Exhibit 10.3
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement (this "AGREEMENT"), dated as of February 6,
2006, among Laurus Master Fund, Ltd. (the "PLEDGEE"), Incentra Solutions, Inc.
(f/k/a Front Porch Digital, Inc.), a Nevada corporation (the "COMPANY"), and
each of the other undersigned parties (other than the Pledgee) (the Company and
each such other undersigned party, a "PLEDGOR" and collectively, the
"PLEDGORS").
BACKGROUND
The Company has entered into a Securities Purchase Agreement, dated as
of May 13, 2004 as amended, modified, restated or supplemented from time to
time, the "SECURITIES PURCHASE AGREEMENT"), and a Security Agreement dated as of
February 6, 2006 (as amended, modified, restated or supplemented from time to
time, the "SECURITY AGREEMENT"), pursuant to which the Pledgee has provided,
provides or will provide certain financial accommodations to the Company and
certain subsidiaries of the Company.
In order to induce the Pledgee to provide or continue to provide the
financial accommodations described in the Securities Purchase Agreement and the
Security Agreement, each Pledgor has agreed to pledge and grant a security
interest in the collateral described herein to the Pledgee on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. DEFINED TERMS. All capitalized terms used herein which are not
defined shall have the meanings given to them in the Securities Purchase
Agreement and the Security Agreement, as applicable.
2. PLEDGE AND GRANT OF SECURITY INTEREST. To secure the full and
punctual payment and performance of (the following clauses (a) and (b),
collectively, the "OBLIGATIONS") (a) the obligations under the Securities
Purchase Agreement and the Related Agreements referred to in the Securities
Purchase Agreement, the Security Agreement and the Ancillary Agreements referred
to in the Security Agreement (the Securities Purchase Agreement and the Related
Agreements the Security Agreement and the Ancillary Agreements, as each may be
amended, restated, modified and/or supplemented from time to time, collectively,
the "DOCUMENTS") and (b) all other obligations and liabilities of each Pledgor
to the Pledgee whether now existing or hereafter arising, direct or indirect,
liquidated or unliquidated, absolute or contingent, due or not due and whether
under, pursuant to or evidenced by a note, agreement, guaranty, instrument or
otherwise (in each case, irrespective of the genuineness, validity, regularity
or enforceability of such Obligations, or of any instrument evidencing any of
the Obligations or of any collateral therefor or of the existence or extent of
such collateral, and irrespective of the allowability, allowance or disallowance
of any or all of such in any case commenced by or against any Pledgor under
Title 11, United States Code, including, without limitation, obligations of each
Pledgor for post-petition interest, fees, costs and charges that would have
accrued or been added
to the Obligations but for the commencement of such case), each Pledgor hereby
pledges, assigns, hypothecates, transfers and grants a security interest to
Pledgee in all of the following (the "COLLATERAL"):
(a) the shares of stock set forth on SCHEDULE A annexed
hereto and expressly made a part hereof (together with any additional shares of
stock or other equity interests acquired by any Pledgor, the "PLEDGED STOCK"),
the certificates representing the Pledged Stock and all dividends, cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the Pledged Stock;
(b) all additional shares of stock of any issuer (each, an
"ISSUER") of the Pledged Stock from time to time acquired by any Pledgor in any
manner, including, without limitation, stock dividends or a distribution in
connection with any increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares, stock split, spin-off or
split-off (which shares shall be deemed to be part of the Collateral), and the
certificates representing such additional shares, and all dividends, cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such shares; and
(c) all options and rights, whether as an addition to, in
substitution of or in exchange for any shares of any Pledged Stock and all
dividends, cash, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all such options and rights.
3. DELIVERY OF COLLATERAL. All certificates representing or
evidencing the Pledged Stock shall be delivered to and held by or on behalf of
Pledgee pursuant hereto and shall be accompanied by duly executed instruments of
transfer or assignments in blank, all in form and substance satisfactory to
Pledgee. Each Pledgor hereby authorizes the Issuer upon demand by the Pledgee to
deliver any certificates, instruments or other distributions issued in
connection with the Collateral directly to the Pledgee, in each case to be held
by the Pledgee, subject to the terms hereof. Upon the occurrence and during the
continuance of an Event of Default (as defined below), the Pledgee shall have
the right, during such time in its discretion and without notice to the Pledgor,
to transfer to or to register in the name of the Pledgee or any of its nominees
any or all of the Pledged Stock. In addition, the Pledgee shall have the right
at such time to exchange certificates or instruments representing or evidencing
Pledged Stock for certificates or instruments of smaller or larger
denominations.
4. REPRESENTATIONS AND WARRANTIES OF EACH PLEDGOR. Each Pledgor
jointly and severally represents and warrants to the Pledgee (which
representations and warranties shall be deemed to continue to be made until all
of the Obligations have been paid in full and each Document and each agreement
and instrument entered into in connection therewith has been irrevocably
terminated) that:
(a) the execution, delivery and performance by each Pledgor
of this Agreement and the pledge of the Collateral hereunder do not and will not
result in any violation
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of any agreement, indenture, instrument, license, judgment, decree, order, law,
statute, ordinance or other governmental rule or regulation applicable to any
Pledgor;
(b) this Agreement constitutes the legal, valid, and binding
obligation of each Pledgor enforceable against each Pledgor in accordance with
its terms;
(c) all Pledged Stock owned by each Pledgor is set forth on
SCHEDULE A hereto and (ii) each Pledgor is the direct and beneficial owner of
each share of the Pledged Stock;
(d) all of the shares of the Pledged Stock have been duly
authorized, validly issued and are fully paid and nonassessable;
(e) no consent or approval of any person, corporation,
governmental body, regulatory authority or other entity, is or will be necessary
for (i) the execution, delivery and performance of this Agreement, (ii) the
exercise by the Pledgee of any rights with respect to the Collateral or (iii)
the pledge and assignment of, and the grant of a security interest in, the
Collateral hereunder;
(f) there are no pending or, to the best of Pledgor's
knowledge, threatened actions or proceedings before any court, judicial body,
administrative agency or arbitrator which may materially adversely affect the
Collateral;
(g) each Pledgor has the requisite power and authority to
enter into this Agreement and to pledge and assign the Collateral to the Pledgee
in accordance with the terms of this Agreement;
(h) each Pledgor owns each item of the Collateral and,
except for the pledge and security interest granted to Pledgee hereunder, the
Collateral shall be, immediately following the closing of the transactions
contemplated by the Documents, free and clear of any other security interest,
mortgage, pledge, claim, lien, charge, hypothecation, assignment, offset or
encumbrance whatsoever (collectively, "LIENS");
(i) there are no restrictions on transfer of the Pledged
Stock contained in the certificate of incorporation or by-laws (or equivalent
organizational documents) of the Issuer or otherwise which have not otherwise
been enforceably and legally waived by the necessary parties;
(j) none of the Pledged Stock has been issued or transferred
in violation of the securities registration, securities disclosure or similar
laws of any jurisdiction to which such issuance or transfer may be subject;
(k) the pledge and assignment of the Collateral and the
grant of a security interest under this Agreement vest in the Pledgee all rights
of each Pledgor in the Collateral as contemplated by this Agreement; and
(l) The Pledged Stock constitutes one hundred percent (100%)
of the issued and outstanding shares of capital stock of each Issuer.
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5. COVENANTS. Each Pledgor jointly and severally covenants that,
until the Obligations shall be indefeasibly satisfied in full and each Document
and each agreement and instrument entered into in connection therewith is
irrevocably terminated:
(a) No Pledgor will sell, assign, transfer, convey, or
otherwise dispose of its rights in or to the Collateral or any interest therein;
nor will any Pledgor create, incur or permit to exist any Lien whatsoever with
respect to any of the Collateral or the proceeds thereof other than that created
hereby.
(b) Each Pledgor will, at its expense, defend Pledgee's
right, title and security interest in and to the Collateral against the claims
of any other party.
(c) Each Pledgor shall at any time, and from time to time,
upon the written request of Pledgee, execute and deliver such further documents
and do such further acts and things as Pledgee may reasonably request in order
to effectuate the purposes of this Agreement including, but without limitation,
delivering to Pledgee, upon the occurrence of an Event of Default, irrevocable
proxies in respect of the Collateral in form satisfactory to Pledgee. Until
receipt thereof, upon an Event of Default that has occurred and is continuing
beyond any applicable grace period, this Agreement shall constitute Pledgor's
proxy to Pledgee or its nominee to vote all shares of Collateral then registered
in each Pledgor's name.
(d) No Pledgor will consent to or approve the issuance of
(i) any additional shares of any class of capital stock or other equity
interests of the Issuer; or (ii) any securities convertible either voluntarily
by the holder thereof or automatically upon the occurrence or nonoccurrence of
any event or condition into, or any securities exchangeable for, any such
shares, unless, in either case, such shares are pledged as Collateral pursuant
to this Agreement.
6. VOTING RIGHTS AND DIVIDENDS. In addition to the Pledgee's rights
and remedies set forth in Section 8 hereof, in case an Event of Default shall
have occurred and be continuing, beyond any applicable cure period, the Pledgee
shall (i) be entitled to vote the Collateral, (ii) be entitled to give consents,
waivers and ratifications in respect of the Collateral (each Pledgor hereby
irrevocably constituting and appointing the Pledgee, with full power of
substitution, the proxy and attorney-in-fact of each Pledgor for such purposes)
and (iii) be entitled to collect and receive for its own use cash dividends paid
on the Collateral. No Pledgor shall be permitted to exercise or refrain from
exercising any voting rights or other powers if, in the reasonable judgment of
the Pledgee, such action would have a material adverse effect on the value of
the Collateral or any part thereof; and, PROVIDED, FURTHER, that each Pledgor
shall give at least five (5) days' written notice of the manner in which such
Pledgor intends to exercise, or the reasons for refraining from exercising, any
voting rights or other powers other than with respect to any election of
directors and voting with respect to any incidental matters. Following the
occurrence of an Event of Default, all dividends and all other distributions in
respect of any of the Collateral, shall be delivered to the Pledgee to hold as
Collateral and shall, if received by any Pledgor, be received in trust for the
benefit of the Pledgee, be segregated from the other property or funds of any
other Pledgor, and be forthwith delivered to the Pledgee as Collateral in the
same form as so received (with any necessary endorsement).
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7. EVENT OF DEFAULT. An "Event of Default" under this Agreement
shall occur upon the happening of any of the following events:
(a) An "Event of Default" under any Document or any
agreement or note related to any Document shall have occurred and be continuing
beyond any applicable cure period;
(b) Any Pledgor shall default in the performance of any of
its obligations under any Document, including, without limitation, this
Agreement, and such default shall not be cured during the cure period applicable
thereto;
(c) Any representation or warranty of any Pledgor made
herein, in any Document or in any agreement, statement or certificate given in
writing pursuant hereto or thereto or in connection herewith or therewith shall
be false or misleading in any material respect;
(d) Any portion of the Collateral is subjected to a levy of
execution, attachment, distraint or other judicial process or any portion of the
Collateral is the subject of a claim (other than by the Pledgee) of a Lien,
other than the Permitted Liens as defined in the Securities Purchase Agreement
and/or the Security Agreement, or other right or interest in or to the
Collateral and such levy or claim shall not be cured, disputed or stayed within
a period of fifteen (15) business days after the occurrence thereof; or
(e) Any Pledgor shall (i) apply for, consent to, or suffer
to exist the appointment of, or the taking of possession by, a receiver,
custodian, trustee, liquidator or other fiduciary of itself or of all or a
substantial part of its property, (ii) make a general assignment for the benefit
of creditors, (iii) commence a voluntary case under any state or federal
bankruptcy laws (as now or hereafter in effect), (iv) be adjudicated a bankrupt
or insolvent, (v) file a petition seeking to take advantage of any other law
providing for the relief of debtors, (vi) acquiesce to, or fail to have
dismissed, within thirty (30) days, any petition filed against it in any
involuntary case under such bankruptcy laws, or (vii) take any action for the
purpose of effecting any of the foregoing.
8. REMEDIES. In case an Event of Default shall have occurred and is
continuing, the Pledgee may:
(a) Transfer any or all of the Collateral into its name, or
into the name of its nominee or nominees;
(b) Exercise all corporate rights with respect to the
Collateral including, without limitation, all rights of conversion, exchange,
subscription or any other rights, privileges or options pertaining to any shares
of the Collateral as if it were the absolute owner thereof, including, but
without limitation, the right to exchange, at its discretion, any or all of the
Collateral upon the merger, consolidation, reorganization, recapitalization or
other readjustment of the Issuer thereof, or upon the exercise by the Issuer of
any right, privilege or option pertaining to any of the Collateral, and, in
connection therewith, to deposit and deliver any and all of the Collateral with
any committee, depository, transfer agent, registrar or other designated
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agent upon such terms and conditions as it may determine, all without liability
except to account for property actually received by it; and
(c) Subject to any requirement of applicable law, sell,
assign and deliver the whole or, from time to time, any part of the Collateral
at the time held by the Pledgee, at any private sale or at public auction, with
or without demand, advertisement or notice of the time or place of sale or
adjournment thereof or otherwise (all of which are hereby waived, except such
notice as is required by applicable law and cannot be waived), for cash or
credit or for other property for immediate or future delivery, and for such
price or prices and on such terms as the Pledgee in its sole discretion may
determine, or as may be required by applicable law.
Each Pledgor hereby waives and releases any and all right or
equity of redemption, whether before or after sale hereunder. At any such sale,
unless prohibited by applicable law, the Pledgee may bid for and purchase the
whole or any part of the Collateral so sold free from any such right or equity
of redemption. All moneys received by the Pledgee hereunder, whether upon sale
of the Collateral or any part thereof or otherwise, shall be held by the Pledgee
and applied by it as provided in Section 10 hereof. No failure or delay on the
part of the Pledgee in exercising any rights hereunder shall operate as a waiver
of any such rights nor shall any single or partial exercise of any such rights
preclude any other or future exercise thereof or the exercise of any other
rights hereunder. The Pledgee shall have no duty as to the collection or
protection of the Collateral or any income thereon nor any duty as to
preservation of any rights pertaining thereto, except to apply the funds in
accordance with the requirements of Section 10 hereof. The Pledgee may exercise
its rights with respect to property held hereunder without resort to other
security for or sources of reimbursement for the Obligations. In addition to the
foregoing, Pledgee shall have all of the rights, remedies and privileges of a
secured party under the Uniform Commercial Code of New York (the "UCC")
regardless of the jurisdiction in which enforcement hereof is sought.
9. PRIVATE SALE. Each Pledgor recognizes that the Pledgee may be
unable to effect (or to do so only after delay which would adversely affect the
value that might be realized from the Collateral) a public sale of all or part
of the Collateral by reason of certain prohibitions contained in the Securities
Act, and may be compelled to resort to one or more private sales to a restricted
group of purchasers who will be obliged to agree, among other things, to acquire
such Collateral for their own account, for investment and not with a view to the
distribution or resale thereof. Each Pledgor agrees that any such private sale
may be at prices and on terms less favorable to the seller than if sold at
public sales and that such private sales shall be deemed to have been made in a
commercially reasonable manner. Each Pledgor agrees that the Pledgee has no
obligation to delay sale of any Collateral for the period of time necessary to
permit the Issuer to register the Collateral for public sale under the
Securities Act.
10. PROCEEDS OF SALE. The proceeds of any collection, recovery,
receipt, appropriation, realization or sale of the Collateral shall be applied
by the Pledgee as follows:
(a) First, to the payment of all costs, reasonable expenses
and charges of the Pledgee and to the reimbursement of the Pledgee for the prior
payment of such costs, reasonable expenses and charges incurred in connection
with the care and safekeeping of the Collateral (including, without limitation,
the reasonable expenses of any sale or any other disposition of any
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of the Collateral), attorneys' fees and reasonable expenses, court costs, any
other fees or expenses incurred or expenditures or advances made by Pledgee in
the protection, enforcement or exercise of its rights, powers or remedies
hereunder;
(b) Second, to the payment of the Obligations, in whole or
in part, in such order as the Pledgee may elect, whether or not such Obligations
are then due;
(c) Third, to such persons, firms, corporations or other
entities as required by applicable law including, without limitation, Section
9-615(a)(3) of the UCC; and
(d) Fourth, to the extent of any surplus to the Pledgors or
as a court of competent jurisdiction may direct.
In the event that the proceeds of any collection, recovery,
receipt, appropriation, realization or sale are insufficient to satisfy the
Obligations, each Pledgor shall be jointly and severally liable for the
deficiency plus the costs and fees of any attorneys employed by Pledgee to
collect such deficiency.
11. WAIVER OF MARSHALING. Each Pledgor hereby waives any right to
compel any marshaling of any of the Collateral.
12. NO WAIVER. Any and all of the Pledgee's rights with respect to
the Liens granted under this Agreement shall continue unimpaired, and Pledgor
shall be and remain obligated in accordance with the terms hereof,
notwithstanding (a) the bankruptcy, insolvency or reorganization of any Pledgor,
(b) the release or substitution of any item of the Collateral at any time, or of
any rights or interests therein, or (c) any delay, extension of time, renewal,
compromise or other indulgence granted by the Pledgee in reference to any of the
Obligations. Each Pledgor hereby waives all notice of any such delay, extension,
release, substitution, renewal, compromise or other indulgence, and hereby
consents to be bound hereby as fully and effectively as if such Pledgor had
expressly agreed thereto in advance. No delay or extension of time by the
Pledgee in exercising any power of sale, option or other right or remedy
hereunder, and no failure by the Pledgee to give notice or make demand, shall
constitute a waiver thereof, or limit, impair or prejudice the Pledgee's right
to take any action against any Pledgor or to exercise any other power of sale,
option or any other right or remedy.
13. EXPENSES. The Collateral shall secure, and each Pledgor shall
pay to Pledgee on demand, from time to time, all reasonable costs and expenses,
(including but not limited to, reasonable attorneys' fees and costs, taxes, and
all transfer, recording, filing and other charges) of, or incidental to, the
custody, care, transfer, administration of the Collateral or any other
collateral, or in any way relating to the enforcement, protection or
preservation of the rights or remedies of the Pledgee under this Agreement or
with respect to any of the Obligations.
14. THE PLEDGEE APPOINTED ATTORNEY-IN-FACT AND PERFORMANCE BY THE
PLEDGEE. Upon the occurrence of an Event of Default, each Pledgor hereby
irrevocably constitutes and appoints the Pledgee as such Pledgor's true and
lawful attorney-in-fact, with full power of substitution, to execute,
acknowledge and deliver any instruments and to do in such Pledgor's name, place
and stead, all such acts, things and deeds for and on behalf of and in the name
of such Pledgor, which
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such Pledgor could or might do or which the Pledgee may deem necessary,
desirable or convenient to accomplish the purposes of this Agreement, including,
without limitation, to execute such instruments of assignment or transfer or
orders and to register, convey or otherwise transfer title to the Collateral
into the Pledgee's name. Each Pledgor hereby ratifies and confirms all that said
attorney-in-fact may so do and hereby declares this power of attorney to be
coupled with an interest and irrevocable. If any Pledgor fails to perform any
agreement herein contained, the Pledgee may itself perform or cause performance
thereof, and any costs and expenses of the Pledgee incurred in connection
therewith shall be paid by the Pledgors as provided in Section 10 hereof.
15. WAIVERS. 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 ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE BETWEEN LAURUS, AND/OR ANY COMPANY ARISING OUT OF, CONNECTED WITH,
RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION
WITH THIS AGREEMENT, ANY OTHER DOCUMENT OR THE TRANSACTIONS RELATED HERETO OR
THERETO.
16. RECAPTURE. Notwithstanding anything to the contrary in this
Agreement, if the Pledgee receives any payment or payments on account of the
Obligations, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver, or any other party under the
United States Bankruptcy Code, as amended, or any other federal or state
bankruptcy, reorganization, moratorium or insolvency law relating to or
affecting the enforcement of creditors' rights generally, common law or
equitable doctrine, then to the extent of any sum not finally retained by the
Pledgee, each Pledgor's obligations to the Pledgee shall be reinstated and this
Agreement shall remain in full force and effect (or be reinstated) until payment
shall have been made to Pledgee, which payment shall be due on demand.
17. CAPTIONS. All captions in this Agreement are included herein for
convenience of reference only and shall not constitute part of this Agreement
for any other purpose.
18. MISCELLANEOUS.
(a) This Agreement constitutes the entire and final
agreement among the parties with respect to the subject matter hereof and may
not be changed, terminated or otherwise varied except by a writing duly executed
by the parties hereto.
(b) No waiver of any term or condition of this Agreement,
whether by delay, omission or otherwise, shall be effective unless in writing
and signed by the party sought to be charged, and then such waiver shall be
effective only in the specific instance and for the purpose for which given.
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(c) In the event that any provision of this Agreement or the
application thereof to any Pledgor or any circumstance in any jurisdiction
governing this Agreement shall, to any extent, be invalid or unenforceable under
any applicable statute, regulation, or rule of law, such provision shall be
deemed inoperative to the extent that it may conflict therewith and shall be
deemed modified to conform to such statute, regulation or rule of law, and the
remainder of this Agreement and the application of any such invalid or
unenforceable provision to parties, jurisdictions, or circumstances other than
to whom or to which it is held invalid or unenforceable shall not be affected
thereby, nor shall same affect the validity or enforceability of any other
provision of this Agreement.
(d) This Agreement shall be binding upon each Pledgor, and
each Pledgor's successors and assigns, and shall inure to the benefit of the
Pledgee and its successors and assigns.
(e) Any notice or other communication required or permitted
pursuant to this Agreement shall be given in accordance with the Security
Agreement.
(f) THIS AGREEMENT AND THE OTHER DOCUMENTS 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.
(g) EACH PLEDGOR 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 CLAIMS OR DISPUTES BETWEEN
ANY PLEDGOR, ON THE ONE HAND, AND THE PLEDGEE, ON THE OTHER HAND, PERTAINING TO
THIS AGREEMENT OR ANY OF THE OTHER DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR ANY OF THE OTHER DOCUMENTS, PROVIDED, THAT EACH
PLEDGOR ACKNOWLEDGES 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 PLEDGEE FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION TO COLLECT THE INDEBTEDNESS, TO REALIZE ON THE COLLATERAL OR
ANY OTHER SECURITY FOR THE INDEBTEDNESS, OR TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER IN FAVOR OF THE PLEDGEE. EACH PLEDGOR EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH PLEDGOR HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK
OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. EACH PLEDGOR
HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS
ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS,
COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH PLEDGOR AT THE ADDRESS SET FORTH IN THE THE SECURITY AGREEMENT
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AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF THE SUCH
PLEDGOR'S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S.
MAILS, PROPER POSTAGE PREPAID.
(h) It is understood and agreed that any person or entity
that desires to become a Pledgor hereunder, or is required to execute a
counterpart of this Agreement after the date hereof pursuant to the requirements
of any Document, shall become a Pledgor hereunder by (x) executing a Joinder
Agreement in form and substance satisfactory to the Pledgee, (y) delivering
supplements to such exhibits and annexes to such Documents as the Pledgee shall
reasonably request and/or set forth in such joinder agreement and (z) taking all
actions as specified in this Agreement as would have been taken by such Pledgor
had it been an original party to this Agreement, in each case with all documents
required above to be delivered to the Pledgee and with all documents and actions
required above to be taken to the reasonable satisfaction of the Pledgee.
(i) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one and the same agreement. Any signature
delivered by a party by facsimile transmission shall be deemed an original
signature hereto.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first written above.
INCENTRA SOLUTIONS, INC.
By: /s/ Thomas P. Sweeney, III
------------------------------------
Name: Thomas P. Sweeney, III
Title: Chairman and CEO
MANAGEDSTORAGE INTERNATIONAL, INC.
By: /s/ Thomas P. Sweeney, III
------------------------------------
Name: Thomas P. Sweeney, III
Title: Chairman and CEO
LAURUS MASTER FUND, LTD.
By: /s/ David Grin
------------------------------------
Name: David Grin
Title: Managing Partner
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