Exhibit
10.1
INDIA GLOBALIZATION CAPITAL,
INC.
Common Stock
ATM AGENCY
AGREEMENT
October 13, 2009
INDIA GLOBALIZATION CAPITAL, INC., a Maryland
corporation (the “ Company ”), proposes, subject
to the terms and conditions stated herein, to issue and sell from
time to time through ENCLAVE CAPITAL LLC, as sales agent (the
“ Agent ”), shares of the Company’s common
stock, par value $.0001 per share (the “ Common Shares
”), having an aggregate offering price of up to $4,000,000 on
the terms set forth in this agreement (this “
Agreement ”).
ARTICLE I
DEFINITIONS
Section 1.01 Certain
Definitions . For purposes of this Agreement,
capitalized terms used herein and not otherwise defined shall have
the following respective meanings:
“ Actual Sold Amount ” means
the number of Shares that the Agent has sold during the Selling
Period.
“ Affiliate ” of
a Person means another Person that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under
common control with, such first- mentioned Person. The term
“control” (including the terms
“controlling,” “controlled by” and
“under common control with”) means the possession,
direct or indirect, of the power to direct or cause the direction
of the management and policies of a Person, whether through the
ownership of voting securities, by contract or
otherwise.
“ Agency Period ” means the
period commencing on the Effective Date and expiring on the
earliest to occur of (x) the date on which the Agent shall have
sold the Maximum Program Amount pursuant to this Agreement, (y) the
date this Agreement is terminated pursuant to Article VII
and (z) the third anniversary of the date of the Effective
Date .
“ Agent ” has the meaning set
forth in the introductory paragraph of this
Agreement.
“ Agreement ” has the meaning
set forth in the introductory paragraph of this
Agreement.
“ Annual Report ” has the
meaning set forth in Section 3.02 .
“ Base Prospectus ” has the
meaning set forth in Section 3.01 .
“ Code ” has the meaning set
forth in Section 3.21 .
“ Commission ” means the U.S.
Securities and Exchange Commission.
“ Common Shares ” has the
meaning set forth in the introductory paragraph of this
Agreement .
“ Company ” has the meaning
set forth in the introductory paragraph of this
Agreement.
“ Debt Repayment Triggering Event
” has the meaning set forth in Section 3.15
.
“ Default ” has the meaning
set forth in Section 3.15 .
“Effective Date ” has the meaning set forth in Section
2.01(b) .
“ Engagement Letter ” has the
meaning set forth in Section 2.04.
“ Environmental Laws ” has
the meaning set forth in Section 3.28.
“ ERISA ” has the meaning set
forth in Section 3.29 .
“ ERISA Affiliate ” has the
meaning set forth in Section 3.29 .
“ Exchange Act ” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder.
“ Existing Instrument ” has
the meaning set forth in Section 3.15 .
“ FINRA ” has the meaning set
forth in Section 3.15 .
“ Floor Price ”
means the minimum price set by the Company in the Issuance Notice
below which the Agent shall not sell Shares during the applicable
Selling Period, which may be adjusted by the Company at any time
during the Selling Period by delivering written notice of such
change to the Agent and which in no event shall be less than $1.00
without the prior written consent of the Agent, which may be
withheld in the Agent’s sole discretion.
“ Free Writing Prospectus ”
has the meaning set forth in Section 2.03 .
“ Governmental Licenses ” has
the meaning set forth in Section 3.19 .
“ Hazardous Materials ” has
the meaning set forth in Section 3.28 .
“ Governmental Licenses ” has
the meaning set forth in Section 3.18 .
“ Issuance ”
means each occasion on which the Company elects to exercise its
right to deliver an Issuance Notice requiring the Agent to use its
commercially reasonable efforts to sell the Common Shares as
specified in such Issuance Notice, subject to the terms and
conditions of this Agreement.
“ Issuance Amount ” means the
aggregate Sales Price of the Shares to be sold by the Agent with
respect to any Issuance.
“ Issuance Date ” means any
Trading Day during the Agency Period that an Issuance Notice is
delivered pursuant to Section 2.03(b) .
“ Issuance Notice
” means a written notice delivered to the Agent by the
Company in accordance with this Agreement in the form attached
hereto as Exhibit A that is executed by its Chief Executive
Officer , the President or the Chief Financial Officer
.
“ Issuance Price ” means
the Sales Price less the Selling Commission .
“ Issuance Supplement ”
has the meaning set forth in Section 3.01 .
“ Intellectual Property Rights
” has the meaning set forth in Section 3.17
.
“ Investment Company Act ”
has the meaning set forth in Section 3.21 .
“ Material Adverse Change ”
has the meaning set forth in Section 3.07 .
“ Maximum Program Amount ”
means Common Shares with an aggregate Sales Price of the lesser of
(1) $4,000,000 and (2) the aggregate amount of Shares registered
under the Registration Statement.
“ Money Laundering Laws ” has
the meaning set forth in Section 3.33 .
“ OFAC ” has the meaning set
forth in Section 3.34 .
“ Original Registration
Statement ” has the meaning set forth in Section
3.01 .
“ PCAOB ” has the meaning set
forth in Section 3.08 .
“ Person ” means
an individual or a corporation, partnership, limited liability
company, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental authority or other
entity of any kind.
“ preliminary prospectus ”
has the meaning set forth in Section 3.01.
“ Principal Market ” means
the NYSE Amex or such other national securities exchange on which
the Common Shares, including any Shares, are then
listed.
“ Prospectus ” has the
meaning set forth in Section 3.01 .
“ PTO ” has the meaning set
forth in Section 3.17 .
“ Registration Statement ”
has the meaning set forth in Section 3.01 .
“ Regulation M ” has the
meaning set forth in Section 3.23 .
“ Related Judgment ” has the
meaning set forth in Section 8.02 .
“ Related Proceedings ” has
the meaning set forth in Section 8.02 .
“ Representation Date ” has
the meaning set forth in the introductory paragraph of
Article III .
“ Rule 102 ” has the
meaning set forth in the introductory paragraph of this
Agreement.
“ Sales Price ”
means the actual sale execution price of each Share placed by the
Agent pursuant to this Agreement, whether on the Principal Market
in the case of ordinary brokers’ transactions or as otherwise
agreed by the parties in other methods of sale.
“ Securities Act ” means the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder.
“ Selling Commission ” means
3% of the aggregate proceeds received by the Company pursuant to
the sale of Shares hereunder.
“ Selling Period ” means the
period of one to twenty consecutive Trading Days (as determined by
the Company in the Company’s sole discretion and specified in
the applicable Issuance Notice) following the Trading Day on which
an Issuance Notice is delivered pursuant to Section 2.03(b)
.
“ Settlement Date
” means the third
(3 rd ) business day following each Trading Day during
the Selling Period on which Shares are sold pursuant to this
Agreement, when the Company shall deliver to the Agent the amount
of Shares sold on such Trading Day and the Agent shall deliver to
the Company the Issuance Price received on such sales
.
“ Shares ” shall mean the
Company’s Common Shares issued or issuable pursuant to this
Agreement.
“ Side Letter ” has the
meaning set forth in the definition of Selling
Commission.
“ Subsidiary ” or “
Subsidiaries ” has the meaning set forth in
Section 3.12 .
“ Specified Courts ” has the
meaning set forth in Section 8.02 .
“ Trading Day ” means any day
on which the Principal Market is open for trading.
“ Triggering Event ” has the
meaning set forth in Section 4.13 .
ARTICLE II
ISSUANCE AND SALE OF COMMON
SHARES
Section 2.01 (a)
Agreement Regarding Issuance and Sale of Shares
. Upon the terms and subject to the conditions of this
Agreement, the Company may issue Shares through the Agent and the
Agent shall use its commercially reasonable efforts to place such
Shares, with an aggregate Sales Price of up to the Maximum Program
Amount, based on and in accordance with such Issuance Notices as
the Company may deliver to the Agent, during the Agency
Period.
(b)
Agreement Effectiveness . This Agreement shall be
deemed effective on the date on which each of the following
conditions has been satisfied (the “ Effective Date
”):
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the execution
and delivery of this Agreement by the parties hereto;
and
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the
satisfaction by the Company of the conditions set forth in
Section 5.01 , with the understanding that the form and
substance of (A) the comfort letters required by Section
5.01(e) shall be in the forms contained in Exhibit F and
(B) the legal opinions required by Section 5.01(f) shall be
in the forms contained in Exhibits B through E
.
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Section 2.02 Mechanics of
Issuances .
(a)
Issuance Notice . Upon the terms and subject to
the conditions set forth herein, on any Trading Day during the
Agency Period on which the conditions set forth in
Sections 5.01 and 5.02 shall have been
satisfied, the Company may exercise its right to request an
Issuance by the delivering to the Agent an Issuance Notice;
provided, however , that (i) in no event may the Company
deliver an Issuance Notice to the extent that (I) the sum of (x)
the Sales Price of the requested Issuance Amount, plus (y) the
aggregate Sales Price of all Shares issued under all previous
Issuances effected pursuant to this Agreement, would exceed the
Maximum Program Amount; and (ii) prior to delivery of any Issuance
Notice, the Selling Period for any previous Issuance Notice shall
have expired or been terminated. An Issuance Notice shall be
considered delivered on the Trading Day that it is received by
e-mail to the persons identified in Section 8.04 and
confirmed by the Company by telephone (including a voicemail
message to the persons identified in Section 8.04 ), with
the understanding that, with adequate prior written notice, the
Agent may modify the list of such persons from time to
time.
(b)
Agent Efforts . Upon the terms and subject to the
conditions set forth in this Agreement, upon the receipt of an
Issuance Notice, the Agent will use its commercially reasonable
efforts consistent with its normal sales and trading practices to
place the Shares, subject to, and in accordance with the
information specified in, the Issuance Notice into the Principal
Market and otherwise in accordance with the terms of such Issuance
Notice, unless the sale of the Shares described therein has been
suspended, cancelled or otherwise terminated in accordance with the
terms of this Agreement. For the avoidance of doubt, the
parties to this Agreement may modify an Issuance Notice at any time
provided they both agree in writing to any such
modification.
(c)
Method of Offer and Sale . The Shares may be
offered and sold (i) in privately negotiated transactions (if and
only if the parties hereto have so agreed in writing) or (ii) by
any other method or payment permitted by law deemed to be an
“at the market” offering as defined in Rule 415 under
the Securities Act, including sales made directly on the Principal
Market or sales made to or through a market maker or through an
electronic communications network. Nothing in this
Agreement shall be deemed to require either party to agree to the
method of offer and sale specified in the preceding sentence, and
the method of placement of any Shares by the Agent shall be at the
Agent’s discretion.
(d)
Confirmation to the Company . The Agent will
provide written confirmation to the Company pursuant to Section
8.04 no later than the opening of the Trading Day next
following the Trading Day on which it has placed Shares hereunder
setting forth the number of shares sold on such Trading Day, the
corresponding Sales Price and the Issuance Price payable to the
Company in respect thereof.
(e)
Settlement . Each Issuance will be settled on the
applicable Settlement Date for such Issuance and, subject to the
provisions of Article V , on or before each Settlement Date,
the Company will, or will cause its transfer agent to,
electronically transfer the Shares being sold by crediting the
Agent or its designee’s account at The Depository Trust
Company through its Deposit/Withdrawal At Custodian (DWAC) System,
or by such other means of delivery as may be mutually agreed upon
by the parties hereto and, upon receipt of such Shares, which in
all cases shall be freely tradeable, transferable, registered
shares in good deliverable form, the Agent will deliver the related
Issuance Price in same day funds delivered to an account designated
by the Company prior to the Settlement Date.
(f)
Suspension or Termination of Sales . Consistent
with standard market settlement practices, the Company or the Agent
may, upon notice to the other party hereto in writing or by
telephone (confirmed immediately by verifiable email pursuant to
Section 8.04 ), suspend any sale of Shares, and the Selling
Period shall immediately terminate; provided, however , that
(i) such suspension and termination shall not affect or impair
either party’s obligations with respect to any Shares placed
or sold hereunder prior to the receipt of such notice; (ii) if the
Company suspends or terminates any sale of Shares after the Agent
confirms such sale, the Company shall still be obligated to comply
with Section 2.03 regarding the payment of the applicable
Selling Commission and reimbursement of the Agent’s expenses;
and (iii) if the Company defaults in its obligation to deliver
Shares on a Settlement Date, the Company agrees that it will hold
the Agent harmless against any loss, claim, damage or expense
(including, without limitation, penalties, interest and reasonable
legal fees and expenses), as incurred, arising out of or in
connection with such default by the Company. The parties hereto
acknowledge and agree that, in performing its obligations under
this Agreement, the Agent may borrow Common Shares from stock
lenders, and may use the Shares to settle or close out such
borrowings. The Company agrees that no such notice shall
be effective against the Agent unless it is made to one of the
individuals named in Section 8.04.
(g)
No Guarantee of Placement, Etc. The Company
acknowledges and agrees that (i) there can be no assurance that the
Agent will be successful in placing Shares and (ii) the Agent will
incur no liability or obligation to the Company or any other Person
if it does not sell Shares. In acting hereunder, the
Agent will not be obligated to purchase any Shares for its own
account or otherwise and will be acting as agent for the Company
and not as principal.
Section 2.03 Use of Free
Writing Prospectus . Neither the Company nor the Agent has
prepared, used, referred to or distributed, or will prepare, use,
refer to or distribute, without the other party’s prior
written consent, any “written communication”
that constitutes a “free writing prospectus” as
such terms are defined in Rule 405 under the Securities Act
with respect to the offering contemplated by this Agreement
(any such free writing prospectus being referred to herein as a
“ Free Writing Prospectus ”).
Section 2.04 Fees &
Reimbursement of Expenses . (a) Fees
. As compensation for services rendered, on or before
the any Settlement Date, the Company shall pay to the Agent the
Selling Commission regarding the applicable Issuance Amount
(including with respect to any suspended or terminated sale
pursuant to Section 2.01(f)) , by wire transfer of
immediately available funds to an account or accounts designated by
the Agent.
(b)
Reimbursement of Expenses . The Company agrees,
whether or not any Shares are placed or sold pursuant to this
Agreement, to pay all costs, fees and expenses incurred in
connection with the performance of its obligations hereunder and,
from time to time upon receipt of an invoice, to reimburse the
Agent for its reasonable expenses (including out-of-pocket expenses
and the fees and expenses of counsel to the Agent) as set forth in
the Side Letter, provided that all such expenses that have accrued
by the Agreement Closing Date shall be paid on such
date. The payment of the Agent’s expenses pursuant
to this paragraph shall be paid by wire transfer of immediately
available funds to an account or accounts designated by the
Agent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY
The Company represents and warrants to the Agent
that as of (1) the Effective Date, (2) each Issuance Date, (3) each
Settlement Date and (4) any time that the Registration Statement or
the Prospectus shall be amended or supplemented (each of the times
referenced above is referred to herein as a “
Representation Date ”), except as may be disclosed in
the Prospectus (including any documents incorporated by reference
therein and any supplements thereto) on or before a Representation
Date:
Section 3.01 Registration
Statement . The Company has prepared and filed with
the Commission a shelf registration statement on Form S-3
(File No. 333-160993) that contains a base prospectus (the
“ Base Prospectus ”). Such
registration statement registers the issuance and sale by the
Company of the Shares under the Securities Act. Such
registration statement (and any further registration statements
that may be filed by the Company for the purpose of registering
additional Shares to be sold pursuant to this Agreement), including
any information deemed to be a part thereof pursuant to Rule 430B
under the Securities Act, including all documents incorporated or
deemed to be incorporated therein by reference pursuant to Item 12
of Form S-3 under the Securities Act as from time to time amended
or supplemented, is herein referred to as the “
Registration Statement ,” and the prospectus
constituting a part of such registration statement, together with
any prospectus supplement and any pricing supplement filed with the
Commission pursuant to Rule 424(b) under the Securities Act
relating to a particular issuance of the Shares (each, an “
Issuance Supplement ”), including all documents
incorporated or deemed to be incorporated therein by reference
pursuant to Item 12 of Form S-3 under the Securities Act, in each
case, as from time to time amended or supplemented, is referred to
herein as the “ Prospectus ,” except that if any
revised prospectus is provided to the Agent by the Company for use
in connection with the offering of the Shares that is not required
to be filed by the Company pursuant to Rule 424(b) under the
Securities Act, the term “ Prospectus ” shall
refer to such revised prospectus from and after the time it is
first provided to the Agent for such use. The
Registration Statement at the time it originally became effective
is herein called the “ Original Registration Statement
.” As used in this Agreement, the terms
“amendment” or “supplement” when applied to
the Registration Statement or the Prospectus shall be deemed to
include the filing by the Company with the Commission of any
document under the Exchange Act after the date hereof that is or is
deemed to be incorporated therein by reference.
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” in the Registration Statement or the
Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and
schedules and other information which is or is deemed to be
incorporated by reference in or otherwise deemed under the
Securities Act to be a part of or included in the Registration
Statement or the Prospectus, as the case may be, as of any
specified date; and all references in this Agreement to amendments
or supplements to the Registration Statement or the Prospectus
shall be deemed to mean and include, without limitation, the filing
of any document under the Exchange Act which is or is deemed to be
incorporated by reference in or otherwise deemed under the
Securities Act to be a part of or included in the Registration
Statement or the Prospectus, as the case may be, as of any
specified date.
Section 3.02 Compliance
with Registration Requirements . (a) At the time the
Registration Statement was originally declared effective and at the
time the Company’s Annual Report on Form 10-K for the
fiscal year ended March 31, 2009 (the “ Annual
Report ”) was filed with the Commission, the Company met
the then applicable requirements for use of Form S-3 under the
Securities Act. The Company meets the requirements for
use of Form S-3 under the Securities Act specified in FINRA
Rule 5110(b)(7)(C)(i).
(b) The
Original Registration Statement has been declared effective by the
Commission. The Company has complied to the
Commission’s satisfaction with all requests of the Commission
for additional or supplemental information. No stop
order suspending the effectiveness of the Registration Statement is
in effect and no proceedings for such purpose have been instituted
or are pending or, to the knowledge of the Company, are
contemplated or threatened by the Commission, and any request on
the part of the Commission for additional information has been
complied with. The Registration Statement is not the
subject of a pending proceeding or examination under
Section 8(d) or Section 8(e) of the Securities Act, and
the Company is not the subject of a pending proceeding under
Section 8A of the Securities Act in connection with the
offering and sale of the Shares.
(c)
The Registration Statement, as amended complies in all
material respects with the requirements of the Securities Act, and
the Registration Statement, as amended, does not 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, as amended or
supplemented, conforms in all material respects to the requirements
of the Securities Act and does not contain an untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. There are no contracts or
other documents required to be described in the Prospectus or to be
filed as exhibits to the Registration Statement that have not been
described or filed as required.
The representations and warranties in this
Section 3.02 shall not apply to statements in or omissions
from the Registration Statement or any post-effective amendment
thereto or the Prospectus or any amendments or supplements thereto
made in reliance upon and in conformity with information furnished
to the Company in writing by the Agent expressly for use in the
Registration Statement or any post-effective amendment thereto or
the Prospectus or any amendment or supplement thereto.
(d)
Ineligible Issuer Status . At the time of filing the
Original Registration Statement, at the earliest time thereafter
that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Securities
Act) of the Shares, and at the date hereof, the Company was not and
is not an “ineligible issuer,” as defined in Rule 405
under the Securities Act.
Section 3.03 Incorporated
Documents . The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with
the requirements of the Exchange Act, as applicable, and, when read
together with the other information in the Prospectus, (i) at the
time the Original Registration Statement became effective, (ii) at
the Effective Date, (iii) at each Issuance Date and (iv) at each
Settlement Date did not, do not and will not 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.
Section 3.04 Authorization,
Execution, Delivery . This Agreement has been duly authorized,
executed and delivered by the Company.
Section 3.05 Authorization
of the Shares . The Shares have been duly authorized for
issuance and sale pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement, will be
validly issued, fully paid and nonassessable; the Shares conform in
all material respects to the description thereof in the
Registration Statement and the Prospectus, and such description
conforms to the rights set forth in the Company’s Amended and
Restated Articles of Incorporation and By-Laws; no holder of the
Shares shall be subject to any personal liability solely by reason
of being such a holder; and the issuance and sale of the Shares is
not subject to any preemptive rights, rights of first refusal or
other similar rights to subscribe for or purchase the
Shares
Section 3.06 No Applicable
Registration or Other Similar Rights . Except as set forth in
the Registration Statement and the Prospectus, there are no persons
with registration or other similar rights to have any equity or
debt securities registered for sale under the Registration
Statement or included in the offering contemplated by this
Agreement.
Section 3.07 No Material
Adverse Change . Except as otherwise disclosed in the
Registration Statement and the Prospectus, subsequent to the
respective dates as of which information is given in the
Registration Statement and the Prospectus: (i) there has been
no material adverse change, or any development that could
reasonably be expected to result in a material adverse change, in
the condition, financial or otherwise, or in the earnings,
business, operations or prospects, whether or not arising from
transactions in the ordinary course of business, of the Company and
the Subsidiaries, considered as one entity (any such change is
called a “ Material Adverse Change ”);
(ii) the Company and the Subsidiaries, considered as one
entity, have not incurred any material liability or obligation,
indirect, direct or contingent, not in the ordinary course of
business or entered into any material transaction or agreement not
in the ordinary course of business; and (iii) there has been
no dividend or distribution of any kind declared, paid or made by
the Company or, except for dividends paid to the Company or other
Subsidiaries, any of the Subsidiaries on any class of capital stock
or repurchase or redemption by the Company or any of the
Subsidiaries of any class of capital stock.
Section 3.08 Independent
Accountants . Yoganandh & Ram, who have expressed their
opinion with respect to the financial statements (which term as
used in this Agreement includes the consolidated financial
statements of the Company and the related notes thereto) and
supporting schedules filed with the Commission as a part of the
Registration Statement and included in the Prospectus, are, to the
knowledge of the Company, after due inquiry, (i) independent public
or certified public accountants as required by the Securities Act
and the Exchange Act, (ii) in compliance with the applicable
requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X and (iii) a registered
public accounting firm as defined by the Public Company Accounting
Oversight Board (the “ PCAOB ”) whose
registration has not been suspended or revoked and who has not
requested such registration to be withdrawn.
Section 3.09 Preparation of
the Financial Statements . The financial statements filed with
the Commission as a part of the Registration Statement and included
in the Prospectus present fairly, in all material respects, the
consolidated financial position of the Company and its subsidiaries
as of and at the dates indicated and the results of their
operations and cash flows for the periods specified. The
supporting schedules included in the Registration Statement present
fairly, in all material respects, the information required to be
stated therein. Such financial statements and supporting
schedules have been prepared in conformity with generally accepted
accounting principles as applied in the United States applied on a
consistent basis throughout the periods involved, except as may be
expressly stated in the related notes thereto. No other
financial statements or supporting schedules are required to be
included in the Registration Statement or the
Prospectus. The financial data set forth in or
incorporated by reference into the Prospectus under the caption
“Selected Financial Data” fairly presents, in all
material respects, the information set forth therein on a basis
consistent with that of the audited financial statements contained
in the Registration Statement and the Prospectus. To the
knowledge of the Company, no person who has been suspended or
barred from being associated with a registered public accounting
firm, or who has failed to comply with any sanction pursuant to
Rule 5300 promulgated by the PCAOB, has participated in or
otherwise aided the preparation of, or audited, the financial
statements, supporting schedules or other financial data filed with
the Commission as a part of the Registration Statement and included
in the Prospectus.
Section 3.10
Company’s Accounting System . The Company and each of
its subsidiaries make and keep accurate books and records and
maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles as applied in the United
States and to maintain accountability for assets; (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 existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences. There has not been and is no
material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and since
March 31, 2009, there has been no change in the
Company’s internal control over financial reporting that has
materially and adversely affected, or is reasonably likely to
materially an