AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 6, 2006
REGISTRATION NO.: 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INCENTRA SOLUTIONS, INC.
(Exact Name of Registrant as Specified in its Charter)
NEVADA 86-0793960
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1140 PEARL STREET
BOULDER, COLORADO 80302
(Address of Principal Executive Offices) (Zip Code)
2006 STOCK OPTION PLAN
(Full Title of the Plan)
THOMAS SWEENEY
CHIEF EXECUTIVE OFFICER
1140 PEARL STREET
BOULDER, COLORADO 80302
(Name and Address of Agent for Service)
(303) 440-7930
(Telephone Number, Including Area Code, of Agent for Service)
COPY TO:
ERIC M. HELLIGE, ESQ.
PRYOR CASHMAN SHERMAN & FLYNN LLP
410 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 421-4100
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Offering Aggregate
Title of Each Class of Amount to Price Per Offering Amount of
Securities to be Registered be Registered* Share** Price Registration Fee
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Common Stock, $.001 par value............ 1,750,000 Shares $1.22 $2,135,000 $228.45
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* All the securities registered hereby are issuable under the Plan.
** Estimated solely for the purpose of calculating the registration fee and
computed in accordance with Rule 457(c) under the Securities Act of 1933,
upon the basis of the closing price per share of the Registrant's common
stock as reported on the Over the Counter Bulletin Board on July 5, 2006.
PART I
INFORMATION REQUIRED IN THE 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* The information required by Items 1 and 2 of Part I of Form S-8 is
omitted from this Registration Statement in accordance with the Note
to Part I of Form S-8 and Rule 428 promulgated under the Securities
Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, and all documents subsequently filed by
Incentra Solutions, Inc. (the "COMPANY") pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), prior to the filing of a post-effective amendment to the Registration
Statement which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and shall be deemed to
be a part hereof from the date of the filing of such documents:
(1) The description of the Company's common stock contained in
the Company's Registration Statement on Form 8-A filed with
the Securities and Exchange Commission (the "COMMISSION") on
June 26, 2001, including any amendment or report filed for
the purpose of updating such information;
(2) the Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 2005, filed with the Commission on
April 4, 2006;
(3) the Company's Quarterly Report on Form 10-QSB for the fiscal
quarter ended March 31, 2006, filed with the Commission on
May 15, 2006; and
(4) all other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered
by the report referred to in (2) above.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 78.7502 of the Nevada Revised Statutes (the "NEVADA LAW")
permits a corporation to indemnify any of its directors, officers, employees and
agents against costs and expenses arising from claims, suits and proceedings if
such persons acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. Notwithstanding the foregoing, in an action by or in the right of
the corporation, no indemnification may be made in respect of any claim, issue
or matter, as to which such person is adjudged to be liable to the corporation
unless a court of competent jurisdiction determines that in view of all the
circumstances of the case, indemnification would be appropriate. The
indemnification provisions of the Nevada Law expressly do not exclude any other
rights a person may have to indemnification under any bylaw, among other things.
Article XI of the Company's Articles of Incorporation states that the
Company may indemnify each director and executive officer of the Company with
respect to actions taken or not taken by said directors or executive officers in
the course of their duties for the Company to the fullest extent permitted by
law. The specific terms of any such indemnification shall be provided in the
bylaws of the Company.
Article VIII of the Company's bylaws provide for the indemnification of
any person made a party to or involved in any civil, criminal or administrative
action, suit or proceeding by reason of the fact that he or his testator or
intestate is or was a director, officer or employee of the Company, or of any
company which he, the testator, or intestate served as such at the request of
the Company, shall be indemnified by the Company against expenses reasonably
incurred by him or imposed on him in connection with or resulting from the
defense of such action, suit or proceeding and in connection with or resulting
from any appeal thereon, except with respect to matters as to which it is
adjudged in such action, suit or proceeding that such officer, director, or
employee was liable to the Company, or to such other corporation, for negligence
or misconduct in the performance of his duty.
Article VIII of the Company's bylaws further provides that a judgment
of conviction shall not of itself be deemed an adjudication that such director,
officer or employee is liable to the Company, or such other corporation, for
negligence or misconduct in the performance of his duties. Determination of the
rights of such indemnification and the amount thereof may be made
at the option of the person to be indemnified pursuant to procedure set forth in
the bylaws. Any determination that a payment by way of indemnity should be made
will be binding upon the Company. Such right of indemnification shall not be
exclusive of any other right which such directors, officers, and employees of
the Company may have or hereafter acquire, and without limiting the generality
of such statement, they shall be entitled to their respective rights of
indemnification under any bylaw, agreement, vote of stockholders, provision of
law, or otherwise in addition to their rights under Article VIII. The provisions
of Article VIII shall apply to any member of any committee appointed by the
Board of Directors as fully as though each person had been a director, officer
or employee of the Company.
Any amendment to or repeal of the Company's Articles of Incorporation
or bylaws shall not adversely affect any right or protection of any of the
Company's directors or officers for or with respect to any acts or omissions of
such director or officer occurring prior to such amendment or repeal.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
The Company maintains directors and officers insurance which, subject
to certain exclusions, insures the directors and officers of the Company against
certain losses which arise out of any neglect or breach of duty (including, but
not limited to, any error, misstatement, act, or omission) by the directors or
officers in the discharge of their duties, and insures the Company against
amounts which it has paid or may become obligated to pay as indemnification to
its directors and/or officers to cover such losses.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS.
EXHIBIT
NO. DESCRIPTION
5.1 Opinion of Pryor Cashman Sherman & Flynn LLP (regarding validity of
common stock being registered).
10.1 Incentra Solutions, Inc. 2006 Stock Option Plan dated as of May 4,
2006 (incorporated by reference to Exhibit 10.1 to the Company's
Quarterly Report on Form 10-QSB for the fiscal quarter ended March
31, 2006, filed with the Commission on May 15, 2006).
2
23.1 Consent of Pryor Cashman Sherman & Flynn LLP (included in its
opinion filed as Exhibit 5.1).
23.2 Consent of GHP Horwath, P.C.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
annual report pursuant to Section 15(d) of the Exchange Act that is incorporated
by reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
we certify that we have reasonable grounds to believe that we meet all the
requirements for filing on Form S-8 and have duly caused this registration
statement to be signed on our behalf by the undersigned, thereunto duly
authorized, in Boulder, Colorado on this 6th day of July 2006.
INCENTRA SOLUTIONS, INC.
By: /s/Thomas P. Sweeney III
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Name: Thomas P. Sweeney III
Title: Chief Executive Officer
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below hereby constitutes and appoints Thomas Sweeney or Paul McKnight or either
one of them, his attorneys-in-fact and agents, each with full power of
substitution and resubstitution for him in any and all capacities, to sign any
or all amendments or post-effective amendments to this registration statement or
a registration statement prepared in accordance with Rule 462 of the Securities
Act of 1933, as amended, and to file the same, with exhibits thereto and other
documents in connection herewith or in connection with the registration of the
offered securities under the Securities Exchange Act of 1934, as amended, with
the Securities and Exchange Commission, granting unto each of such
attorneys-in-fact and agents full power to do and perform each and every act and
thing requisite and necessary in connection with such matters and hereby
ratifying and confirming all that each of such attorneys-in-fact and agents or
his substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/Thomas P. Sweeney Chief Executive Officer and Chairman of the July 6, 2006
- -------------------- Board (Principal Executive Officer)
Thomas P. Sweeney III
/s/Paul McKnight Chief Financial Officer (Principal July 6, 2006
- ---------------- Accounting Officer)
Paul McKnight
/s/James Wolfinger Director July 6, 2006
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James Wolfinger
/s/Patrick Whittingham Director July 6, 2006
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Patrick Whittingham
/s/Thomas G. Hudson Director July 6, 2006
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Thomas G. Hudson
/s/Carmen J. Scarpa Director July 6, 2006
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Carmen J. Scarpa
/s/David E. Weiss Director July 6, 2006
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David E. Weiss