Exhibit 10.1
INX INC.
900,000 Shares of Common Stock, par value $0.01 per
share
PLACEMENT AGENCY AGREEMENT
June 19,
2008
Raymond
James & Associates, Inc.
880 Carillon Parkway
St. Petersburg, FL 33716
Dear
Sir or Madam:
INX Inc., a Delaware corporation (the
“Company”), proposes to issue and sell 900,000 shares
(the “Shares”) of common stock, par value $0.01 per
share (the “Common Stock”), to certain investors
(collectively, the “Investors”). The Company desires to
engage you as its placement agent (the “Placement
Agent”) in connection with such issuance and sale. The Shares
are more fully described in the Registration Statement (as
hereinafter defined).
The Company hereby confirms as
follows its agreements with the Placement Agent.
Agreement to Act as Placement Agent . On the basis of the
representations, warranties and agreements of the Company herein
contained and subject to all the terms and conditions of this
Agreement, the Company hereby appoints the Placement Agent and the
Placement Agent agrees to act as the Company’s exclusive
placement agent, on a best efforts basis, in connection with the
issuance and sale by the Company of the Shares to the Investors
during the period commencing on the date hereof and expiring on
July 16, 2008. The Placement Agent shall use commercially
reasonable efforts to assist the Company in obtaining performance
by each Investor whose offer to purchase Shares has been solicited
by the Placement Agent and accepted by the Company, but the
Placement Agent shall not, except as otherwise provided in this
Agreement, have any liability to the Company in the event any such
purchase is not consummated for any reason. The Company shall have
the sole right to accept offers to purchase Shares and may reject
any such offer, in whole or in part. The Company shall pay to the
Placement Agent an aggregate amount equal to 6.50% of the proceeds
received by the Company from the sale of the Shares, if any,
actually sold as set forth on the cover page of the Prospectus (as
hereinafter defined) upon the closing of the transactions
contemplated hereby. The Placement Agent, without the prior consent
of the Company, may appoint any co-agents or sub-agents in
connection with the issuance and sale of the Shares and may
allocate any portion of such fee to such co-agents or
sub-agents.
2
Delivery and Payment . At 10:00 a.m., New York City
time, on June 25, 2008, or at such other time on such other
date as may be agreed upon by the Company and the Placement Agent
(such date is hereinafter referred to as the “Closing
Date”), the Placement Agent shall cause the Investors to wire
an amount equal to the price per share as shown on the cover page
of the Prospectus (as hereinafter defined) for each and all of the
Shares offered pursuant to the Prospectus to an account designated
by the Company and the Company shall deliver the Shares to the
Investors, which delivery may be made through the facilities of The
Depository Trust Company. The closing (the “Closing”)
shall take place at the office of Morrison & Foerster LLP, 1290
Avenue of the Americas, New York, New York 10104. All actions taken
at the Closing shall be deemed to have occurred
simultaneously.
Representations and Warranties of the Company . The Company
represents and warrants and covenants to the Placement Agent on the
date hereof, and shall be deemed to represent and warrant and
covenant to the Placement Agent on the Closing Date, that:
A
“shelf” registration statement on Form S-3 (File
No. 333-146710) with respect to the Common Stock and certain
other securities of the Company has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the “Act”), and the rules and regulations (the
“Rules and Regulations”) of the Securities and Exchange
Commission (the “Commission”) thereunder, and has been
filed with the Commission. The Company and the transactions
contemplated by this Agreement meet the requirements and comply
with the conditions for the use of Form S-3. The Registration
Statement meets the requirements of Rule 415(a)(1)(x) under
the Act and complies in all materials respects with said rule. As
used in this Agreement:
(i) “Applicable
Time” means 7:30 p.m., New York City time, on the date of
this Agreement;
(ii) “Company’s
Knowledge” means the actual knowledge of James H. Long, Brian
Fontana and Larry Lawhorn;
(iii) “Effective
Date” means any date as of which any part of the Registration
Statement became, or is deemed to have become, effective under the
Act in accordance with the Rules and Regulations;
(iv) “Issuer Free Writing
Prospectus” means each “issuer free writing
prospectus” (as defined in Rule 433 of the Rules and
Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Shares, each as listed on Schedule 3 hereto;
(v) “Preliminary
Prospectus” means any preliminary prospectus relating to the
Shares included in the Registration Statement or filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations,
including any preliminary prospectus supplement thereto relating to
the Shares;
(vi) “Pricing Disclosure
Materials” means, as of the Applicable Time, the most recent
Preliminary Prospectus, together with each Issuer Free Writing
Prospectus filed or used by the Company on or before the Applicable
Time, and the information set forth on Schedule 4
hereto;
(vii) “Prospectus”
means the final prospectus relating to the Shares including any
prospectus supplement thereto relating to the Shares and the
documents incorporated by
3
reference therein, as filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations; and
(viii) “Registration
Statement” means, collectively, the various parts of such
registration statement, each as amended as of the Effective Date
for such part, including any Preliminary Prospectus or the
Prospectus and all exhibits to such registration statement. Any
reference to any Preliminary Prospectus, the Prospectus or the
Registration Statement shall be deemed to refer to and include any
documents incorporated or deemed to be incorporated by reference
therein pursuant to Form S-3 under the Act as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be. Any
reference herein to the terms “amend”,
“amendment” or “supplement” with respect to
the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), after the effective date of the
Registration Statement, the date of such Preliminary Prospectus or
the date of the Prospectus, as the case may be, which is
incorporated therein by reference.
The
Registration Statement has heretofore become effective under the
Act or, with respect to any registration statement to be filed to
register the offer and sale of Shares pursuant to Rule 462(b) under
the Act, will be filed with the Commission and become effective
under the Act no later than 10:00 p.m., New York City time, on
the date of determination of the public offering price for the
Shares; no stop order of the Commission preventing or suspending
the use of any Prospectus, or the effectiveness of the Registration
Statement, has been issued, and no proceedings for such purpose
have been instituted or, to the Company’s Knowledge, are
contemplated by the Commission.
The
Company was not at the time of the initial filing of the
Registration Statement, has not been since the date of such filing,
and will not be on the Closing Date, an “ineligible
issuer” (as defined in Rule 405 under the Act). The
Company has been since the time of initial filing of the
Registration Statement and continues to be eligible to use Form S-3
for the offering of the Shares.
The
Registration Statement, at the time it became effective, as of the
date hereof, and at the Closing Date conformed and will conform in
all material respects to the requirements of the Act and the rules
and regulations of the Commission promulgated thereunder (the
“Rules and Regulations”). The Preliminary Prospectus
conformed, and the Prospectus will conform, when filed with the
Commission pursuant to Rule 424(b) and on the Closing Date to the
requirements of the Act and the Rules and Regulations. The
documents incorporated by reference in any Preliminary Prospectus
or the Prospectus conformed, and any further documents so
incorporated will conform, when filed with the Commission, to the
requirements of the Exchange Act or the Act, as applicable, and the
Rules and Regulations.
The
Registration Statement did not, as of the Effective Date, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
The
Prospectus will not, as of its date and on the Closing Date,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided ,
however , that the Company makes no representation or
warranty with respect to any statement contained in the Prospectus
in reliance
4
upon and
in conformity with information concerning the Placement Agent and
furnished in writing by the Placement Agent to the Company
expressly for use in the Prospectus, as set forth in
Section 8(b).
The
documents incorporated by reference in any Preliminary Prospectus
or the Prospectus did not, and any further documents filed and
incorporated by reference therein will not, when filed with the
Commission, contain an untrue statement of a material fact or omit
to state a material fact required to be stated in such document or
necessary to make the statements in such document, in light of the
circumstances under which they were made, not misleading.
The
Pricing Disclosure Materials, including each Issuer Free Writing
Prospectus, did not, as of the Applicable Time, contain an untrue
statement of a material fact or omit 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; provided , however , that the Company
makes no representation or warranty with respect to any statement
contained in the Pricing Disclosure Materials in reliance upon and
in conformity with information concerning the Placement Agent and
furnished in writing by the Placement Agent to the Company
expressly for use in the Pricing Disclosure Materials, as set forth
in Section 8(b).
Each
Issuer Free Writing Prospectus conformed or will conform in all
material respects to the requirements of the Act and the Rules and
Regulations on the date of first use, and the Company has complied
or will comply with any filing requirements applicable to such
Issuer Free Writing Prospectus pursuant to the Rules and
Regulations. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the
public offer and sale of the Shares, did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement, the
Pricing Disclosure Materials or the Prospectus, including any
document incorporated by reference therein that has not been
superseded or modified. The Company has not made any offer relating
to the Shares that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the Placement
Agent. The Company has retained in accordance with the Rules and
Regulations all Issuer Free Writing Prospectuses that were not
required to be filed pursuant to the Rules and Regulations.
The
Company is, and at the Closing Date will be, duly organized,
validly existing and in good standing under the laws of the State
of Delaware. The Company (i) has, and at the Closing Date will
have, full power and authority to conduct all the activities
conducted by it, to own or lease all the assets owned or leased by
it and to conduct its business as described in the Registration
Statement and the Prospectus and (ii) is, and at the Closing
Date will be, duly licensed or qualified to do business and in good
standing as a foreign organization in all jurisdictions in which
the nature of the activities conducted by it or the character of
the assets owned or leased by it makes such licensing or
qualification necessary; except, in each case, where the failure to
be so qualified or in good standing or have such power or authority
would not, individually or in the aggregate, have a material
adverse effect or would not reasonably be expected to have a
material adverse effect on or affecting the business, properties,
management, consolidated financial position, stockholders’
equity, prospects or results of operations of the Company and its
Subsidiaries taken as a whole (a “Material
5
Adverse
Effect”). Complete and correct copies of the articles or
certificate of incorporation and of the bylaws of the Company and
all amendments thereto have been delivered or made available to the
Placement Agent, and no changes therein will be made subsequent to
the date hereof and prior to the Closing Date.
The
Company’s only subsidiaries (each a “Subsidiary”
and collectively the “Subsidiaries”) are listed on
Schedule 1 to this Agreement. Each Subsidiary has been duly
organized and is validly existing as a corporation in good standing
under the laws of its jurisdiction of formation. Each Subsidiary is
duly qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of its
properties (owned, leased or licensed) or the nature or conduct of
its business makes such qualification necessary, except for those
failures to be so qualified or in good standing which will not,
individually or in the aggregate, have a Material Adverse Effect.
All of the shares of issued capital stock of each subsidiary of the
Company have been duly authorized and validly issued, are fully
paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of any lien, encumbrance, claim, security
interest, restriction on transfer, shareholders’ agreement,
voting trust or other defect of title whatsoever.
The
issued and outstanding shares of capital stock of the Company have
been validly issued, are fully paid and nonassessable and, other
than as set forth in the Registration Statement, are not subject to
any preemptive rights, rights of first refusal or similar rights.
The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus as of the dates
referred to therein. The descriptions of the securities of the
Company in the Registration Statement and the Prospectus are, and
at the Closing Date will be, complete and accurate in all respects.
Except as set forth in the Registration Statement and the
Prospectus, the Company does not have outstanding any rights (other
than stock options or other equity awards under the Company’s
equity incentive and stock purchase plans) or warrants to subscribe
for, or any securities or obligations convertible into, or
exchangeable for, or any contracts or commitments to issue or sell,
any shares of capital stock or other securities.
The
Company has full legal right, power and authority to enter into
this Agreement and the proposed purchase agreements to be executed
by each Investor and the Company, substantially in the form
attached hereto as Exhibit A (the “Investor Purchase
Agreements,” and together with this Agreement, the
“Transaction Documents”) and perform the transactions
contemplated hereby and thereby. The Transaction Documents have
been authorized and validly executed and delivered by the Company
and are legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their respective
terms, subject to the effect of applicable bankruptcy, insolvency
or similar laws affecting creditors’ rights generally and
equitable principles of general applicability.
The
issuance and sale of the Shares have been duly authorized by the
Company, and the Shares, when issued and paid for in accordance
with the Transaction Documents, will be duly and validly issued,
fully paid and nonassessable and will not be subject to preemptive
or similar rights. The holders of the Shares will not be subject to
personal liability by reason of being such holders. The Shares,
when issued, will conform in all material respects to the
description thereof set forth in or incorporated into Pricing
Disclosure Materials and the Prospectus.
6
The
consolidated financial statements and the related notes included in
the Registration Statement, the Pricing Disclosure Materials and
the Prospectus present fairly, in all material respects, the
financial condition of the Company and its consolidated
Subsidiaries as of the dates thereof and the results of operations
and cash flows at the dates and for the periods covered thereby in
conformity with generally accepted accounting principles
(“GAAP”). Any pro forma financial statements or data
included in the Registration Statement, the Pricing Disclosure
Materials and the Prospectus comply in all material respects with
the requirements of the Act and the Exchange Act, and the
assumptions used in the preparation of such pro forma financial
statements and data are reasonable, the pro forma adjustments used
therein are appropriate to give effect to the transactions or
circumstances described therein and the pro forma adjustments have
been properly applied to the historical amounts in the compilation
of those statements and data. No other financial statements or
schedules of the Company, any Subsidiary or any other entity are
required by the Act or the Rules and Regulations to be included in
the Registration Statement, the Pricing Disclosure Materials or the
Prospectus. All disclosures contained in the Registration
Statement, the Pricing Disclosure Materials and the Prospectus
regarding “non-GAAP financial measures” (as such term
is defined by the Rules and Regulations) comply with
Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Act, to the extent applicable. The
Company and the Subsidiaries do not have any material liabilities
or obligations, direct or contingent (including any off-balance
sheet obligations or any “variable interest entities”
within the meaning of Financial Accounting Standards Board
Interpretation No. 46), of a character required to be
described in or to be filed as an exhibit to the Registration
Statement that are not disclosed in the Registration Statement, the
Pricing Disclosure Materials and the Prospectus or so filed.
Grant
Thornton LLP (the “Accountants”), who have reported on
such consolidated financial statements and schedules, are
registered independent public accountants with respect to the
Company as required by the Act and the Rules and Regulations and by
the rules of the Public Accounting Oversight Board. The
consolidated financial statements of the Company and the related
notes and schedules included in the Registration Statement and the
Prospectus have been prepared in conformity with the requirements
of the Act and the Rules and Regulations and present fairly the
information shown therein.
Except
as set forth in the Registration Statement, the Pricing Disclosure
Materials and the Prospectus, there is and has been no material
failure on the part of the Company, or to the Company’s
Knowledge after due inquiry, any of the Company’s directors
or officers, in their capacities as such, to comply with any
applicable provisions of the Sarbanes Oxley Act of 2002 and the
rules and regulations promulgated therewith (the “Sarbanes
Oxley Act”). Each of the principal executive officer and the
principal financial officer of the Company (or each former
principal executive officer of the Company and each former
principal financial officer of the Company as applicable) has made
all certifications required by Sections 302 and 906 of the
Sarbanes-Oxley Act with respect to all reports, schedules, forms,
statements and other documents required to be filed by it with the
Commission. For purposes of the preceding sentence,
“principal executive officer” and “principal
financial officer” shall have the meanings given to such
terms in the Sarbanes-Oxley Act. The Company has taken all
reasonable actions necessary to ensure that it is in compliance in
all material respects with all provisions of the Sarbanes-Oxley Act
that are in effect and with which the Company is required to
comply.
7
The
Company and its Subsidiaries maintain systems of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. The
Company has established disclosure controls and procedures (as
defined in Exchange Act Rules 13a-14 and 15d-14) for the
Company and designed such disclosure controls and procedures to
provide reasonable assurance that material information relating to
the Company and its Subsidiaries is made known to the certifying
officers by others within those entities, particularly during the
period in which the Company’s Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, is being
prepared. The Company’s certifying officers have evaluated
the effectiveness of the Company’s disclosure controls and
procedures as of the end of the period covered by the Form 10-K for
the year ended December 31, 2007 (such date, the
“Evaluation Date”). The Company presented in its Form
10-K for the year ended December 31, 2007 the conclusions of
the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the
Evaluation Date.
Except
as set forth in or otherwise contemplated or disclosed in the
Registration Statement, the Pricing Disclosure Materials and the
Prospectus, since the date of the most recent consolidated
financial statements of the Company included or incorporated by
reference in the most recent Preliminary Prospectus, (i) there
has not been any change in the capital stock of the Company or
long-term debt of the Company or any Subsidiary or any dividend or
distribution of any kind declared, set aside for payment, paid or
made by the Company on any class of capital stock, or any material
adverse change, in the business, properties, management,
consolidated financial position, stockholders’ equity, or
results of operations of the Company and its Subsidiaries taken as
a whole (a “Material Adverse Change”), (ii) there
has not been any change or any development involving a prospective
Material Adverse Change whether or not occurring in the ordinary
course of business, and (iii) neither the Company nor any
Subsidiary has sustained any material loss or material interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor disturbance
or dispute or any action, order or decree of any court or
arbitrator or governmental or regulatory authority.
Except
as set forth in or otherwise contemplated or disclosed in the
Registration Statement, the Pricing Disclosure Materials and the
Prospectus, since the date as of which information is given in the
most recent Preliminary Prospectus or the Pricing Disclosure
Materials, neither the Company nor any Subsidiary has entered into
any transaction or agreement, not in the ordinary course of
business, that is material to the Company and its Subsidiaries
taken as a whole or incurred any liability or obligation, direct or
contingent, not in the ordinary course of business, that is
material to the Company and its Subsidiaries taken as a
whole.
The
Company and each Subsidiary has good and valid title in fee simple
to all items of real property and good and valid title to all
tangible personal property described
8
in the
Registration Statement, the Pricing Disclosure Materials or the
Prospectus as being owned by them that are material to the
businesses of the Company and its Subsidiaries taken as a whole, in
each case free and clear of all liens, encumbrances and claims
except those that (i) do not materially interfere with the use
made and proposed to be made of such property by the Company and
its Subsidiaries or (ii) would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse
Effect. Any real property described in the Registration Statement,
the Pricing Disclosure Materials or the Prospectus as being leased
by the Company or any Subsidiary that is material to the business
of the Company and its Subsidiaries taken as a whole is held by
them under valid, existing and enforceable leases, except where the
failure of such leases to be valid or enforceable (A) does not
materially interfere with the use made or proposed to be made of
such property by the Company and its Subsidiaries or (B) would
not be reasonably expected, individually or in the aggregate, to
have a Material Adverse Effect.
The
Company is not, nor upon completion of the transactions
contemplated herein will it be, an “investment company”
or “promoter” or “principal underwriter”
for an “investment company,” as such terms are defined
in the Investment Company Act of 1940, as amended (the
“Investment Company Act”).
There
are no legal, governmental or regulatory actions, suits or
proceedings pending, nor any legal, governmental or regulatory
investigations, to which the Company or any Subsidiary is a party
or to which any property of the Company or any Subsidiary is the
subject that, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect or materially and
adversely affect the ability of the Company to perform its
obligations under the Transaction Documents (collectively, the
“Actions”); to the Company’s Knowledge, no such
Actions are threatened by any governmental or regulatory authority
or threatened by others; and there are no current or, to the
Company’s Knowledge, pending legal, governmental or
regulatory investigations, actions, suits or proceedings that are
required under the Act to be described in the Registration
Statement, the Pricing Disclosure Materials or the Prospectus that
are not so described.
The
Company and each Subsidiary has, and at the Closing Date will have,
(i) all governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to carry on its
respective business as presently conducted except where the failure
to have such governmental licenses, permits, consents, orders,
approvals and other authorizations would not have a Material
Adverse Effect, (ii) complied with all laws, regulations and
orders applicable to either it or its business, except where the
failure to so comply would not have a Material Adverse Effect, and
(iii) performed all its obligations required to be performed, and
is not, and at the Closing Date will not be, in default, under any
indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement, lease, contract or
other agreement or instrument (collectively, a “contract or
other agreement”) to which it is a party or by which its
property is bound or subject, except where such default would not
have a Material Adverse Effect, and, to the Company’s
Knowledge, no other party under any material contract or other
agreement to which it is a party is in default in any respect
thereunder where such default would have a Material Adverse Effect.
The Company and its Subsidiaries are not in violation of any
provision of their respective organizational or governing
documents.
9
All
consents, authorizations, approvals and orders required for the
execution and delivery of the Transaction Documents have been
obtained, except such as may be required under state securities or
Blue Sky Laws or the by-laws and rules of the Financial Industry
Regulatory Authority, Inc. (“FINRA”) or the NASDAQ
Global Market in connection with the distribution of the Shares by
the Placement Agent.
Neither
the execution of the Transaction Documents, nor the issuance,
offering or sale of the Shares, nor the consummation of any of the
transactions contemplated herein and therein, nor the compliance by
the Company with the terms and provisions hereof and thereof will
conflict with, or will result in a breach of, any of the terms and
provisions of, or has constituted or will constitute a default
under, or has resulted in or will result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any Subsidiary pursuant to the terms of
any contract or other agreement to which the Company or its
Subsidiaries may be bound or to which any of the property or assets
of the Company or its Subsidiaries is subject, except (i) such
conflicts, breaches or defaults as may have been waived and
(ii) such conflicts, breaches and defaults that would not have
a Material Adverse Effect; nor will such action result (x) in
any violation of the provisions of the organizational or governing
documents of the Company or any Subsidiary, or (y) in any
material violation of the provisions of any statute or any order,
rule or regulation applicable to the Company or any Subsidiary or
of any court or of any federal, state or other regulatory authority
or other government body having jurisdiction over the Company or
any Subsidiary.
There
is no document or contract of a character required to be described
in the Registration Statement, the Pricing Disclosure Materials or
the Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed as required. All such
contracts to which the Company is a party have been authorized,
executed and delivered by the Company, constitute valid and binding
agreements of the Company, and are enforceable against the Company
in accordance with the terms thereof, subject to the effect of
applicable bankruptcy, insolvency or similar laws affecting
creditors’ rights generally and equitable principles of
general applicability.
The
Company and its directors, officers or controlling persons have not
taken, directly or indirectly, any action intended, or which might
reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Common Stock.
No
holder of securities of the Company has rights to the registration
of any securities of the Company as a result of the filing of the
Registration Statement or the transactions contemplated by this
Agreement, except for such rights as have been waived or
satisfied.
The
Common Stock is currently listed on the NASDAQ Global Market.
Except as disclosed in the Registration Statement, the Pricing
Disclosure Materials or the Prospectus, the Company has not, in the
12 months preceding the date hereof, received notice from the
NASDAQ Global Market to the effect that the Company is not in
compliance with the listing or maintenance requirements. The
Company has no reason of which it is currently
10
aware to
believe that it will not in the foreseeable future continue to be,
in compliance with all such listing and maintenance
requirements.
The
Company is not involved in any material labor dispute nor, to the
Company’s Knowledge, is any such dispute known by the Company
to be threatened.
The
business and operations of the Company and each of its Subsidiaries
have been and are being conducted in compliance with all applicable
laws, ordinances, rules, regulations, licenses, permits, approvals,
plans, authorizations or requirements relating to occupational
safety and health, or pollution, or protection of health or the
environment (including, without limitation, those relating to
emissions, discharges, releases or threatened releases of
pollutants, contaminants or hazardous or toxic substances,
materials or wastes into ambient air, surface water, groundwater or
land, or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
chemical substances, pollutants, contaminants or hazardous or toxic
substances, materials or wastes, whether solid, gaseous or liquid
in nature) of any governmental department, commi
|
