the Assignment
Agreement, whether on the date hereof or thereafter.
2. Registration.
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(a)
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On
or prior to each Filing Date the Company shall prepare and file with
the
Commission a Registration Statement covering the Registrable Securities
for a selling stockholder resale offering to be made on a continuous
basis
pursuant to Rule 415. The Registration Statement shall be on Form
SB-2 or
Form S-3 (except if the Company is not then eligible to register
for
resale the Registrable Securities on such Forms, in which case such
registration shall be on another appropriate form in accordance herewith).
The Company shall cause the Registration Statement to become effective
and
remain effective as provided herein. The Company shall use its reasonable
commercial efforts to cause each Registration Statement to be declared
effective under the Securities Act as promptly as possible after
the
filing thereof, but in any event no later than the Effectiveness
Date. The
Company shall use its reasonable commercial efforts to keep each
Registration Statement continuously effective under the Securities
Act
until the date which is the earlier date of when (i) all Registrable
Securities covered by such Registration Statement have been sold,
or (ii)
all Registrable Securities covered by such Registration Statement
may be
sold immediately without registration under the Securities Act and
without
volume restrictions pursuant to Rule 144(k), as determined by the
counsel
to the Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Company’s transfer agent and the affected
Holders (each, an “Effectiveness
Period”).
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(b)
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Within
three business days of the Effectiveness Date, the Company shall
cause its
counsel to issue a blanket opinion substantially in the form attached
hereto as Exhibit A, to the transfer agent stating that the shares
are
subject to an effective registration statement and can be reissued
free of
restrictive legend upon notice of a sale by the Purchaser and confirmation
by the Purchaser that it has complied with the prospectus delivery
requirements, provided that the Company or such counsel has not advised
the transfer agent orally or in writing that the opinion has been
withdrawn. Copies of the blanket opinion required by this Section
2(b)
shall be delivered to the Purchaser within the time frame set forth
above.
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3. Registration
Procedures.
If and
whenever the Company is required by the provisions hereof to effect the
registration of any Registrable Securities under the Securities Act, the Company
will, as expeditiously as possible:
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(a)
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prepare
and file with the Commission the Registration Statement with respect
to
such Registrable Securities, respond as promptly as possible to any
comments received from the Commission, and use its reasonable commercial
efforts to cause such Registration Statement to become and remain
effective for the Effectiveness Period with respect thereto, and
promptly
provide to the Purchaser copies of all filings and Commission letters
of
comment relating thereto;
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(b)
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prepare
and file with the Commission such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith
as
may be necessary to comply with the provisions of the Securities
Act with
respect to the disposition of all Registrable Securities covered
by such
Registration Statement and to keep such Registration Statement effective
until the expiration of the Effectiveness Period applicable to such
Registration Statement;
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(c)
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furnish
to the Purchaser such number of copies of the Registration Statement
and
the Prospectus included therein (including each preliminary Prospectus)
as
the Purchaser reasonably may request to facilitate the public sale
or
disposition of the Registrable Securities covered by such Registration
Statement;
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(d)
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use
its reasonable commercial efforts to register or qualify the Purchaser’s
Registrable Securities covered by such Registration Statement under
the
securities or “blue sky” laws of such jurisdictions within the United
States as the Purchaser may reasonably request, provided, however,
that
the Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general
service
of process in any such
jurisdiction;
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(e)
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list
the Registrable Securities covered by such Registration Statement
with any
securities exchange on which the Common Stock of the Company is then
listed;
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(f)
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immediately
notify the Purchaser at any time when a Prospectus relating thereto
is
required to be delivered under the Securities Act, of the happening
of any
event of which the Company has knowledge as a result of which the
Prospectus contained 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 in light of the circumstances then
existing; and
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(g)
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make
available for inspection by the Purchaser and any attorney, accountant
or
other agent retained by the Purchaser, all publicly available,
non-confidential financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company’s officers,
directors and employees to supply all publicly available, non-confidential
information reasonably requested by the attorney, accountant or agent
of
the Purchaser.
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4. Registration
Expenses.
All
expenses relating to the Company’s compliance with Sections 2 and 3 hereof,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel and independent public accountants
for the Company, fees and expenses (including reasonable counsel fees) incurred
in connection with complying with state securities or “blue sky” laws, fees of
the NASD, transfer taxes, fees of transfer agents and registrars, fees of,
and
disbursements incurred by, one counsel for the Holders, are called “Registration
Expenses”. All selling commissions applicable to the sale of Registrable
Securities, including any fees and disbursements of any special counsel to
the
Holders beyond those included in Registration Expenses, are called “Selling
Expenses.” The Company shall only be responsible for all Registration
Expenses.
5. Indemnification.
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(a)
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In
the event of a registration of any Registrable Securities under the
Securities Act pursuant to this Agreement, the Company will indemnify
and
hold harmless each Holder, and its officers, directors and each other
person, if any, who controls each Holder within the meaning of the
Securities Act, against any losses, claims, damages or liabilities,
joint
or several, to which such Holder, or such persons may become subject
under
the Securities Act or otherwise, insofar as such losses, claims,
damages
or liabilities (or actions in respect thereof) arise out of or are
based
upon any untrue statement or alleged untrue statement of any material
fact
contained in any Registration Statement under which such Registrable
Securities were registered under the Securities Act pursuant to this
Agreement, any preliminary Prospectus or final Prospectus contained
therein, or any amendment or supplement thereof, or arise out of
or are
based upon the 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 such Holder, and each
such
person for any reasonable legal or other expenses incurred by them
in
connection with investigating or defending any such loss, claim,
damage,
liability or action; provided, however, that the Company will not
be
liable in any such case if and to the extent that any such loss,
claim,
damage or liability arises out of or is based upon an untrue statement
or
alleged untrue statement or omission or alleged omission so made
in
conformity with information furnished by or on behalf of the Purchaser
or
any such person in writing specifically for use in any such
document.
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(b)
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In
the event of a registration of the Registrable Securities under the
Securities Act pursuant to this Agreement, the Purchaser will indemnify
and hold harmless the Company, and its officers, directors and each
other
person, if any, who controls the Company within the meaning of the
Securities Act, against all losses, claims, damages or liabilities,
joint
or several, to which the Company or such persons may become subject
under
the Securities Act or otherwise, insofar as such losses, claims,
damages
or liabilities (or actions in respect thereof) arise out of or are
based
upon any untrue statement or alleged untrue statement of any material
fact
which was furnished in writing by the Purchaser to the Company expressly
for use in (and such information is contained in) the Registration
Statement under which such Registrable Securities were registered
under
the Securities Act pursuant to this Agreement, any preliminary Prospectus
or final Prospectus contained therein, or any amendment or supplement
thereof, or arise out of or are based upon the 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 and each such person for any reasonable legal
or
other expenses incurred by them in connection with investigating
or
defending any such loss, claim, damage, liability or action, provided,
however, that the Purchaser will be liable in any such case if and
only to
the extent that any such loss, claim, damage or liability arises
out of or
is based upon an untrue statement or alleged untrue statement or
omission
or alleged omission so made in conformity with information furnished
in
writing to the Company by or on behalf of the Purchaser specifically
for
use in any such document. Notwithstanding the provisions of this
paragraph, the Purchaser shall not be required to indemnify any person
or
entity in excess of the amount of the aggregate net proceeds received
by
the Purchaser in respect of Registrable Securities in connection
with any
such registration under the Securities
Act.
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(c)
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Promptly
after receipt by a party entitled to claim indemnification hereunder
(an
“Indemnified Party”) of notice of the commencement of any action, such
Indemnified Party shall, if a claim for indemnification in respect
thereof
is to be made against a party hereto obligated to indemnify such
Indemnified Party (an “Indemnifying Party”), notify the Indemnifying Party
in writing thereof, but the omission so to notify the Indemnifying
Party
shall not relieve it from any liability which it may have to such
Indemnified Party other than under this Section 5(c) and shall only
relieve it from any liability which it may have to such Indemnified
Party
under this Section 5(c) if and to the extent the Indemnifying Party
is
prejudiced by such omission. In case any such action shall be brought
against any Indemnified Party and it shall notify the Indemnifying
Party
of the commencement thereof, the Indemnifying Party shall be entitled
to
participate in and, to the extent it shall wish, to assume and undertake
the defense thereof with counsel satisfactory to such Indemnified
Party,
and, after notice from the Indemnifying Party to such Indemnified
Party of
its election so to assume and undertake the defense thereof, the
Indemnifying Party shall not be liable to such Indemnified Party
under
this Section 5(c) for any legal expenses subsequently incurred by
such
Indemnified Party in connection with the defense thereof; if the
Indemnified Party retains its own counsel, then the Indemnified Party
shall pay all fees, costs and expenses of such counsel, provided,
however,
that, if the defendants in any such action include both the Indemnified
Party and the Indemnifying Party and the Indemnified Party shall
have
reasonably concluded that there may be reasonable defenses available
to it
which are different from or additional to those available to the
Indemnifying Party or if the interests of the Indemnified Party reasonably
may be deemed to conflict with the interests of the Indemnifying
Party,
the Indemnified Party shall have the right to select one separate
counsel
and to assume such legal defenses and otherwise to participate in
the
defense of such action, with the reasonable expenses and fees of
such
separate counsel and other expenses related to such participation
to be
reimbursed by the Indemnifying Party as incurred.
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(d)
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In
order to provide for just and equitable contribution in the event
of joint
liability under the Securities Act in any case in which either (i)
the
Purchaser, or any officer, director or controlling person of the
Purchaser, makes a claim for indemnification pursuant to this Section
5
but it is judicially determined (by the entry of a final judgment
or
decree by a court of competent jurisdiction and the expiration of
time to
appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding
the fact
that this Section 5 provides for indemnification in such case, or
(ii)
contribution under the Securities Act may be required on the part
of the
Purchaser or such officer, director or controlling person of the
Purchaser
in circumstances for which indemnification is provided under this
Section
5; then, and in each such case, the Company and the Purchaser will
contribute to the aggregate losses, claims, damages or liabilities
to
which they may be subject (after contribution from others) in such
proportion so that the Purchaser is responsible only for the portion
represented by the percentage that the public offering price of its
securities offered by the Registration Statement bears to the public
offering price of all securities offered by such Registration Statement,
provided, however, that, in any such case, (A) the Purchaser will
not be
required to contribute any amount in excess of the public offering
price
of all such securities offered by it pursuant to such Registration
Statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 10(f) of the Act)
will be
entitled to contribution from any person or entity who was not guilty
of
such fraudulent misrepresentation.
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6. Representations
and Warranties.
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(a)
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The
Common Stock of the Company is registered pursuant to Section 12(b)
or
12(g) of the Exchange Act and, except with respect to certain matters
which the Company has disclosed to the Purchaser on Schedule 4.21
to the
Security Agreement, the Company has timely filed all proxy statements,
reports, schedules, forms, statements and other documents required
to be
filed by it under the Exchange Act. The Company has filed its Annual
Report on Form 10-K for its fiscal years ended December 31, 2005
and
December 31, 2006 and its Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 2007, June 30, 2007 and September
30, 2007
(collectively, the “SEC Reports”). To the knowledge of the Company, each
of the SEC Reports was, at the time of its filing, in substantial
compliance with the requirements of its respective form and none
of the
SEC Reports, nor the financial statements (and the notes thereto)
included
in the SEC Reports, as of its respective filing date, contained any
untrue
statement of a material fact or omitted to state a material fact
required
to be stated therein or necessary to make the statements therein,
in light
of the circumstances under which they were made, not misleading.
The
financial statements of the Company included in the SEC Reports comply
as
to form in all material respects with applicable accounting requirements
and the published rules and regulations of the Commission or other
applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with generally accepted
accounting principles (“GAAP”) applied on a consistent basis during the
periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto or (ii) in the case of
unaudited
interim statements, to the extent they may not include footnotes
or may be
condensed) and fairly present in all material respects the financial
condition, the results of operations and the cash flows of the Company
and
its subsidiaries, on a consolidated basis, as of, and for, the periods
presented in each such SEC Report.
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(b)
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The
Common Stock is listed for trading on the NASD Over-the-Counter Bulletin
Board (“OTCBB”) and satisfies all requirements for the continuation of
such listing. The Company has not received any notice that its Common
Stock will be no longer quoted on the OTCBB (except for prior notices
which have been fully remedied) or that the Common Stock does not
meet all
requirements for the continuation of such
listing.
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(c)
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Neither
the Company, nor any of its affiliates, nor any person acting on
its or
their behalf, has directly or indirectly made any offers or sales
of any
security or solicited any offers to buy any security under circumstances
that would cause the offering of the Securities pursuant to the Assignment
Agreement to be integrated with prior offerings by the Company for
purposes of the Securities Act which would prevent the Company from
selling the Common Stock pursuant to Rule 506 under the Securities
Act, or
any applicable exchange-related stockholder approval provisions,
nor will
the Company or any of its affiliates or subsidiaries take any action
or
steps that would cause the offering of the Securities to be integrated
with other offerings (other than such concurrent offerings to the
Purchaser).
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(d)
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The
Warrants and the shares of Common Stock which the Purchaser may acquire
pursuant to the Warrants are all restricted securities under the
Securities Act as of the date of this Agreement. The Company will
not
issue any stop transfer order or other order impeding the sale and
delivery of any of the Registrable Securities at such time as such
Registrable Securities are registered for public sale or an exemption
from
registration is available, except as required by federal or state
securities laws.
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(e)
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The
Company understands the nature of the Registrable Securities issuable
upon
the exercise of the Warrants and recognizes that the issuance of
such
Registrable Securities may have a potential dilutive effect. The
Company
specifically acknowledges that its obligation to issue the Registrable
Securities is binding upon the Company and enforceable regardless
of the
dilution such issuance may have on the ownership interests of other
shareholders of the Company.
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(f)
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Except
for agreements made in the ordinary course of business, there is
no
agreement that has not been filed with the Commission as an exhibit
to a
registration statement or to a form required to be filed by the Company
under the Exchange Act, the breach of which could reasonably be expected
to have a material and adverse effect on the Company and its subsidiaries,
or would prohibit or otherwise interfere with the ability of the
Company
to enter into and perform any of its obligations under this Agreement
in
any material respect.
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(g)
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The
Company will at all times have authorized and reserved a sufficient
number
of shares of Common Stock for the full exercise of the
Warrants.
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7. Miscellaneous.
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(a)
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Remedies.
In the event of a breach by the Company or by a Holder of any of
their
respective obligations under this Agreement, each Holder or the Company,
as the case may be, in addition to being entitled to exercise all
rights
granted by law and under this Agreement, including recovery of damages,
will be entitled to specific performance of its rights under this
Agreement.
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(b)
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No
Piggyback on Registrations.
Except as and to the extent specified on Schedule
7(b)
hereto, neither the Company nor any of its security holders (other
than
the Holders in such capacity pursuant hereto) may include securities
of
the Company in any Registration Statement other than the Registrable
Securities, and the Company shall not after the date hereof enter
into any
agreement providing any such right for inclusion of shares in the
Registration Statement to any of its security holders. Except as
and to
the extent specified on Schedule
7(b)
hereto, the Company has not previously entered into any agreement
granting
any registration rights with respect to any of its securities to
any
Person that have not been fully satisfied.
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(c)
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Compliance.
Each Holder covenants and agrees that it will comply with the prospectus
delivery requirements of the Securities Act as applicable to it in
connection with sales of Registrable Securities pursuant to any
Registration Statement.
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(d)
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Discontinued
Disposition.
Each Holder agrees by its acquisition of such Registrable Securities
that,
upon receipt of a notice from the Company of the occurrence of a
Discontinuation Event (as defined below), such Holder will forthwith
discontinue disposition of such Registrable Securities under the
applicable Registration Statement until such Holder’s receipt of the
copies of the supplemented Prospectus and/or amended Registration
Statement or until it is advised in writing (the “Advice”) by the Company
that the use of the applicable Prospectus may be resumed, and, in
either
case, has received copies of any additional or supplemental filings
that
are incorporated or deemed to be incorporated by reference in such
Prospectus or Registration Statement. The Company may provide appropriate
stop orders to enforce the provisions of this paragraph. For purposes
of
this Agreement, a “Discontinuation Event” shall mean (i) when the
Commission notifies the Company whether there will be a “review” of such
Registration Statement and whenever the Commission comments in writing
on
such Registration Statement (the Company shall provide true and complete
copies thereof and all written responses thereto to each of the Holders);
(ii) any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to such Registration
Statement or Prospectus or for additional information; (iii) the
issuance
by the Commission of any stop order suspending the effectiveness
of such
Registration Statement covering any or all of the Registrable Securities
or the initiation of any Proceedings for that purpose; (iv) the receipt
by
the Company of any notification with respect to the suspension of
the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction, or the initiation or threatening
of any Proceeding for such purpose; and/or (v) the occurrence of
any event
or passage of time that makes the financial statements included in
such
Registration Statement ineligible for inclusion therein or any statement
made in such Registration Statement or Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in
any material respect or that requires any revisions to such Registration
Statement, Prospectus or other documents so that, in the case of
such
Registration Statement or Prospectus, as the case may be, it will
not
contain any untrue statement of a material fact or omit to state
any
material fact required to be stated therein or necessary to make
the
statements therein, in light of the circumstances under which they
were
made, not misleading.
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(e)
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Piggy-Back
Registrations.
If at any time during any Effectiveness Period there is not an effective
Registration Statement covering all of the Registrable Securities
required
to be covered during such Effectiveness Period and the Company shall
determine to prepare and file with the Commission a registration
statement
relating to an offering for its own account or the account of others
under
the Securities Act of any of its equity securities, other than on
Form S-4
or Form S-8 (each as promulgated under the Securities Act) or their
then
equivalents relating to equity securities to be issued solely in
connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee
benefit plans, then the Company shall send to each Holder written
notice
of such determination and, if within fifteen days after receipt of
such
notice, any such Holder shall so request in writing, the Company
shall
include in such registration statement all or any part of such Registrable
Securities such Holder requests to be registered to the extent the
Company
may do so without violating registration rights of others which exist
as
of the date of this Agreement, subject to customary underwriter cutbacks
applicable to all holders of registration rights and subject to obtaining
any required consent of any selling stockholder(s) to such inclusion
under
such registration statement.
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(f)
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Amendments
and Waivers.
The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers
or
consents to departures from the provisions hereof may not be given,
unless
the same shall be in writing and signed by the Company and the Holders
of
the then outstanding Registrable Securities. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof
with
respect to a matter that relates exclusively to the rights of certain
Holders and that does not directly or indirectly affect the rights
of
other Holders may be given by Holders of at least a majority of the
Registrable Securities to which such waiver or consent relates; provided,
however, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions
of the
immediately preceding sentence.
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(g)
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Notices.
Any notice or request hereunder may be given to the Company or the
Purchaser at the respective addresses set forth below or as may hereafter
be specified in a notice designated as a change of address under
this
Section 7(g). Any notice or request hereunder shall be given by registered
or certified mail, return receipt requested, hand delivery, overnight
mail, Federal Express or other national overnight next day carrier
(collectively, “Courier”) or telecopy (confirmed by mail). Notices and
requests shall be, in the case of those by hand delivery, deemed
to have
been given when delivered to any party to whom it is addressed, in
the
case of those by mail or overnight mail, deemed to have been given
three
(3) business days after the date when deposited in the mail or with
the
overnight mail carrier, in the case of a Courier, the next business
day
following timely delivery of the package with the Courier, and, in
the
case of a telecopy, when confirmed. The address for such notices
and
communications shall be as follows:
|
|
If
to the Company:
|
0000
Xxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Chief Financial Officer
Facsimile:
(000) 000-0000
|
|
|
with
a copy to:
|
Law
Offices of Xxxx Xxxx Guest
00
Xxxxxxxxx Xxxx
Xxxxxx,
XX 00000
Attention:
Xxxx Guest, Esq.
Facsimile:
(000) 000-0000
|
|
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If
to a Purchaser:
|
To
the address set forth under such Purchaser name on the signature
pages
hereto.
|
|
|
If
to any other Person who is then the registered
Holder:
|
To
the address of such Holder as it appears in the stock transfer
books of
the Company
|
or
such
other address as may be designated in writing hereafter in accordance with
this
Section 7(g) by such Person.
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(h)
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Successors
and Assigns.
This Agreement shall inure to the benefit of and be binding upon
the
successors and permitted assigns of each of the parties and shall
inure to
the benefit of each Holder. The Company may not assign its rights
or
obligations hereunder without the prior written consent of each Holder.
Each Holder may assign its respective rights hereunder in the manner
and
to the Persons as permitted under the Warrant, the Security Agreement
and
the Ancillary Agreements (as defined in the Security
Agreement).
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(i)
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Execution
and Counterparts.
This Agreement may be executed in any number of counterparts, each
of
which when so executed shall be deemed to be an original and, all
of which
taken together shall constitute one and the same agreement. In the
event
that any signature is delivered by facsimile transmission, such signature
shall create a valid binding obligation of the party executing (or
on
whose behalf such signature is executed) the same with the same force
and
effect as if such facsimile signature were the original
thereof.
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(j)
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Governing
Law, Jurisdiction and Waiver of Jury Trial.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. The Company hereby consents and agrees that the
state or
federal courts located in the County of New York, State of New York
shall
have exclusive jurisdiction to hear and determine any Proceeding
between
the Company, on the one hand, and the Purchaser, on the other hand,
pertaining to this Agreement or to any matter arising out of or related
to
this Agreement; provided,
that the Purchaser and the Company acknowledge that any appeals from
those
courts may have to be heard by a court located outside of the County
of
New York, State of New York, and further provided,
that nothing in this Agreement shall be deemed or operate to preclude
the
Purchaser from bringing a Proceeding in any other jurisdiction to
collect
the obligations, to realize on the Collateral or any other security
for
the obligations, or to enforce a judgment or other court order in
favor of
the Purchaser. The Company expressly submits and consents in advance
to
such jurisdiction in any Proceeding commenced in any such court,
and the
Company hereby waives any objection which it may have based upon
lack of
personal jurisdiction, improper venue or forum non conveniens.
The Company hereby waives personal service of the summons, complaint
and
other process issued in any such Proceeding and agrees that service
of
such summons, complaint and other process may be made by registered
or
certified mail addressed to the Company at the address set forth
in
Section 7(g) and that service so made shall be deemed completed upon
the
earlier of the Company’s actual receipt thereof or three (3) days after
deposit in the U.S. mails, proper postage prepaid. The parties hereto
desire that their disputes be resolved by a judge applying such applicable
laws. Therefore, to achieve the best combination of the benefits
of the
judicial system and of arbitration, the parties hereto waive all
rights to
trial by jury in any Proceeding brought to resolve any dispute, whether
arising in contract, tort, or otherwise between the Purchaser and/or
the
Company arising out of, connected with, related or incidental to
the
relationship established between them in connection with this Agreement.
If either party hereto shall commence a Proceeding to enforce any
provisions of this Agreement, the Security Agreement or any other
Ancillary Agreement, then the prevailing party in such Proceeding
shall be
reimbursed by the other party for its reasonable attorneys’ fees and other
costs and expenses incurred with the investigation, preparation and
prosecution of such Proceeding.
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|
(k)
|
Cumulative
Remedies.
The remedies provided herein are cumulative and not exclusive of
any
remedies provided by law.
|
|
(l)
|
Severability.
If any term, provision, covenant or restriction of this Agreement
is held
by a court of competent jurisdiction to be invalid, illegal, void
or
unenforceable, the remainder of the terms, provisions, covenants
and
restrictions set forth herein shall remain in full force and effect
and
shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result
as
that contemplated by such term, provision, covenant or restriction.
It is
hereby stipulated and declared to be the intention of the parties
that
they would have executed the remaining terms, provisions, covenants
and
restrictions without including any of such that may be hereafter
declared
invalid, illegal, void or
unenforceable.
|
|
(m)
|
Headings.
The headings in this Agreement are for convenience of reference only
and
shall not limit or otherwise affect the meaning
hereof.
|
[BALANCE
OF PAGE INTENTIONALLY LEFT BLANK;
SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as
of the date first written above.
|
VALENS
U.S. SPV I, LLC
|
||||
|
By: Valens
Capital Management, LLC,
investment manager
|
||||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx |
By:
|
/s/ Xxxxx Xxxxxxxxx | |
|
Name:
|
Xxxxxxx X. Xxxxxxx |
Name:
|
Xxxxx Xxxxxxxxx | |
|
Title:
|
Chief Corporate Development Officer, Treasurer, Asst. Secretary |
Title:
|
Authorized Signatory | |
|
Address
for Notices:
|
||||
|
c/o
Valens Capital Management, LLC
|
||||
|
000
Xxxxxxx Xxxxxx − 10th
Floor
|
||||
|
New
York, NY 10017
|
||||
|
Attention: Portfolio
Services
|
||||
|
Facsimile: 000-000-0000
|
||||
EXHIBIT
A
[Month
__, 2007]
|
&
Trust Company
Two
Xxxxxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxxxxx Xxxxxxxxx]
|
|
Re:
|
Registration
Statement on Form SB-2
|
Ladies
and Gentlemen:
As
counsel to Incentra Solutions, Inc., a Nevada corporation (the “Company”), we
have been requested to render our opinion to you in connection with the resale
by the individuals or entitles listed on Schedule A attached hereto (the
“Selling Stockholders”), of an aggregate of [amount]shares (the “Shares”) of the
Company’s Common Stock.
The
Company’s Registration Statement on Form SB-2 (Reg. No. 333-____) (the
“Registration Statement”) under the Securities Act of 1933, as amended (the
“Act”), with respect to the resale of the Shares was declared effective by the
Securities and Exchange Commission on [date]. Enclosed is a copy of the
Prospectus dated [date] included in the Registration Statement. We understand
that the Shares are to be offered and sold in the manner described in the
Prospectus.
Based
upon the foregoing, upon request by the Selling Stockholders at any time while
the Registration Statement remains effective, it is our opinion that the Shares
have been registered for resale under the Act and new certificates evidencing
the Shares upon their transfer or re-registration by the Selling Stockholders
may be issued without restrictive legend. We will advise you if the Registration
Statement is not available or effective at any point in the future.
[Company
counsel]
1
Schedule
A
|
Selling Stockholder
|
Shares
Being Offered
|
1
Schedule
7(b)
|
1.
|
The
Registration Rights Agreement dated as of October 10, 2000 between
the
Company and Equity Pier LLC
|
|
2.
|
The
Registration Rights Agreement between the Company and former
ManagedStorage International, Inc. shareholders dated August 18,
2004.
|
|
3.
|
The
Registration Rights Agreement dated as of March, 2005 between the
Company
and Xxxxx X. Xxxxxxxx and Xxxx X.
Xxxxxxxxx.
|
|
4.
|
The
Registration Rights Agreement dated as of March 30, 2005 between
the
Company and MRA Systems, Inc., dba GE
Access.
|
|
5.
|
The
Registration Rights Agreement dated as of April 13, 2006 between
the
Company and Xxxxxx Xxxxxxxx and Transition Management
Consultants.
|
|
6.
|
The
Registration Rights Agreement dated as of August 24, 2006 between
the
Company and Xxxxx Xxxxxxxxx and Lord Amherst
Holdings.
|
|
7.
|
The
Registration Rights Agreement dated on or about June 30, 2006 between
the
Company and Blueline Partners LP, RAB Capital and other individual
holders.
|
|
8.
|
The
Registration Rights Agreement dated as of August 14, 2007 between
the
Company and Xxxx Xxxxxxxx, Xxxx Xxxxxxxx, Xxxxx Xxxxxxx, Xxxxx Averweck,
Xxxxx Marine and Xxxx Xxxxxx.
|
|
9.
|
The
Registration Rights Agreement dated as of August 31, 2007 between
the
Company and Xxxxxx X. Xxxxxxxxx,
Xx.
|
