Exhibit 10.5
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this
"Agreement") is made and entered into as of February 6, 2006, by and between
INCENTRA SOLUTIONS, INC. (f/k/a Front Porch Digital, Inc., a Nevada corporation)
(the "Company"), and Laurus Master Fund, Ltd. (the "Purchaser"), and amends and
restates in its entirety that certain Registration Rights Agreement by and
between the Company and the Purchaser dated May 13, 2004.
This Agreement is made pursuant to the Securities Purchase Agreement,
dated as May 14, 2004, by and between the Purchaser and the Company (the
"Securities Purchase Agreement"), and pursuant to the Note and the Warrants
referred to therein and pursuant to the Security Agreement, dated as of the date
hereof, by and among the Purchaser, the Company and various subsidiaries of the
Company (as amended, modified or supplemented from time to time, the "Security
Agreement" and pursuant to the Notes and the Options referred to therein.
The Company and the Purchaser hereby agree as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined
herein that are defined in the Securities Purchase Agreement shall have the
meanings given such terms in the Securities Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
"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 Registration
Statement required to be filed in connection with (a) the shares of Common Stock
issuable upon exercise of the Options issued pursuant to the terms of the
Security Agreement and (b) the shares of Common Stock issuable upon exercise of
the Warrants, a date no later than June 15, 2006; and (ii) with respect to each
additional Registration Statement required to be filed hereunder, a date no
later than sixty (60) 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, (i) with respect to the Registration
Statement required to be filed in connection with (a) the shares of Common Stock
issuable upon exercise of the Options issued pursuant to the terms of the
Security Agreement and (b) the shares of Common Stock issuable upon exercise of
the Warrants, a date no later than April 16, 2006; and (ii) with respect to the
Registration Statement required to be filed in connection with the shares of
Common Stock issuable to the Holder as a result of adjustments to (a) the
Exercise Price, pursuant to Section 4 of the Option and/or (b) the Exercise
Price pursuant to Section 4 of the Warrant or otherwise, forty-five (45) days
after the occurrence of such event or the date of the adjustment of the relevant
Exercise Price..and with respect to shares of Common Stock issuable to the
Holder
as a result of adjustments to the Fixed Conversion Price made pursuant to
Section 3.4 of the Secured Convertible Term Note or otherwise, forty-five (45)
days after the occurrence such event or the date of the adjustment of the Fixed
Conversion Price.
"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).
"NOTE" shall have the meaning set forth in the Securities
Purchase Agreement.
"OPTIONS" means the Common Stock purchase options issued in
connection with the Security Agreement, whether on the date thereof or
thereafter.
"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 conversion of the Note, upon the exercise of the Options and 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.
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"SECURITIES ACT" means the Securities Act of 1933, as amended,
and any successor statute.
"SECURITIES PURCHASE AGREEMENT" means the agreement between the
parties hereto calling for the issuance by the Company of the Note in the
principal amount of $5,000,000 and the Warrants.
"SECURITY AGREEMENT" has the meaning given to such term in the
Preamble hereto.
"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 to
the Purchaser on June 30, 2005 or thereafter.
2. REGISTRATION.
(a) 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 or (iii) except with respect to the shares issuable
upon the exercise of the Options and the Warrants issued in connection
with the revolving credit facility, all amounts payable under the Note
have been paid in full (each, an "Effectiveness Period").
(b) 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
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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.
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:
(a) 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;
(b) 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;
(c) 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;
(d) 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;
(e) list the Registrable Securities covered by such
Registration Statement with any securities exchange on which the Common
Stock of the Company is then listed;
(f) 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) 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.
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.
(a) 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.
(b) 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
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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.
(c) 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
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reasonable expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the Indemnifying Party
as incurred.
(d) 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.
6. REPRESENTATIONS AND WARRANTIES.
(a) 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 Securities Purchase Agreement and on SCHEDULE 12(u)
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 year ended December 31,
2004 and its Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 2005, June 30, 2005 and September 30, 2005
(collectively, the "SEC Reports"). To the knowledge of the Company, the
SEC Report 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
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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.
(b) 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.
(c) 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 Securities Purchase Agreement or the Security
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).
(d) The Options, the Warrants, the Note and the shares of
Common Stock which the Purchaser may acquire pursuant to the Options,
the Warrants and the Note 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.
(e) The Company understands the nature of the Registrable
Securities issuable upon the conversion of the Note, the exercise of the
Option and the exercise of the Warrant 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.
(f) 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
8
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.
(g) The Company will at all times have authorized and
reserved a sufficient number of shares of Common Stock for the full
conversion of the Note, exercise of the Options and exercise of the
Warrants.
7. MISCELLANEOUS.
(a) 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.
(b) NO PIGGYBACK ON REGISTRATIONS. Except as and to the
extent specified in Schedule 4.15 to the Securities Purchase Agreement
and 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 in Schedule 4.15 to the
Securities Purchase Agreement and 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.
(c) 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.
(d) 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
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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.
(e) 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.
(f) 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
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sentence may not be amended, modified, or supplemented except in
accordance with the provisions of the immediately preceding sentence.
(g) 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: Front Porch Digital, Inc.
1140 Pearl Street
Boulder, Colorado 80302
Attention: Chief Financial Officer
Facsimile: (303) 449-9584
WITH A COPY TO:
Law Offices of Karl Reed Guest
94 Underhill Road
Orinda, CA 94563
Attention: Reed Guest, Esq.
Facsimile: (925) 254-9226
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.
(h) 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 Notes, the Securities Purchase Agreement, the
Related Agreements (as defined in the Securities Purchase Agreement),
the Security Agreement and the Ancillary Agreements
11
(as defined in the Security Agreement) with the prior written consent of
the Company, which consent shall not be unreasonably withheld.
(i) 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.
(j) 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 then 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.
12
(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]
13
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Registration Rights Agreement as of the date first written above.
INCENTRA SOLUTIONS, INC. LAURUS MASTER FUND, LTD.
(F/K/A FRONT PORCH DIGITAL, INC.)
By: /s/ Thomas P. Sweeney, III By: s/ David Grin
--------------------------------- -------------------------------
Name: Thomas P. Sweeney, III Name: David Grin
--------------------------------- -------------------------------
Title: Chairman and CEO Title: Managing Partner
--------------------------------- -------------------------------
ADDRESS FOR NOTICES:
825 Third Avenue - 14th Floor
New York, NY 10022
Attention: David Grin
Facsimile: 212-541-4434
14
Exhibit 10.5
EXHIBIT A
[Month __, 2006]
[Continental Stock Transfer
& Trust Company
Two Broadway
New York, NY 10004
Attn: William Seegraber]
Re: INCENTRA SOLUTIONS, INC. (F/K/A FRONT PORCH DIGITAL, INC.)
REGISTRATION STATEMENT ON FORM SB-2
Ladies and Gentlemen:
As counsel to Incentra Solutions, Inc. (f/k/a Front Porch Digital,
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.
Very truly yours,
[Company counsel]
SCHEDULE A
SELLING STOCKHOLDER SHARES
BEING OFFERED