As filed with the Securities and
Exchange Commission on February 4, 2008
Registration No. 333 -
146710
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM S-3
Amendment No. 1
to
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF
1933
INX Inc.
(Exact name of Registrant as
specified in its charter)
|
Delaware |
76-0515249 |
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(State or Other Jurisdiction
ofIncorporation or
Organization) |
(I.R.S.
EmployerIdentification
Number) |
6401 Southwest
Freeway
Houston, TX 77074
(713) 795-2000
(Address, including zip code, and
telephone number, including area code, of Registrant’s principal executive
offices)
James H. Long
Chief Executive
Officer
INX Inc.
6401 Southwest
Freeway
Houston, TX 77074
(713) 795-2000
(Name, address, including zip code,
and telephone number, including area code, of agent for
service)
Copies
to:
Christopher M. Locke,
Esq.
Epstein Becker & Green,
P.C.
250 Park Avenue
New York, New York
10177
(212) 351-4500
Approximate date of commencement of
proposed sale to the public: From time to time after the
effective date of this Registration Statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. £
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. T
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. £
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. £
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. £
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. £
The Registrant hereby amends this
Registration Statement on such date or dates as may be necessary to delay its
effective date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until
the Registration Statement shall become effective on such date as the
Commission, acting pursuant to Section 8(a), may determine.
The information in this preliminary
prospectus is not complete and may be changed without notice. We may not sell
these securities until the registration statement filed with the Securities and
Exchange Commission is effective. This preliminary prospectus is not an offer to
sell these securities, and it is not soliciting an offer to buy these
securities, in any jurisdiction where the offer or sale is not
permitted.
Subject to Completion, Dated February
4, 2008
PRELIMINARY
PROSPECTUS
$100,000,000
INX Inc.
Common Stock and
Warrants
We may
issue our common stock and/or warrants to purchase common stock, from time to
time, in one or more offerings up to $100,000,000 in the
aggregate. We will provide the specific prices and other terms of
these offerings in one or more supplements to this prospectus. Any
supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus
supplement, together with the documents incorporated by reference or deemed
incorporated by reference into this prospectus, carefully before you
invest. This prospectus may not be used to consummate a sale of
securities unless accompanied by a prospectus supplement.
Our
common stock is traded on the Nasdaq Global Market under the symbol
“INXI.” Our public warrants to purchase common stock, which may be
different than the warrants offered hereby, are traded on the Nasdaq Global
Market under the symbol “INXIW”. On February 1, 2008, the closing price of
our common stock was $10.40 per share and the closing price of our warrants
was $1.20 per warrant.
Investing in our securities involves
a high degree of risk. Before buying any securities, you should read
the discussion of material risks of investing in our securities in “Risk
Factors” beginning on page 3 of this prospectus.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of
these securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
This prospectus may not be used to
consummate sales of securities unless accompanied by the applicable prospectus
supplement.
The date
of this prospectus is _______, 2008
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No
dealer, sales representative or any other person has been authorized to give any
information or to make any representations in connection with this offering
other than those contained in or incorporated by reference in this prospectus,
as supplemented or amended from time to time by us, and, if given or made, such
information or representations must not be relied upon as having been authorized
by us. This prospectus does not constitute an offer to sell, or a solicitation
of an offer to buy, nor shall there be any sale of these securities by any
person in any jurisdiction in which such an offer, solicitation or sale would be
unlawful. Neither the delivery of this prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that there has been no
change in our affairs since the date of this prospectus or that the information
contained in this prospectus is correct as of any time subsequent to the date of
this prospectus.
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission using a “shelf” registration process. Under this shelf
registration process, we may from time to time offer and sell, in one or more
offerings, any or all of the securities described in this prospectus, separately
or together, up to an aggregate initial offering price of $100,000,000. This
prospectus provides you with a general description of our securities being
offered. When we issue the shares being offered by this prospectus, we will
provide a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with additional information described
under the heading “Incorporation of certain documents by reference” and “Where
you can find more information.”
This summary highlights selected
information appearing elsewhere or incorporated by reference in this prospectus
and may not contain all the information that is important to
you. This prospectus includes information about the securities we are
offering as well as information regarding our business and detailed financial
data. You should carefully read this prospectus and the registration statement
of which this prospectus is a part in their entirety before investing in our
securities, including the section entitled “Risk Factors,” and the information
incorporated by reference in this prospectus.
BUSINESS SUMMARY
We are a
provider of Internet Protocol communications solutions for enterprise-class
organizations such as corporations, schools and federal, state and local
governmental agencies. We provide solutions based primarily on Cisco Systems,
Inc. technology and provide our customers with implementation and support
services. We believe that our focus and expertise enables us to better compete
in the markets that we serve. Because we have significant experience
implementing and supporting the critical technology building blocks of Internet
Protocol telephony systems for enterprises, we believe we are well positioned to
deliver superior solutions and services to our customers.
The
convergence of data, voice, and video into a single seamless Internet Protocol
communications infrastructure is increasingly responsible for driving business
benefits through improved business operations. The foundation of a converged
communication platform is a robust, secure, high-performance, high-availability
Internet Protocol network infrastructure. As part of our commitment to full
life-cycle solutions for our customers, we are dedicated to excellence not only
in Internet Protocol telephony voice communications but also in the underlying
network infrastructure components upon which Internet Protocol telephony
depends.
The
Internet Protocol communications solutions we offer are “Cisco-centric,” meaning
they are based primarily on the products and technology of Cisco. These
solutions include design, implementation and support of LAN/WAN routing and
switching, Internet Protocol telephony, voice over IP, network security, network
storage and wireless networks. We offer a full suite of advanced technology
solutions that support the entire life-cycle of Internet Protocol
communications. Our solutions are designed with the complete life-cycle of our
customer’s Internet Protocol communications infrastructure in mind. Within a
finite set of practice areas, we have standardized our design, implementation,
and post-implementation support processes to drive a reliable and scaleable
solution that can be tailored to meet the business objectives of our clients.
Because of our substantial experience and technical expertise in the design,
implementation and support of Internet Protocol communications solutions, we
believe we are well-positioned to take advantage of what we believe to be a
growing trend of implementation by enterprise organizations of Internet Protocol
telephony and voice over Internet Protocol technology, and the use by enterprise
organizations of the Internet Protocol network as the platform for all forms of
communications.
The
market for Internet Protocol communications solutions is extremely competitive.
We compete with larger and better financed entities. We currently have thirteen
physical offices, which are located in Texas, California, Idaho, Massachusetts,
New Mexico, Oregon, Washington and Washington DC. We primarily market to
enterprise-class organizations headquartered in or making purchasing decisions
from markets that we serve with branch offices. We plan to continue to expand to
additional markets throughout the U.S. by establishing additional branch
offices in other markets, either by opening additional new offices or through
acquisition.
We derive
revenue from sales of both products and services. Our product sales consist
primarily of sales of Cisco brand products. Our services revenues are derived
from two principal types of services: professional services that include design
and implementation engineering services, and post-sale support services, which
consist of remote monitoring and managed services for enterprise network
infrastructure, which we offer through our NetSurant branded service
offering.
Our
principal executive offices are located at 6401 Southwest Freeway, Houston,
Texas 77074, and our telephone number is (713) 795-2000.
An investment in our securities
involves various risks. You should carefully consider the following risk factors
and other information incorporated by reference herein before deciding to
purchase our securities.
We have a history of losses and may
continue to incur losses.
We
incurred a net loss from continuing operations in each fiscal year since 1999,
except fiscal 2006, 2005, and 2003. During 2005 our income from continuing
operations was $812 excluding the noncash charge for remeasurement of certain
stock options. We cannot assure you that profitability will be achieved or
continue in upcoming quarters or years. In order to continue profitability, we
will have to maintain or increase our operating margin. We cannot assure you
that we will be able to continue to achieve improved operating margins, or that
operating margin will not decrease in the future. If we are unable to
increase revenue, if our gross margin decreases, or if we are unable to control
our operating expenses, our business could produce losses. We have only recently
become profitable and are in a rapidly changing industry. In addition, our
business depends upon winning new contracts with new customers, the size of
which may vary from contract to contract. When we open new branch offices to
expand our geographic presence, we expect the newly opened branch offices to
produce operating losses for a period of six months to over one year. We plan to
open multiple new branch offices in the near future. Whether we are able to
remain profitable in the future will depend on many factors, but primarily upon
the commercial acceptance of Internet Protocol telephony products and services,
specifically those developed and marketed by Cisco.
Our success is dependent upon
maintaining our relationship with Cisco.
Substantially
all of our revenue for the years ended December 31, 2006, 2005, and 2004
was derived from the sale of Cisco products and related services. We anticipate
that these products and related services will account for the majority of our
revenue for the foreseeable future. We have a contract with Cisco to purchase
the products that we resell, and we purchase substantially all of our Cisco
products directly from Cisco. Cisco can terminate this agreement on relatively
short notice. Cisco has designated us an authorized reseller and we receive
certain benefits from this designation, including special pricing and payment
terms. We have in the past, and may in the future, purchase Cisco-centric
products from other sources. When we purchase Cisco-centric products from
sources other than Cisco, the prices are typically higher and the payment terms
are not as favorable. Accordingly, if we are unable to purchase directly from
Cisco and maintain our status as an authorized reseller of Cisco network
products, our business could be significantly harmed. If we are unable to
purchase Cisco products from other sources on terms that are comparable to the
terms we currently receive, our business would be harmed and our operating
results and financial condition would be materially and adversely
affected.
Our success depends upon broad market
acceptance of Internet Protocol telephony.
The
market for Internet Protocol telephony products and services is relatively new
and is characterized by rapid technological change, evolving industry standards
and strong customer demand for new products, applications and services. As is
typical of a new and rapidly evolving industry, the demand for, and market
acceptance of, recently introduced Internet Protocol telephony products and
services are highly uncertain. We cannot assure you that the use of Internet
Protocol telephony will become widespread. The commercial acceptance of Internet
Protocol telephony products, including Cisco-centric products, may be affected
by a number of factors including:
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quality
of infrastructure; |
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equipment,
software or other technology
failures; |
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inconsistent
quality of service; |
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poor
voice quality over Internet Protocol
networks; and |
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lack
of availability of cost-effective, high-speed network
capacity. |
If the
market for Internet Protocol telephony fails to develop, develops more slowly
than we anticipate, or if Internet Protocol telephony products fail to achieve
market acceptance, our business will be adversely affected.
Although our success is generally
dependent upon the market acceptance of Internet Protocol telephony, our success
also depends upon a broad market acceptance of Cisco-centric Internet Protocol telephony.
We cannot
assure you that the Cisco-centric Internet Protocol telephony products we offer
will obtain broad market acceptance. Competition, technological advances and
other factors could reduce demand for, or market acceptance of, the
Cisco-centric Internet Protocol telephony products and services we offer. In
addition, new products, applications or services may be developed that are
better adapted to changing technology or customer demands and that could render
our Cisco-centric products and services unmarketable or obsolete. To compete
successfully, the Cisco-centric Internet Protocol telephony products we offer
must achieve broad market acceptance and we must continually enhance our related
software and customer services in a timely and cost- effective manner. If the
Cisco-centric Internet Protocol telephony products we offer fail to achieve
broad market acceptance, or if we do not adapt our existing services to customer
demands or evolving industry standards, our business, financial condition and
results of operation could be significantly harmed.
Our business depends on the level of
capital spending by enterprises for communications products and
services.
As a
supplier of Internet Protocol telephony products, applications and services for
enterprises, our business depends on the level of capital spending for
communications products and services by enterprises in our markets. We believe
that an enterprise’s investment in communications systems and related products
and services depends largely on general economic conditions that can vary
significantly as a result of changing conditions in the economy as a whole. The
market for communications products and services may continue to grow at a modest
rate or not at all. If our customers decrease their level of spending on
communications systems and the related products and services, our revenue and
operating results may be adversely affected.
Our profitability depends on Cisco
product pricing and incentive programs.
Our
annual and quarterly gross profits and gross margins on product sales are
materially affected by Cisco product pricing and incentive programs. These
incentive programs currently enable us to qualify for cash rebates or product
pricing discounts and are generally earned based on sales volumes of particular
Cisco products and customer satisfaction levels. We recognized vendor incentives
as a reduction of a cost of sales amounting to $6,303, $2,876 and $3,480 in
2006, 2005 and 2004, respectively, representing 4.0%, 2.7%, and 4.9% of total
revenues. From time to time Cisco changes the criteria upon which qualification
for these incentives are based and there is no assurance that we will continue
to meet the program qualifications. Cisco is under no obligation to continue
these incentive programs.
A substantial portion of our
customers are based in Texas.
We have
only recently expanded outside of Texas. Because a majority of the customers we
offer our Internet Protocol telephony products to are geographically
concentrated in Texas, our customers’ level of spending on communication
products may be affected by economic condition in Texas, in addition to general
economic conditions in the United States. If demand for Internet Protocol
telephony products by enterprises in Texas decreases, our business, financial
condition and results of operations could be significantly harmed.
Our strategy contemplates rapid
geographic expansion, which we may be unable to achieve, and which is subject to
numerous uncertainties.
A
component of our strategy is to become one of the leading national providers of
Cisco-centric Internet Protocol telephony products. To achieve this objective,
we must either acquire existing businesses or hire qualified personnel in
various locations throughout the country, fund a rapid increase in operations
and implement corporate governance and management systems that will enable us to
function efficiently on a national basis. Identifying and acquiring existing
businesses is a time-consuming process and is subject to numerous risks.
Qualified personnel are in demand, and we expect the demand to increase as the
market for Internet Protocol telephony grows. We will also likely face
competition from our existing competitors and from local and regional
competitors in the markets we attempt to enter. A rapid expansion in the size
and geographical scope of our business is likely to introduce management
challenges that may be difficult to overcome. We cannot assure you that we will
be successful in expanding our operations beyond Texas or achieving our goal of
becoming a national provider. An unsuccessful expansion effort would consume
capital and human resources without achieving the desired benefit and would have
an adverse affect on our business.
We may require additional financing
to achieve expansion of our business operations, and failure to obtain financing may
prevent us from carrying out our business plan.
We may
need additional capital to grow our business. Our business plan calls for the
expansion of sales of our Internet Protocol telephony products to enterprises in
geographical markets where we currently do not operate, including expansion
through acquisitions. If we do not have adequate capital or are not able to
raise the capital to fund our business objectives, we may have to delay the
implementation of our business plan. We can provide no assurance that we will be
able to obtain financing if required, or if financing is available, there is no
assurance that the terms would be favorable to existing stockholders. Our
ability to obtain additional financing is subject to a number of factors,
including general market conditions, investor acceptance of our business plan,
our operating performance and financial condition, and investor sentiment. These
factors may affect the timing, amount, terms or conditions of additional
financing available to us.
We require access to significant
working capital and vendor credit to fund our day-to-day operations. Our failure to
comply with the financial and othercovenants under our working capital
facility could lead to a termination of the agreement and an acceleration of our
outstanding debt.
We
require access to significant working capital and vendor credit to fund our
day-to-day operations. Our credit facility with Castle Pines Capital contains a
number of financial and other covenants. A breach of these financial or other
covenants, unless waived, would be a default under the credit facility. Upon an
event of default, Castle Pines Capital may terminate the facility and/or declare
all amounts outstanding under such facility immediately due and payable. The
acceleration of our debt could have a material adverse effect on our financial
condition and liquidity. Additionally, the amount of working capital available
to us under the credit facility is dependent upon the amount and quality of our
accounts receivable. A significant default or payment delays of our accounts
receivable could materially adversely affect our borrowing base and our access
to sufficient working capital.
We may be unable to manage our growth
effectively, which may harm our business.
The
ability to operate our business in a rapidly evolving market requires effective
planning and management. Our efforts to grow have placed, and are expected to
continue to place, a significant strain on our personnel, management systems,
infrastructure and other resources. Our ability to manage future growth
effectively will require us to successfully attract, train, motivate and manage
new employees, to integrate new employees into our operations and to continue to
improve our operational, financial and management controls and procedures. If we
are unable to implement adequate controls or integrate new employees into our
business in an efficient and timely manner, our operations could be adversely
affected and our growth could be impaired.
Our operating results have
historically been volatile, and may continue to be volatile, particularly from quarter
to quarter.
Our
quarter-to-quarter revenue, gross profit and operating profitability have
fluctuated significantly. During quarterly periods in which we realize lower
levels of revenue our profitability is negatively impacted. Our quarterly
operating results have historically depended on, and may fluctuate in the future
as a result of, many factors including:
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volume
and timing of orders received during the
quarter; |
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amount
and timing of supplier incentives received in any particular quarter,
which can vary substantially; |
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gross
margin fluctuations associated with the mix of products
sold; |
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general
economic conditions; |
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patterns
of capital spending by enterprises for communications
products; |
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the
timing of new product announcements and
releases; |
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the
cost and effect of acquisitions; |
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the
amount and timing of sales incentives we may receive from our suppliers,
particularly Cisco; and |
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the
availability and cost of products and components from our
suppliers. |
As a
result of these and other factors, we have historically experienced, and may
continue to experience, fluctuations in sales and operating results. In
addition, it is possible that in the future our operating results may fall below
the expectations of analysts and investors, and as a result, the price of our
securities may fall.
We have many competitors and expect
new competitors to enter our market, which could increase price competition and may
affect the amount of business available to us and the prices that we can charge for our
products and services.
The
markets for our all of products and services, and especially our Internet
Protocol telephony products and services, are extremely competitive and subject
to rapid change. Substantial growth in demand for Internet Protocol telephony
solutions has been predicted, and we expect competition to increase as existing
competitors enhance and expand their products and services and as new
participants enter the Internet Protocol telephony market. Internet Protocol
telephony involves the application of traditional computer-based technology to
voice communication, and the hardware component of the solution is readily
available. Accordingly, there are relatively few barriers to entry to companies
with computer and network experience. A rapid increase in competition could
negatively affect the amount of business that we get and the prices that we can
charge.
Additionally,
many of our competitors and potential competitors have substantially greater
financial resources, customer support, technical and marketing resources, larger
customer bases, longer operating histories, greater name recognition and more
established relationships than we do. We cannot be sure that we will have the
resources or expertise to compete successfully. Compared to us, our competitors
may be able to:
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develop
and expand their products and services more
quickly; |
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adapt
faster to new or emerging technologies and changing customer
needs; |
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take
advantage of acquisitions and other opportunities more
readily; |
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negotiate
more favorable agreements with
vendors; |
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devote
greater resources to marketing and selling their
products; and |
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address
customer service issues more
effectively. |
Some of
our competitors may also be able to increase their market share by providing
customers with additional benefits or by reducing their prices. We cannot be
sure that we will be able to match price reductions by our competitors. In
addition, our competitors may form strategic relationships with each other to
better compete with us. These relationships may take the form of strategic
investments, joint-marketing agreements, licenses or other contractual
arrangements that could increase our competitors’ ability to serve
customers.
Business acquisitions, dispositions
or joint ventures entail numerous risks and may disrupt our business, dilute
stockholder value or distract management attention.
As part
of our business strategy, we plan to consider acquisitions of, or significant
investments in, businesses that offer products, services and technologies
complementary to ours. Any acquisition could materially adversely affect our
operating results and/or the price of our securities. Acquisitions involve
numerous risks, some of which we have experienced and may continue to
experience, including:
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unanticipated
costs and liabilities; |
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difficulty
of integrating the operations, products and personnel of the acquired
business; |
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difficulty
retaining key personnel of the acquired
business; |
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difficulty
retaining customers of the acquired
businesses; |
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difficulties
in managing the financial and strategic position of acquired or developed
products, services and
technologies; |
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difficulties
in maintaining customer relationships, in particular where a substantial
portion of the target’s sales were derived from products that compete with
products that we currently offer; |
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the
diversion of management’s attention from the core
business; |
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inability
to maintain uniform standards, controls, policies and
procedures; and |
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damage
to relationships with acquired employees and customers as a result of
integration of the acquired
business. |
Finally,
to the extent that shares of our common stock or rights to purchase common stock
are issued in connection with any future acquisitions, dilution to our existing
stockholders will result and our earnings per share may suffer. Any future
acquisitions may not generate the anticipated level of revenue and earnings or
provide any benefit to our business, and we may not achieve a satisfactory
return on our investment in any acquired businesses.
Our international operations, which
we plan to expand, will subject us to additional risks that may adversely affect our
operating results due to increased costs.
Revenue
generated by products delivered and services provided outside the United States,
as a percentage of consolidated revenue, was approximately 4.9%, 3.5% and 2.7%
for 2006, 2005 and 2004, respectively. Substantially all of our international
revenue represents products delivered or services provided in foreign countries
for companies based in the United States or for United States Armed Forces under
contracts entered into, administered and paid in the United States. We intend to
continue to pursue international opportunities. Pursuit of international
opportunities may require us to make significant investments for an extended
period before returns on such investments, if any, are realized. International
operations are subject to a number of risks and potential costs,
including:
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unexpected
changes in regulatory requirements and telecommunication
standards; |
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tariffs
and other trade barriers; |
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risk
of loss in currency exchange
transactions; |
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exchange
controls or other currency
restrictions; |
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difficulty
in collecting receivables; |
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difficulty
in staffing and managing foreign
operations; |
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the
need to customize marketing and
products; |
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inadequate
protection of intellectual property in countries outside the United
States; |
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adverse
tax consequences; and |
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political
and economic instability. |
Any of
these factors could prevent us from increasing our revenue and otherwise
adversely affect our operating results. We may not be able to overcome some of
these barriers and may incur significant costs in addressing
others.
If we lose key personnel we may not
be able to achieve our objectives.
We are
dependent on the continued efforts of our senior management team, including our
Chairman and Chief Executive Officer, James Long, and our President and Chief
Operating Officer, Mark Hilz. If for any reason, these or other senior
executives or other key members of management do not continue to be active in
management, our business, financial condition or results of operations could be
adversely affected. We cannot assure you that we will be able to continue to
retain our senior executives or other personnel necessary for the development of
our business.
We may not be able to hire and retain
highly skilled technical employees, which could affect our ability to compete
effectively and could adversely affect our operating results.
We depend
on highly skilled technical personnel to research and develop and to market and
service our products. To succeed, we must hire and retain employees who are
highly skilled in rapidly changing communications technologies. In particular,
as we implement our strategy of focusing on Internet Protocol telephony, we will
need to:
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hire
more employees with experience developing and providing advanced
communications products and
services; |
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retrain
our current personnel to sell Internet Protocol telephony products and
services; and |
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retain
personnel to service our products. |
Individuals
who can perform the services we need to provide our products and services are
scarce. Because the competition for qualified employees in our industry is
intense, hiring and retaining qualified employees is both time-consuming and
expensive. We may not be able to hire enough qualified personnel to meet our
needs as our business grows or to retain the employees we currently have. Our
inability to hire and retain the individuals we need could hinder our ability to
sell our existing products, systems, software or services or to develop and sell
new ones. If we are not able to attract and retain qualified employees, we will
not be able to successfully implement our business plan and our business will be
harmed.
If we are unable to protect our
intellectual property rights, our business may be harmed.
Although
we attempt to protect our intellectual property through patents, trademarks,
trade secrets, copyrights, confidentiality and non-disclosure agreements and
other measures, intellectual property is difficult to protect and these measures
may not provide adequate protection. Patent filings by third parties, whether
made before or after the date of our patent filings, could render our
intellectual property less valuable. Competitors may misappropriate our
intellectual property, disputes as to ownership of intellectual property may
arise and our intellectual property may otherwise become known or independently
developed by competitors. The failure to protect our intellectual property could
seriously harm our business because we believe that developing new products and
technology that are unique to us is important to our success. If we do not
obtain sufficient international protection for our intellectual property, our
competitiveness in international markets could be significantly impaired, which
would limit our growth and future revenue.
We may be found to infringe on
third-party intellectual property rights.
Third
parties may in the future assert claims or initiate litigation related to their
patent, copyright, trademark and other intellectual property rights in
technology that is important to us. The asserted claims and/or litigation could
include claims against us or our suppliers alleging infringement of intellectual
property rights with respect to our products or components of those products.
Regardless of the merit of the claims, they could be time consuming, result in
costly litigation and diversion of technical and management personnel, or
require us to develop a non-infringing technology or enter into license
agreements. There can be no assurance that licenses will be available on
acceptable terms, if at all. Furthermore, because of the potential for high
court awards, which are not necessarily predictable, it is not unusual to find
even arguably unmeritorious claims resulting in large settlements. If any
infringement or other intellectual property claim made against us by any third
party is successful, or if we fail to develop non-infringing technology or
license the proprietary rights on commercially reasonable terms and conditions,
our business, operating results and financial condition could be materially
adversely affected.
Costs of compliance with the
Sarbanes-Oxley Act of 2002 and the related SEC regulations may harm our results of
operations.
The
Sarbanes-Oxley Act of 2002 requires heightened financial disclosure and
corporate governance for all publicly traded companies. Although costs of
compliance with the Sarbanes-Oxley Act are uncertain due to several factors, we
expect that our general and administrative expenses will increase. Failure to
comply with the Sarbanes-Oxley Act, Securities and Exchange Commission
regulations or NASDAQ listing requirements may result in penalties, fines or
delisting of our securities from the NASDAQ, which could limit our ability to
access the capital markets, having a negative impact on our financial condition
and results of operations.
Our future equity financings may be
dilutive or have adverse effects on our existing shareholders and market prices
of our securities.
We may
issue securities under the registration statement of which this prospectus forms
a part that could dilute your ownership in our company and may include terms
that give investors rights that are superior to yours. Moreover, any
issuances by us of securities may be at or below the prevailing market price of
our common stock and public warrants, which could cause the market price of our
securities to drop. Finally, such securities could be publicly
tradeable or resellable. Given the low volume of our common stock and
public warrants, public resales by initial investors of large amounts of our
common stock could cause the market price of our securities to
drop.
This
prospectus, including the documents that we incorporate by reference, contains
forward-looking statements regarding our future performance. All forward-looking
information is inherently uncertain and actual results may differ materially
from assumptions, estimates or expectations reflected or contained in the
forward-looking statements as a result of various factors, including those set
forth under “Risk Factors” and elsewhere in this prospectus. Forward-looking
statements convey our current expectations or forecasts of future events. All
statements contained in this prospectus other than statements of historical fact
are forward-looking statements. Forward-looking statements include statements
regarding our future financial position, business strategy, budgets, projected
costs, plans and objectives of management for future operations. The words
“may,” “continue,” “estimate,” “intend,” “plan,” “will,” “believe,” “project,”
“expect,” “anticipate” and similar expressions may identify forward-looking
statements, but the absence of these words does not necessarily mean that a
statement is not forward-looking. With respect to the forward-looking
statements, we claim the protection of the safe harbor for forward-looking
statements contained in the Private Securities Litigation Reform Act of
1995.
These
forward-looking statements speak only as of the date of this prospectus. Unless
required by law, we undertake no obligation to publicly update or revise any
forward-looking statements to reflect new information or future events or
otherwise.
Unless we
indicate otherwise in the applicable prospectus supplement, our management will
have broad discretion over the use of the net proceeds from the sale of the
securities offered in this prospectus. We currently intend to use
such proceeds for working capital and other general corporate
purposes. We may also use such proceeds to fund the acquisition of
companies, businesses, technologies, products or assets. However, we
currently have no commitments or agreements for any specific
acquisitions. Pending use of the net proceeds, we intend to invest
the net proceeds in short-term, investment-grade, interest-bearing
securities.
Our
authorized capital stock consists of 20,000,000 shares, consisting of 15,000,000
shares of common stock, par value $0.01 per share, and 5,000,000 shares of
preferred stock, par value $0.01 per share. We have 7,394,414 shares of common
stock outstanding at September 30, 2007 and no shares of preferred stock
outstanding.
Common Stock
Holders
of common stock have the right to cast one vote for each share held of record on
all matters submitted to a vote of holders of common stock, including the
election of directors. There is no right to cumulate votes for the
election of directors. Stockholders holding at least half of the
voting power of the capital stock issued and outstanding and entitled to vote,
represented in person or by proxy, are necessary to constitute a quorum at any
meeting of our stockholders, and the vote by the holders of a majority of
outstanding shares present or represented at a meeting is generally required to
take action; the vote by holders of two-thirds of outstanding shares is required
to take certain actions, such as the removal of directors and the amendment of
the certificate of incorporation.
Holders
of common stock are entitled to receive dividends pro rata based on the number
of shares held, when, as and if declared by the Board of Directors, from funds
legally available therefor, subject to the rights of holders of any outstanding
preferred stock. In the event of our liquidation, dissolution or winding up, all
our assets remaining after the payment of all debts and other liabilities,
subject to the rights of the holders of any outstanding preferred stock, shall
be distributed, pro rata, among the holders of the common stock. Holders of
common stock are not entitled to preemptive or subscription or conversion
rights, and there are no redemption or sinking fund provisions applicable to the
common stock.
Preferred Stock
Our
certificate of incorporation provides for the issuance of up to 5,000,000 shares
of preferred stock. Our board of directors will have the authority, without
further action by the stockholders, to issue up to 5,000,000 shares of preferred
stock in one or more series and to designate the rights, preferences, privileges
and restrictions of each such series. The issuance of preferred stock could have
the effect of restricting dividends on the common stock, diluting the voting
power of the common stock, impairing the liquidation rights of the common stock
or delaying or preventing a change in control without further action by the
stockholders. At present, we have no plans to issue any shares of preferred
stock.
Warrants
The
applicable prospectus supplement will describe the following terms of warrants
offered:
|
· |
the
title of the warrants; |
|
· |
the
number of common shares for which the warrants are
exercisable; |
|
· |
the
price or prices at which the warrants will be
issued; |
|
· |
the
provisions, if any, for changes to or adjustments in the exercise
price; |
|
· |
the
provisions, if any, for call rights or put rights relating to the warrants
or the underlying common shares; |
|
· |
the
date on which the right to exercise the warrants shall commence and the
date on which the right will
expire; |
|
· |
if
applicable, the number of warrants issued with each share of our common
stock; |
|
· |
a
discussion of any material federal income tax consequences of holding or
exercising the warrants; and |
|
· |
any
other terms of the warrants, including terms, procedures and limitations
relating to the exchange and exercise of the
warrants. |
Holders
of warrants will not be entitled, by virtue of being such holders, to vote,
consent, receive dividends, receive notice as shareholders with respect to any
meeting of shareholders for the election of our directors or any other matter,
or to exercise any rights whatsoever as our shareholders.
The
exercise price payable and the number of shares of our common stock purchasable
upon the exercise of each warrant will be subject to adjustment in certain
events, including the issuance of a stock dividend to holders of our common
stock or a stock split, reverse stock split, combination, subdivision or
reclassification of our common stock. In lieu of adjusting the number of shares
of our common stock purchasable upon exercise of each warrant, we may elect to
adjust the number of warrants. No fractional shares will be issued upon exercise
of the warrants, but we will pay the cash value of any fractional shares
otherwise issuable. Notwithstanding the foregoing, in case of any consolidation,
merger, or sale or conveyance of our property as an entirety or substantially as
an entirety, the holder of each outstanding warrant shall have the right to the
kind and amount of shares of stock and other securities and property, including
cash, receivable by a holder of the number of shares of our common stock into
which the warrant was exercisable immediately prior to such
transaction.
Exercise of
Warrants
Each
warrant will entitle the holder to purchase for cash such shares of our common
stock at such exercise price as shall in each case be set forth in, or be
determinable as set forth in, the prospectus supplement relating to the warrants
offered thereby. Warrants may be exercised at any time up to the close of
business on the expiration date set forth in the prospectus supplement relating
to the warrants offered thereby. After the close of business on the expiration
date, unexercised warrants will become void.
The
warrants may be exercised as set forth in the prospectus supplement relating to
the warrants offered. Upon receipt of payment and the warrant certificate
properly completed and duly executed at the corporate trust office of the
warrant agent or any other office indicated in the prospectus supplement, we
will, as soon as practicable, direct the issuance of the shares of our common
stock purchasable upon such exercise. If less than all of the warrants
represented by such warrant certificate are exercised, a new warrant certificate
will be issued for the remaining warrants.
Anti-Takeover
Provisions
Our
certificate of incorporation and bylaws contain a number of provisions that
could make our acquisition by means of a tender or exchange offer, a proxy
contest or otherwise more difficult. These provisions are summarized
below.
Removal of
Directors. Our certificate of incorporation provides that our
directors may only be removed for cause and only by the affirmative vote of the
holders of two-thirds or more of the voting power of all of the then outstanding
shares of capital stock entitled to vote generally in the election of directors,
voting together as a single class. For purposes of director removal, cause means
conviction of a felony involving moral turpitude, proof beyond a reasonable
doubt that a director has committed grossly negligent or willful misconduct
resulting in a material detriment or commission of a material breach of
fiduciary duty to the company resulting in a material detriment.
Advance Notice Provisions
for Certain Stockholder Actions. Our bylaws establish an
advance notice procedure with regard to the nomination, other than by or at the
direction of the Board or a committee thereof, of candidates for election as
directors and with regard to certain matters to be brought before an annual
meeting of stockholders. The advance notice procedures generally require that a
stockholder give prior written notice, in proper form, to our Secretary, the
requirements as to the form and timing of those notices are specified in the
bylaws. If it is determined that those advance notice procedures were not
complied with, a nomination could be precluded or certain business may not be
conducted at the meeting.
Although
our bylaws do not give the Board the power to approve or disapprove stockholder
nominations for the election of directors or of any other business stockholders
desire to conduct at an annual or any other meeting, the bylaws may have the
effect of precluding a nomination for the election of directors or precluding
the conduct of business at a particular annual meeting if the proper procedures
are not followed, or discouraging or deterring a third party from conducting a
solicitation of proxies to elect its own slate of directors or otherwise
attempting to obtain control, even if the conduct of that solicitation or
attempt might be beneficial to our stockholders.
No Stockholder Action by
Written Consent; Special Meetings. Our certificate of
incorporation provides that stockholder action can be taken only at an annual or
special meeting of stockholders and prohibits stockholder action by written
consent in lieu of a meeting. Our certificate of incorporation and bylaws
provide that special meetings of stockholders can be called only by the Chairman
of the Board, the Chief Executive Officer, the President, the Board by the
written order of a majority of directors or upon a written request of
Stockholders owning two-thirds or more of our issued and outstanding capital
stock and entitled to vote. The written request of stockholders must state the
purpose of the meeting and be delivered to the Chairman of the Board, Chief
Executive Officer, the President or the Secretary. Accordingly, holders of a
significant percentage of our outstanding capital stock may not be able to
compel a special meeting of stockholders.
Amendment of Certain
Provisions of the Certificate of Incorporation and
Bylaws. Under the Delaware General Corporation Law, the
stockholders have the right to adopt, amend or repeal our bylaws and with the
approval of the board, the certificate of incorporation. Our certificate of
incorporation provides that the affirmative vote of at least two-thirds of the
voting power of the then outstanding shares of voting stock, voting together as
a single class and in addition to any other vote required by our certificate of
incorporation or bylaws, is required to amend provisions of the certificate of
incorporation or bylaws relating to:
|
· |
the
prohibition of stockholder action without a
meeting; |
|
· |
the
restriction of stockholders calling a special
meeting; |
|
· |
the
number, election and term of directors;
or |
|
· |
the
removal of directors. |
The vote
of a majority of the voting power of the then outstanding shares of voting stock
is required to amend all other provisions of our certificate of incorporation.
Our certificate of incorporation further provides that our bylaws may otherwise
be amended by the board or by the affirmative vote of at least a majority of the
voting power of the then outstanding shares of our voting stock, voting together
as a single class. These supermajority voting requirements will have the effect
of making it more difficult for stockholders to amend the bylaws or the
certificate of incorporation.
We may
sell the securities covered by this prospectus in any of three ways (or in any
combination):
|
· |
to
or through underwriters or dealers; |
|
· |
directly
to a limited number of purchasers or a single
purchaser; |
We will
describe in a prospectus supplement the terms of the offering of the securities
covered by this prospectus, including:
|
· |
the
name or names of any underwriters, dealers or agents and the amounts of
securities underwritten or purchased by each of
them; |
|
· |
any
over-allotment options pursuant to which underwriters may purchase
additional securities from us; |
|
· |
any
underwriting discounts or commissions or agency fees and other items
constituting underwriters’ or agents’
compensation; |
|
· |
the
initial public offering price of the securities and the proceeds to us and
any discounts, commissions or concessions allowed or reallowed or paid to
dealers; and |
|
· |
any
securities exchanges or markets on which the securities may be
listed. |
Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Underwriters
may offer and sell the offered securities from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. If underwriters are
used in the sale of any securities, the securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions described above. The securities may be either offered to the
public through underwriting syndicates represented by managing underwriters, or
directly by underwriters. Generally, the underwriters’ obligations to purchase
the securities will be subject to certain conditions precedent. The underwriters
will be obligated to purchase all of the securities if they purchase any of the
securities. We may use underwriters with whom we have a material relationship.
We will describe in the prospectus supplement, naming the underwriter, the
nature of any such relationship.
We may
sell the securities through agents from time to time. The prospectus supplement
will name any agent involved in the offer or sale of the securities and any
commissions we pay to them. Generally, any agent will be acting on a best
efforts basis for the period of its appointment.
We may
authorize underwriters, dealers or agents to solicit offers by certain
purchasers to purchase the securities from us at the public offering price set
forth in the prospectus supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. The
contracts will be subject only to those conditions set forth in the prospectus
supplement, and the prospectus supplement will set forth any commissions we pay
for solicitation of these contracts.
Agents
and underwriters may be entitled to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which the agents or underwriters may be required to
make in respect thereof. Agents and underwriters may be customers of, engage in
transactions with, or perform services for us in the ordinary course of
business.
All
securities we offer, other than common stock, will be new issues of securities
with no established trading market. Any underwriters may make a market in these
securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot guarantee the liquidity of the
trading markets for any securities.
Any
underwriter may engage in overallotment, stabilizing transactions, short
covering transactions and penalty bids in accordance with Regulation M under the
Exchange Act. Overallotment involves sales in excess of the offering size, which
create a short position. Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not exceed a specified
maximum. Short covering transactions involve purchases of the securities in the
open market after the distribution is completed to cover short positions.
Penalty bids permit the underwriters to reclaim a selling concession from a
dealer when the securities originally sold by the dealer are purchased in a
covering transaction to cover short positions. Those activities may cause the
price of the securities to be higher than it would otherwise be. If commenced,
the underwriters may discontinue any of the activities at any time.
The
following documents which we have filed with the SEC pursuant to the Securities
Exchange Act of 1934 are incorporated herein by reference:
|
· |
Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2006,
including any documents or portions thereof incorporated by reference
therein; |
|
· |
Our Quarterly Reports on Form
10-Q for the fiscal quarters ended March 31, 2007, June 30, 2007 and
September 30, 2007, including any documents or portions thereof
incorporated by reference
therein; |
|
· |
Our Current Reports on Form 8-K
and 8-K/A as applicable, filed with the SEC on March 6, 2007, April 2,
2007, May 3, 2007, May 15, 2007, May 16, 2007, August 6, 2007, August 20,
2007, September 4, 2007, September 5, 2007, October 12, 2007, November 5,
2007, November 8, 2007, November 13, 2007, November 13, 2007 (8-K/A),
December 5, 2007, December 21, 2007, January 2, 2008, January 10, 2008 and
January 28, 2008 |
|
· |
The description of our common
stock contained in our Registration Statement on Form 8-A (000-21479),
filed with the SEC under Section 12 of the Securities Exchange Act of
1934 on April 17, 2006; and |
|
· |
All
other documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 subsequent to the date of this
prospectus and prior to the termination of this
offering. |
Any
statement contained in any document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as modified or superseded, to
constitute a part of this prospectus.
We will
provide without charge to each person, including any beneficial owner, to whom
this prospectus is delivered, upon written or oral request of any such person, a
copy of any or all of the documents incorporated herein by reference, other than
exhibits to such documents which are not specifically incorporated by reference
into such documents. Requests for documents should be directed to us at 6401
Southwest Freeway, Houston, Texas, 77074, Attention: Chief Financial Officer,
telephone (713) 795-2000.
We have
filed with the SEC a Registration Statement on Form S-3 under the Securities Act
of 1933 covering the shares offered by this prospectus. This prospectus does not
contain all of the information set forth in the registration statement and the
exhibits thereto. Statements contained in this prospectus as to the contents of
any contract or other document referred to are not necessarily complete and in
each instance such statement is qualified by reference to each such contract or
document. You may read and copy the registration statement of which this
prospectus is a part at the SEC’s Public Reference Room, which is located at 100
F Street, N.E., Washington, D.C. 20549. You can request copies of the
registration statement by writing to the SEC and paying a fee for the copying
cost. Please call the SEC at 1-800-SEC-0330 for more information about the
operation of the SEC’s Public Reference Room. In addition, the SEC maintains an
Internet web site, which is located at www.sec.gov, which contains reports,
proxy and information statements and other information regarding issuers that
file electronically with the SEC. You may access the registration statement of
which this prospectus is a part at the SEC’s Internet web site. We are subject
to the information reporting requirements of the Securities Exchange Act of
1934, and we will file reports, proxy statements and other information with the
SEC.
We
maintain an Internet web site at www.inxi.com. We have not incorporated by
reference into this prospectus the information on our web site, and you should
not consider it to be a part of this prospectus.
The
validity of the securities offered hereby will be passed upon for us by Epstein
Becker & Green, P.C., New York, New York.
The
financial statements and the related financial statement schedule incorporated
in this prospectus by reference from the Company’s Annual Report on Form 10-K
for the year ended December 31, 2006 have been audited by Grant Thornton LLP, an
independent registered public accounting firm, as stated in their reports, which
are incorporated herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN
PROSPECTUS
Item 14. Other Expenses of
Issuance and Distribution
The
following table sets forth various costs and expenses payable by the registrant
in connection with the sale of the securities being registered. All
such costs and expenses shall be borne by the undersigned
registrant. Except for the SEC registration fee, all the amounts
shown are estimates.
|
SEC
registration fee |
$3,070 |
|
Legal
fees and expenses |
$25,000 |
|
Accounting
fees and expenses |
$10,000 |
|
Printing
and related expenses |
$5,000 |
|
Miscellaneous |
$6,930 |
|
Total |
$50,000 |
Item 15. Indemnification
of Officers and Directors
The
registrant’s certificate of incorporation provides that a director will not be
personally liable to it or to its stockholders for monetary damages for breach
of the fiduciary duty of care as a director. This provision does not eliminate
or limit the liability of a director:
|
· |
for
breach of his or her duty of loyalty to the registrant or to its
stockholders; |
|
· |
for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of
law; |
|
· |
under
Section 174 of the Delaware General Corporation Law (relating to unlawful
payments or dividends or unlawful stock repurchases or redemptions);
or |
|
· |
for
any improper benefit. |
The
registrant’s certificate of incorporation also provides that it will indemnify
and hold harmless each of its directors and officers to the fullest extent
authorized by the Delaware General Corporation Law, against all expense,
liability and loss (including court costs and attorney's fees, judgments, fines,
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection
therewith.
The
registrant has obtained liability insurance for its officers and
directors.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons pursuant to the
provisions above and the Delaware General Corporation Law, the registrant has
been advised that in the opinion of the SEC such indemnification is against
public policy and is, therefore, unenforceable.
Item
16. Exhibits
|
Exhibit
No. |
|
Description |
|
Filed Herewith or Incorporated
by Reference From: |
| |
|
|
|
|
|
3.1 |
|
Amended
and Restated Bylaws of the Company |
|
Exhibit 3.1
to Amendment 5 to Form S-1, Registration No. 333-09789, filed
June 26, 1997 |
| |
|
|
|
|
|
3.2 |
|
Certificate
of Incorporation of the Company |
|
Exhibit 3.2
to Amendment 1 to Form S-1, Registration No. 333-09789, filed
September 19, 1996 |
| |
|
|
|
|
|
3.3 |
|
Certificate
of Amendment to Certificate of Incorporation of Allstar Systems, Inc.,
dated June 24, 1997 |
|
Exhibit 3.4
to Amendment 5 to Form S-1, Registration No. 333-09789, filed
June 26, 1997 |
| |
|
|
|
|
|
3.4 |
|
Certificate
of Amendment to Certificate of Incorporation of Allstar Systems, Inc.,
dated March 5, 1999 |
|
Exhibit 3.3
to Form 8-A, Registration No. 001-31949, filed December 29,
2003 |
| |
|
|
|
|
|
3.5 |
|
Certificate
of Amendment to Certificate of Incorporation of Allstar Systems, Inc.
dated July 10, 2000 |
|
Exhibit 3.4
to Form 8-A, Registration No. 001-31949, filed December 29,
2003 |
| |
|
|
|
|
|
3.6 |
|
Certificate
of Ownership and Merger |
|
Exhibit 3.1
to Form 8-K, Registration No. 001-31949, dated January 6,
2006 |
| |
|
|
|
|
|
4.1 |
|
Specimen
Common Stock Certificate |
|
Exhibit 4.1
to Amendment 2 to Form S-1, Registration No. 333-09789, filed
October 3, 1996 |
| |
|
|
|
|
|
5.1 |
|
Opinion
of Epstein Becker & Green, P.C. regarding validity of securities
offered |
|
Previously
filed. |
| |
|
|
|
|
|
23.1 |
|
Consent
of Epstein Becker & Green, P.C. (included in Exhibit
5.1) |
|
|
| |
|
|
|
|
|
23.2 |
|
Consent
of Grant Thornton LLP |
|
Filed
herewith |
Item
17. 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:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement.
(iii) 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.
Provided,
however, that paragraphs (i), (ii) and (iii) above do not apply if the
registration statement is on Form S-3 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
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.
(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 of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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 of 1933 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 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 Act and will be governed by the final adjudication of
such issue.
The
undersigned registrant hereby undertake that: (1) for purposes of
determining any liability under the Securities Act, the information omitted from
the form of prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the registrants
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of the time it was
declared effective; and (2) for the purpose of determining any liability
under the Securities Act, each post-effective amendment that contains a form of
prospectus 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 4th day of February, 2008.
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INX INC. |
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By: |
/s/
James H. Long |
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Name: |
James
H. Long |
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Title: |
Chief
Executive Officer |
POWER OF ATTORNEY
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.
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Signature |
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Capacity |
Date |
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/s/
James H. Long * |
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Chief
Executive Officer and Chairman of the Board of Directors |
February 4,
2008 |
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James
H. Long |
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/s/
Brian Fontana * |
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Vice
President and Chief Financial Officer |
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Brian
Fontana |
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/s/
Larry Lawhorn * |
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Controller
and Chief Accounting Officer |
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Larry
Lawhorn |
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/s/
Donald R. Chadwick * |
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Director |
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Donald
R. Chadwick |
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/s/
Cary Grossman * |
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Director |
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Cary
Grossman |
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/s/
John B. Cartwright * |
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Director |
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John
B. Cartwright |
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By: |
/s/ James H.
Long
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James H. Long,
Attorney-in-fact
*
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EXHIBIT INDEX
|
Exhibit
No. |
|
Description |
|
Filed Herewith or Incorporated
by Reference From: |
|
3.1 |
|
Amended
and Restated Bylaws of the Company |
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Exhibit 3.1
to Amendment 5 to Form S-1, Registration No. 333-09789, filed
June 26, 1997 |
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3.2 |
|
Certificate
of Incorporation of the Company |
|
Exhibit 3.2
to Amendment 1 to Form S-1, Registration No. 333-09789, filed
September 19, 1996 |
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|
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3.3 |
|
Certificate
of Amendment to Certificate of Incorporation of Allstar Systems, Inc.,
dated June 24, 1997 |
|
Exhibit 3.4
to Amendment 5 to Form S-1, Registration No. 333-09789, filed
June 26, 1997 |
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3.4 |
|
Certificate
of Amendment to Certificate of Incorporation of Allstar Systems, Inc.,
dated March 5, 1999 |
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Exhibit 3.3
to Form 8-A, Registration No. 001-31949, filed December 29,
2003 |
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3.5 |
|
Certificate
of Amendment to Certificate of Incorporation of Allstar Systems, Inc.
dated July 10, 2000 |
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Exhibit 3.4
to Form 8-A, Registration No. 001-31949, filed December 29,
2003 |
| |
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|
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3.6 |
|
Certificate
of Ownership and Merger |
|
Exhibit 3.1
to Form 8-K, Registration No. 001-31949, dated January 6,
2006 |
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|
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4.1 |
|
Specimen
Common Stock Certificate |
|
Exhibit 4.1
to Amendment 2 to Form S-1, Registration No. 333-09789, filed
October 3, 1996 |
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5.1 |
|
Opinion
of Epstein Becker & Green, P.C. regarding validity of securities
offered |
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Previously
filed. |
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23.1 |
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Consent
of Epstein Becker & Green, P.C. (included in Exhibit
5.1) |
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Consent
of Grant Thornton LLP |
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Filed
herewith |
18