Exhibit 1.1
ADEZA BIOMEDICAL CORPORATION
[_________] Shares
Common Stock
($0.001 par value per Share)
UNDERWRITING AGREEMENT
[trade date]
UNDERWRITING AGREEMENT
[trade date]
UBS Securities LLC
SG Cowen & Co., LLC
Thomas Weisel Partners LLC
William Blair & Company, L.L.C.
as Managing Underwriters
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
Adeza Biomedical Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule A annexed
hereto (the "Underwriters"), for whom you are acting as representatives, an
aggregate of [________] shares (the "Firm Shares") of Common Stock, $0.001 par
value per share (the "Common Stock"), of the Company. In addition, solely for
the purpose of covering over-allotments, the Company proposes to grant to the
Underwriters the option to purchase from the Company up to an additional
[_______] shares of Common Stock (the "Additional Shares"). The Firm Shares and
the Additional Shares are hereinafter collectively sometimes referred to as the
"Shares." The Shares are described in the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333-118012),
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each such preliminary prospectus being herein called a
"Preliminary Prospectus") relating to the Shares. Except where the context
otherwise requires, the registration statement, as amended when it became or
becomes effective, including all documents filed as a part thereof, and
including any information contained in a prospectus subsequently filed with the
Commission pursuant to Rule 424(b) under the Act and deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act and also including any registration statement filed pursuant to Rule
462(b) under the Act, is herein called the "Registration Statement," and the
prospectus in the form filed by the Company with the Commission pursuant to Rule
424(b) under the Act on or before the second business day after the date hereof
(or such earlier time as may be required under the Act), or, if no such filing
is required, the form of final prospectus included in the Registration Statement
at the time it became effective, is herein called the "Prospectus." As used
herein, "business day" shall mean a day on which the New York Stock Exchange is
open for trading.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties
and subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule A
attached hereto, subject to adjustment in accordance with Section 8 hereof, in
each case at a purchase price of $[____] per Share. The Company is advised by
you that the Underwriters intend (i) to make a public offering of their
respective portions of the Firm Shares as soon after the effective date of the
Registration Statement as in your judgment is advisable and (ii) initially to
offer the Firm Shares upon the terms set forth in the Prospectus. You may from
time to time increase or decrease the public offering price after the initial
public offering to such extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Company, ratably
in accordance with the number of Firm Shares to be purchased by each of them,
all or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the Company for
the Firm Shares. This option may be exercised by UBS Securities LLC ("UBS") on
behalf of the several Underwriters at any time and from time to time on or
before the thirtieth day following the date of the Prospectus, by written notice
to the Company. Such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised and the date and time when the
Additional Shares are to be delivered (such date and time being herein referred
to as the "additional time of purchase"); provided, however, that the additional
time of purchase shall not be earlier than the time of purchase (as defined
below) nor earlier than the second business day after the date on which the
option shall have been exercised nor later than the tenth business day after the
date on which the option shall have been exercised. The number of Additional
Shares to be sold to each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional shares),
subject to adjustment in accordance with Section 8 hereof.
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company by Federal Funds wire transfer against
delivery of the certificates for the Firm Shares to you through the facilities
of The Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on [closing date] (unless another time shall be agreed to by you and
the Company or unless postponed in accordance with the provisions of Section 8
hereof). The time at which such payment and delivery are to be made is
hereinafter sometimes called the "time of purchase." Electronic transfer of the
Firm Shares shall be made to you at the time of purchase in such names and in
such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Electronic transfer of the Additional Shares
shall be made to you at the additional time of purchase in such names and in
such denominations as you shall specify.
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Deliveries of the documents described in Section 6 hereof with respect
to the purchase of the Shares shall be made at the offices of Dewey Ballantine
LLP at 1301 Avenue of the Americas, New York, New York 10019, at 9:00 A.M., New
York City time, on the date of the closing of the purchase of the Firm Shares or
the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) the Registration Statement has been declared effective
under the Act; no stop order of the Commission preventing or suspending
the use of any Preliminary Prospectus or the effectiveness of the
Registration Statement has been issued and no proceedings for such
purpose have been instituted or, to the Company's knowledge after due
inquiry, are contemplated by the Commission; each Preliminary
Prospectus, at the time of filing thereof, complied with the
requirements of the Act, and the last Preliminary Prospectus
distributed in connection with the offering of the Shares did not, as
of its date, and 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, in light of the circumstances
under which they were made, not misleading; the Registration Statement
complied when it became effective, complies and, at the time of
purchase and any additional time of purchase and any time at which any
sales with respect to which the Prospectus is delivered, will comply
with the requirements of the Act, and the Prospectus will comply, as of
its date and at the time of purchase and any additional times of
purchase and any time at which any sales with respect to which the
Prospectus is delivered, with the requirements of the Act; any
statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement have been and will
be so described or filed; the conditions to the use of Form S-1 have
been satisfied; the Registration Statement did not when it became
effective, does not and, at the time of purchase, any additional time
of purchase and any time at which any sales with respect to which the
Prospectus is delivered, 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 not misleading, and
the Prospectus will not, as of its date and at the time of purchase and
any additional time of purchase and any time at which any sales with
respect to which the Prospectus is delivered, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no warranty or representation
with respect to any statement contained in the last Preliminary
Prospectus, the Registration Statement or the Prospectus in reliance
upon and in conformity with information concerning an Underwriter and
furnished in writing by or on behalf of such Underwriter through you to
the Company expressly for use in the last Preliminary Prospectus, the
Registration Statement or the Prospectus; and the Company has not
distributed and will not distribute any "prospectus" (within the
meaning of the Act) or offering material in connection with the
offering or sale of the Shares other than the Registration Statement,
the then most recent Preliminary Prospectus and the Prospectus;
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(b) as of the date of this Agreement, the Company has an
authorized and outstanding capitalization as set forth in the section
of the Registration Statement and the Prospectus entitled
"Capitalization" and "Description of capital stock," and, as of the
time of purchase and the additional time of purchase, as the case may
be, the Company shall have an authorized and outstanding capitalization
as set forth in the section of the Registration Statement and the
Prospectus entitled "Capitalization" and "Description of capital stock"
(subject, in each case, to the issuance of shares of Common Stock upon
exercise of stock options and warrants disclosed as outstanding in the
Registration Statement and the Prospectus and the grant of options
under existing stock option plans described in the Registration
Statement and the Prospectus); all of the issued and outstanding shares
of capital stock, including the Common Stock, of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all federal and
state securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar
right; prior to the time of purchase, all outstanding shares of each
series of the Company's Preferred Stock, $0.001 par value per share,
shall convert into the number of shares of Common Stock, and shall
convert in the manner, set forth in the Registration Statement and the
Prospectus; the Certificate of Incorporation of the Company and the
Bylaws of the Company, each in the form filed as an exhibit to the
Registration Statement, have been heretofore duly authorized and
approved in accordance with the Delaware General Corporation Law and
shall become effective and in full force and effect on or before the
time of purchase; and, prior to the date hereof, the Company has duly
effected and completed a 3-for-4 reverse stock split of the Common
Stock in the manner set forth in the Registration Statement and the
Prospectus;
(c) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement and the Prospectus, to execute and deliver this
Agreement and to issue, sell and deliver the Shares as contemplated
herein;
(d) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the
aggregate, have a material adverse effect on the business, properties,
financial condition, results of operation or prospects of the Company
(as hereinafter defined) taken as a whole (a "Material Adverse
Effect");
(e) the Company has no subsidiaries (as defined under the
Act); the Company does not own, directly or indirectly, any shares of
stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any firm, partnership, joint
venture, association or other entity; complete and correct copies of
the charter and bylaws of the Company and all amendments thereto have
been delivered to you, and, except as set forth in the exhibits to the
Registration Statement, no changes therein will be made on or after the
date hereof or on or before the time of purchase or,
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if later, the additional time of purchase;
(f) the Company has taken all necessary actions to ensure
that, upon the effectiveness of the Registration Statement, the Company
and, to the Company's knowledge, its officers and directors (in their
capacities as such) are and will be in compliance in all material
respects with the provisions of the Sarbanes-Oxley Act of 2002 (the
"Sarbanes-Oxley Act") and applicable to the Company at such time, and
with the rules and regulations of the Commission and the National
Association of Securities Dealers Automated Quotation National Market
System ("NASDAQ") promulgated thereunder;
(g) the Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable and free of
statutory and contractual preemptive rights, resale rights, rights of
first refusal and similar rights;
(h) the capital stock of the Company, including the Shares,
conforms to the description thereof contained in the Registration
Statement and the Prospectus, and the certificates for the Shares are
in due and proper form and the holders of the Shares will not be
subject to personal liability by reason of being such holders;
(i) this Agreement has been duly authorized, executed and
delivered by the Company;
(j) the Company is not in breach or violation of or in default
under (nor has any event occurred which with notice, lapse of time or
both would result in any breach or violation of, constitute a default
under or give the holder of any indebtedness (or a person acting on
such holder's behalf) the right to require the repurchase, redemption
or repayment of all or a part of such indebtedness under) (each such
breach, violation, default or event, a "Default Event") (i) its charter
or bylaws, (ii) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the Company
is a party or by which the Company or any of its properties may be
bound or affected, (iii) any federal, state, local or foreign law,
regulation or rule, or under any rule or regulation of any
self-regulatory organization or other non-governmental regulatory
authority (including, but not limited to, the NASDAQ) or (iv) any
decree, judgment or order applicable to the Company, except in the case
of clause (ii) or clause (iii) for any such Default Event which would
not, individually or in the aggregate, have a Material Adverse Effect,
and the execution, delivery and performance of this Agreement, the
issuance and sale of the Shares and the consummation of the
transactions contemplated hereby does not constitute and will not
conflict with or result in a Default Event under (w) the charter or
bylaws of the Company, (x) any indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence of indebtedness, or any
license, lease, contract or other agreement or instrument to which the
Company is a party or by which the Company or any of its properties may
be bound or affected, (y) any federal, state, local or foreign law,
regulation or rule, or under any rule or regulation of any
self-regulatory organization or other non-governmental
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regulatory authority (including, but not limited to, NASDAQ) or (z) any
decree, judgment or order applicable to the Company, except in the case
of clause (x) for any such Default Event which would not, individually
or in the aggregate, have a Material Adverse Effect;
(k) no approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, or of or with any
self-regulatory organization or other non-governmental regulatory
authority (including, but not limited to, NASDAQ), or approval of the
stockholders of the Company, is required in connection with the
issuance and sale of the Shares or the consummation by the Company of
the transactions contemplated hereby other than registration of the
Shares under the Act, which has been effected, and any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriters
or under the rules and regulations of the National Association of
Securities Dealers, Inc. ("NASD");
(l) except as expressly set forth in the Registration
Statement and the Prospectus, (i) no person has the right, contractual
or otherwise, to cause the Company to issue or sell to it any shares of
Common Stock or shares of any other capital stock or other equity
interests of the Company, (ii) no person has any preemptive rights,
resale rights, rights of first refusal or other rights to purchase any
shares of Common Stock or shares of any other capital stock of or other
equity interests in the Company and (iii) no person has the right to
act as an underwriter or as a financial advisor to the Company in
connection with the offer and sale of the Shares, in the case of each
of the foregoing clauses (i), (ii) and (iii), whether as a result of
the filing or effectiveness of the Registration Statement or the sale
of the Shares as contemplated thereby or otherwise; no person has the
right, contractual or otherwise, to cause the Company to register under
the Act any shares of Common Stock or shares of any other capital stock
of or other equity interests in the Company, or to include any such
shares or interests in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the Shares
as contemplated thereby or otherwise;
(m) except as set forth in the Registration Statement and the
Prospectus, the Company has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required
under any federal, state, local or foreign law, regulation or rule, and
has obtained all necessary licenses, authorizations, consents and
approvals from other persons, in order to conduct its business; the
Company is not in violation of, or in default under, nor has it
received notice of any proceedings relating to revocation or
modification of, any such license, authorization, consent or approval
or any federal, state, local or foreign law, regulation or rule or any
decree, order or judgment applicable to the Company, except where such
violation, default, revocation or modification would not, individually
or in the aggregate, have a Material Adverse Effect;
(n) all legal or governmental proceedings, affiliate
transactions, off-
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balance sheet transactions (including, without limitation, transactions
related to, and the existence of, "variable interest entities" within
the meaning of Financial Accounting Standards Board Interpretation No.
46), contracts, licenses, agreements, leases or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
have been so described or filed as required;
(o) there are no actions, suits, claims, investigations or
proceedings pending or threatened or, to the Company's knowledge after
due inquiry, contemplated to which the Company or any of its directors
or officers is or would be a party or of which any of its properties is
or would be subject at law or in equity, before or by any federal,
state, local or foreign governmental or regulatory commission, board,
body, authority or agency, except any such action, suit, claim,
investigation or proceeding which would not result in a judgment,
decree or order having, individually or in the aggregate, a Material
Adverse Effect or preventing consummation of the transactions
contemplated hereby;
(p) Ernst & Young LLP, whose report on the financial
statements of the Company is included the Registration Statement and
the Prospectus, are independent public accountants as required by the
Act and by Rule 3600T of the Public Company Accounting Oversight Board
(the "PCAOB");
(q) the financial statements included in the Registration
Statement and the Prospectus, together with the related notes and
schedules, present fairly the financial position of the Company as of
the dates indicated and the results of operations and cash flows of the
Company for the periods specified and have been prepared in compliance
with the requirements of the Act and in conformity with generally
accepted accounting principles applied on a consistent basis during the
periods involved; any pro forma financial statements or data included
in the Registration Statement and the Prospectus comply with the
requirements of Regulation S-X of the Act, including, without
limitation, Article 11 thereof, and the assumptions used in the
preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate to
give effect to the transactions or circumstances described therein and
the pro forma adjustments have been properly applied to the historical
amounts in the compilation of those statements and data; the other
financial and statistical data set forth in the Registration Statement
and the Prospectus are accurately presented and prepared on a basis
consistent with the financial statements and books and records of the
Company; there are no financial statements (historical or pro forma)
that are required to be included in the Registration Statement and the
Prospectus (including, without limitation, as required by Rules 3-12 or
3-05 or Article 11 of Regulation S-X under the Act) that are not
included as required; the Company does not have any material
liabilities or obligations, direct or contingent (including any
off-balance sheet obligations or any "variable interest entities"
within the meaning of Financial Accounting Standards Board
Interpretation No. 46), not disclosed in the Registration Statement and
the Prospectus; and all disclosures contained in the Registration
Statement or the Prospectus regarding "non-GAAP financial measures" (as
such term is defined by the rules and regulations of the Commission)
comply with
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Regulation G of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder (collectively, the "Exchange Act")
and Item 10 of Regulation S-K under the Act, to the extent applicable;
(r) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been (i) any material adverse change, or any development involving
a prospective material adverse change, in the business, properties,
management, financial condition or results of operations of the
Company, (ii) any transaction which is material to the Company, (iii)
any obligation, direct or contingent (including any off-balance sheet
obligations), incurred by the Company, which is material to the
Company, (iv) any change in the capital stock or outstanding
indebtedness of the Company or (v) any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company; the
Company does not have any material contingent obligation which is not
set forth in the balance sheet contained in the financial statements
included in the Registration Statement and the Prospectus or otherwise
disclosed in the Registration Statement and the Prospectus;
(s) the Company has obtained for the benefit of the
Underwriters the agreement (a "Lock-Up Agreement"), in the form set
forth as Exhibit A hereto, of each of its directors and officers and
holders of such number of shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock or any
warrant or other right to purchase Common Stock or any such security
satisfactory to UBS; and the Company will not release or purport to
release any person from any Lock-Up Agreement without the prior written
consent of UBS;
(t) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or
an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(u) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be a "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" of a
"holding company" or of a "subsidiary company," as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended
(the "Public Utility Holding Company Act");
(v) the Company has good and marketable title to all property
(real and personal) described in the Registration Statement or in the
Prospectus as being owned by it, free and clear of all liens, claims,
security interests or other encumbrances; all the property described in
the Registration Statement or the Prospectus as being held under lease
by the Company is held thereby under valid, subsisting and enforceable
leases;
(w) the Company owns, or has obtained valid and enforceable
licenses for, or other rights to use, the inventions, patent
applications, patents, trademarks (both registered and unregistered),
tradenames, service names, copyrights, trade secrets and other
proprietary information described in the Registration Statement or the
Prospectus
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as being owned or licensed by it or which are necessary for the conduct
of it business and for the commercialization of its product candidates
(collectively, "Intellectual Property"), except where the failure to
own, license or have such rights would not, individually or in the
aggregate, have a Material Adverse Effect; (i) there are no third
parties who have or, to the Company's knowledge after due inquiry, will
be able to establish rights to any Intellectual Property, except for
the ownership rights of the owners of the Intellectual Property which
is licensed to the Company; (ii) to the Company's knowledge, there is
no infringement by third parties of any Intellectual Property; (iii)
there is no pending or threatened action, suit, proceeding or claim by
others challenging the Company's rights in or to any Intellectual
Property, and, to the knowledge of the Company, there is no reasonable
basis for any such action, suit, proceeding or claim which is not
disclosed in the Registration Statement and the Prospectus; (iv) there
is no pending or threatened action, suit, proceeding or claim by others
challenging the validity, enforceability or scope of any Intellectual
Property, and, to the knowledge of the Company, there is no reasonable
basis for any such action, suit, proceeding or claim which is not
disclosed in the Registration Statement and the Prospectus; (v) there
is no pending or threatened action, suit, proceeding or claim by others
that the Company infringes or otherwise violates, now or upon
commercialization of the product candidates described as under
development in the Registration Statement or the Prospectus, any
patent, trademark, tradename, service name, copyright, trade secret or
other proprietary rights of others, and, to the knowledge of the
Company, there is no reasonable basis for any such action, suit,
proceeding or claim which is not disclosed in the Registration
Statement and the Prospectus; (vi) to the Company's knowledge, there is
no patent or patent application that contains claims that interfere
with the issued or pending claims of any of the Intellectual Property;
and (vii) to the Company's knowledge, there is no prior art that may
render any patent application owned by the Company of the Intellectual
Property unpatentable that has not been disclosed to the U.S. Patent
and Trademark Office;
(x) the Company is not engaged in any unfair labor practice;
except for matters which would not, individually or in the aggregate,
have a Material Adverse Effect, (i) there is (A) no unfair labor
practice complaint pending or, to the Company's knowledge after due
inquiry, threatened against the Company before the National Labor
Relations Board, and no grievance or arbitration proceeding arising out
of or under collective bargaining agreements is pending or threatened,
(B) no strike, labor dispute, slowdown or stoppage pending or, to the
Company's knowledge after due inquiry, threatened against the Company
and (C) no union representation dispute currently existing concerning
the employees of the Company, and (ii) to the Company's knowledge after
due inquiry, (A) no union organizing activities are currently taking
place concerning the employees of the Company and (B) there has been no
violation of any federal, state, local or foreign law relating to
discrimination in the hiring, promotion or pay of employees, any
applicable wage or hour laws or any provision of the Employee
Retirement Income Security Act of 1974 ("ERISA") or the rules and
regulations promulgated thereunder concerning the employees of the
Company;
(y) the Company and its properties, assets and operations are
in compliance with, and hold all permits, authorizations and approvals
required under,
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Environmental Laws (as defined below), except to the extent that
failure to so comply or to hold such permits, authorizations or
approvals would not, individually or in the aggregate, have a Material
Adverse Effect; there are no past, present or, to the Company's
knowledge after due inquiry, reasonably anticipated future events,
conditions, circumstances, activities, practices, actions, omissions or
plans that could reasonably be expected to give rise to any material
costs or liabilities to the Company under, or to interfere with or
prevent compliance by the Company with, Environmental Laws; except as
would not, individually or in the aggregate, have a Material Adverse
Effect, the Company (i) is not the subject of any investigation, (ii)
has not received any notice or claim, (iii) is not a party to or
affected by any pending or threatened action, suit or proceeding, (iv)
is not bound by any judgment, decree or order or (v) has not entered
into any agreement, in each case relating to any alleged violation of
any Environmental Law or any actual or alleged release or threatened
release or cleanup at any location of any Hazardous Materials (as
defined below) (as used herein, "Environmental Law" means any federal,
state, local or foreign law, statute, ordinance, rule, regulation,
order, decree, judgment, injunction, permit, license, authorization or
other binding requirement, or common law, relating to health, safety or
the protection, cleanup or restoration of the environment or natural
resources, including those relating to the distribution, processing,
generation, treatment, storage, disposal, transportation, other
handling or release or threatened release of Hazardous Materials, and
"Hazardous Materials" means any material (including, without
limitation, pollutants, contaminants, hazardous or toxic substances or
wastes) that is regulated by or may give rise to liability under any
Environmental Law);
(z) in the ordinary course of its business, the Company from
time to time reviews the effect of the Environmental Laws on the
handling and disposal by the Company of Hazardous Materials in
connection with its business and operations, in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
cleanup or compliance with the Environmental Laws or any permit,
license or approval, any related constraints on operating activities
and any potential liabilities to third parties);
(aa) all material tax returns required to be filed by the
Company have been filed, and all taxes and other assessments of a
similar nature (whether imposed directly or through withholding)
including any interest, additions to tax or penalties applicable
thereto due and payable or claimed to be due and payable by the Company
have been paid, other than those being contested in good faith and for
which adequate reserves have been provided;
(bb) the Company maintains insurance covering its properties,
operations, personnel and businesses as the Company deems adequate;
such insurance insures against such losses and risks to an extent which
is adequate in accordance with customary industry practice to protect
the Company and its business; all such insurance is fully in force on
the date hereof and will be fully in force at the time of purchase and
any additional time of purchase;
(cc) the Company has not sustained since the date of the last
audited
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financial statements included in the Registration Statement and the
Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree;
(dd) the Company has not sent or received any communication
regarding termination of, or intent not to renew, any of the contracts
or agreements referred to or described in, or filed as an exhibit to,
the Registration Statement, and no such termination or non-renewal has
been threatened by the Company or, to the Company's knowledge after due
inquiry, any other party to any such contract or agreement;
(ee) the Company maintains 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 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;
(ff) the Company has established and maintains "disclosure
controls and procedures" (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act) and "internal control over financial
reporting" (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company is made known
to the Company's Chief Executive Officer and its Chief Financial
Officer by others within those entities, and such disclosure controls
and procedures are effective to perform the functions for which they
were established; the Company's auditors and the Audit Committee of the
Board of Directors of the Company have been advised of: (i) any
significant deficiencies in the design or operation of internal
controls which could adversely affect the Company's ability to record,
process, summarize, and report financial data; and (ii) any fraud,
whether or not material, that involves management or other employees
who have a role in the Company's internal controls; any material
weaknesses in internal controls have been identified for the Company's
auditors; and there have been no significant changes in internal
controls or in other factors that could significantly affect internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses;
(gg) the Company has provided you true, correct and complete
copies of all documentation pertaining to any extension of credit in
the form of a personal loan made, directly or indirectly, by the
Company to any director or executive officer of the Company, or to any
family member or affiliate of any director or executive officer of the
Company; and on or after July 30, 2002, the Company has not, directly
or indirectly: (i) extended credit, arranged to extend credit, or
renewed any extension of credit, in the form of a personal loan, to or
for any director or executive officer of the
-11-
Company, or to or for any family member or affiliate of any director or
executive officer of the Company that has not been duly and fully
repaid or forgiven prior to the filing of the Registration Statement
and described in the Registration Statement and the Prospectus; or (ii)
made any material modification, including any renewal thereof, to any
term of any personal loan to any director or executive officer of the
Company, or any family member or affiliate of any director or executive
officer, which loan was outstanding on July 30, 2002;
(hh) all statistical or market-related data included in the
Registration Statement or the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and the
Company has obtained the written consent to the use of such data from
such sources to the extent required;
(ii) neither the Company nor, to the Company's knowledge after
due inquiry, any employee or agent of the Company has made any payment
of funds of the Company or received or retained any funds in violation
of any law, rule or regulation, which payment, receipt or retention of
funds is of a character required to be disclosed in the Registration
Statement or the Prospectus;
(jj) the preclinical tests and clinical trials that are
described in, or the results of which are referred to in, the
Registration Statement or the Prospectus were and, if still pending,
are being conducted in accordance with protocols filed with the
appropriate regulatory authorities for each such test or trial, as the
case may be; the description of the results of such tests and trials
contained in the Registration Statement or the Prospectus are accurate
and complete and fairly summarize the efficacy and safety profile of
the products and/or product candidates being described; except as set
forth in the Registration Statement and the Prospectus, the Company has
not received any notices or other correspondence from the Food and Drug
Administration of the U.S. Department of Health and Human Services or
any committee thereof or from any other governmental agency requiring
the termination, suspension or modification of any clinical trials that
are described or referred to in the Registration Statement or the
Prospectus (except as set forth in the Registration Statement and the
Prospectus);
(kk) except pursuant to this Agreement, the Company has not
incurred any liability for any finder's or broker's fee or agent's
commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby
or by the Prospectus;
(ll) neither the Company nor any of its directors, officers,
affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(mm) to the Company's knowledge after due inquiry, there are
no affiliations or associations between any member of the NASD and any
of the Company's officers, directors or 5% or greater securityholders,
except as set forth in
-12-
the Registration Statement and the Prospectus; and
(nn) the Company has no current intent of, nor is it currently
contemplating, undertaking a business combination involving any
specific company or other entity.
In addition, any certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters in connection with
the offering of the Shares shall be deemed to be a representation and warranty
by the Company, as the case may be, as to matters covered thereby, to each
Underwriter.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states or other
jurisdictions as you may designate and to maintain such qualifications
in effect so long as you may request for the distribution of the
Shares; provided, however, that the Company shall not be required to
qualify as a foreign corporation or to consent to the service of
process under the laws of any such jurisdiction (except service of
process with respect to the offering and sale of the Shares); and to
promptly advise you of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for
offer or sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement becomes effective,
and thereafter from time to time to furnish to the Underwriters, as
many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver
a prospectus after the nine-month period referred to in Section
10(a)(3) of the Act in connection with the sale of the Shares, the
Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or any post-effective
amendment thereto to be declared effective before the Shares maybe
sold, the Company will endeavor to cause the Registration Statement or
such post-effective amendment to become effective as soon as possible,
and the Company will advise you promptly and, if requested by you, will
confirm such advice in writing, (i) when the Registration Statement and
any such post-effective amendment thereto has become effective, and
(ii) if Rule 430A under the Act is used, when the Prospectus is filed
with the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner under such Rule);
(d) to advise you promptly, confirming such advice in writing,
of any
-13-
request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for,
or the entry of a stop order, suspending the effectiveness of the
Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to use its
best efforts to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or supplement
the Registration Statement or the Prospectus and to provide you and
Underwriters' counsel copies of any such documents for review and
comment a reasonable amount of time prior to any proposed filing and to
file no such amendment or supplement to which you shall object in
writing;
(e) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the Shares; to
provide you with a copy of such reports and statements and other
documents to be filed by the Company pursuant to Section 13, 14 or
15(d) of the Exchange Act during such period for your review and
comment a reasonable amount of time prior to any proposed filing, and
to file no such report, statement or document to which you shall object
in writing; and to promptly notify you of any such filing;
(f) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act and pay the applicable
fees in accordance with the Act;
(g) to advise the Underwriters promptly of the happening of
any event within the time during which a prospectus relating to the
Shares is required to be delivered under the Act which could require
the making of any change in the Prospectus then being used so that the
Prospectus would not include an untrue statement of material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they are made, not
misleading, and, during such time, subject to Section 4(d) hereof, to
prepare and furnish, at the Company's expense, to the Underwriters
promptly such amendments or supplements to such Prospectus as may be
necessary to reflect any such change;
(h) to make generally available to its security holders, and
to deliver to you, an earnings statement of the Company (which will
satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act) as soon as is
reasonably practicable after the termination of such twelve-month
period but in any case not later than fifteen months after the
effective date of the Registration Statement;
(i) to furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and cash flow of
the Company for such fiscal year, accompanied by a copy of the
certificate or report thereon of nationally recognized independent
certified public accountants duly registered with the PCAOB);
-14-
(j) to furnish to you five (5) copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto) and sufficient
copies of the foregoing (other than exhibits) for distribution of a
copy to each of the other Underwriters;
(k) to furnish to you promptly and, upon request, to each of
the other Underwriters for a period of two years from the date of this
Agreement (i) copies of any reports, proxy statements, or other
communications which the Company shall send to its stockholders or
shall from time to time publish or publicly disseminate, (ii) copies of
all annual, quarterly, transition and current reports filed with the
Commission on Forms 10-K, 10-Q or 8-K, or such other similar forms as
may be designated by the Commission and (iii) copies of documents or
reports filed with any national securities exchange on which any class
of securities of the Company is listed; provided, however, that in no
case shall the Company be required to furnish materials pursuant to
this paragraph that are filed and publicly accessible via the EDGAR
database;
(l) to furnish to you as early as practicable prior to the
time of purchase and any additional time of purchase, as the case may
be, but not later than two business days prior thereto, a copy of the
latest available unaudited interim and monthly financial statements, if
any, of the Company which have been read by the Company's independent
certified public accountants, as stated in their letter to be furnished
pursuant to Section 6(c) hereof;
(m) to apply the net proceeds from the sale of the Shares in
the manner set forth under the caption "Use of proceeds" in the
Prospectus;
(n) to pay all costs, expenses, fees and taxes in connection
with (i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus and any amendments or
supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriters and to dealers (including costs of mailing
and shipment), (ii) the registration, issue, sale and delivery of the
Shares including any stock or transfer taxes and stamp or similar
duties payable upon the sale, issuance or delivery of the Shares to the
Underwriters, (iii) the producing, word processing and/or printing of
this Agreement, any Agreement Among Underwriters, any dealer
agreements, any Powers of Attorney and any closing documents (including
compilations thereof) and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and (except
closing documents) to dealers (including costs of mailing and
shipment), (iv) the qualification of the Shares for offering and sale
under state or foreign laws and the determination of their eligibility
for investment under state or foreign law as aforesaid (including the
legal fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers,
(v) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on the NASDAQ and any
registration thereof under the Exchange Act, (vi) any filing for review
of the public offering of the Shares by the NASD, including the legal
fees and filing fees and other disbursements of counsel to the
Underwriters, (vii) the fees and disbursements of any transfer agent or
registrar for the
-15-
Shares, (viii) the costs and expenses of the Company relating to
presentations or meetings undertaken in connection with the marketing
of the offering and sale of the Shares to prospective investors and the
Underwriters' sales forces, including, without limitation, expenses
associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road
show presentations, travel, lodging and other expenses incurred by the
officers of the Company and any such consultants, and half of the cost
of any aircraft chartered in connection with the road show with the
prior approval of the Company and (ix) the performance of the Company's
other obligations hereunder;
(o) not to sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose
of or agree to dispose of, directly or indirectly, any Common Stock or
securities convertible into or exchangeable or exercisable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common
Stock, or enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of
ownership of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or warrants or other
rights to purchase Common Stock, whether any such transaction is to be
settled by delivery of Common Stock or such other securities, in cash
or otherwise, or file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of
Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or warrants or other rights to purchase
Common Stock or any other securities of the Company that are
substantially similar to Common Stock for a period of 180 days after
the date hereof (the "Lock-Up Period"), without the prior written
consent of UBS; except that if (i) during the period that begins on the
date that is 15 calendar days plus three business days before the last
day of the 180-day restricted period and ends on the last day of the
180-day restricted period, the Company issues an earnings release or
material news or a material event relating to the Company occurs, or
(ii) prior to the expiration of the 180-day restricted period, the
Company announces that it will release earnings results during the
16-day period beginning on the last day of the 180-day period, the
restrictions imposed by this section shall continue to apply until the
expiration of the date that is 15 calendar days plus three business
days after the date on which the issuance of the earnings release or
the material news or material event occurs; provided, however, that
this section shall not apply to (i) the registration of the Shares and
the sales to the Underwriters pursuant to this Agreement, (ii)
issuances of Common Stock upon the exercise of options or warrants
disclosed as outstanding in the Registration Statement and the
Prospectus and (iii) the issuance of employee stock options not
exercisable during the Lock-Up Period pursuant to stock option plans
described in the Registration Statement and the Prospectus;
(p) prior to the time of purchase or the additional time of
purchase, as the case may be, to issue no press release or other
communication directly or indirectly and hold no press conferences with
respect to the Company, the financial condition, results of operations,
business, properties, assets, or liabilities of the Company, or the
offering of the Shares, without your prior consent;
-16-
(q) to use its best efforts to cause the Common Stock to be
listed for quotation on the NASDAQ and to maintain such listing;
(r) to maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the
Common Stock; and
(s) the Company will comply in all material respects with the
provisions of the Sarbanes-Oxley Act applicable to the Company, and
with the rules and regulations of the Commission and the NASDAQ
promulgated thereunder.
5. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the fifth paragraph of Section 8 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 4(n) hereof,
reimburse the Underwriters for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof, at the time of
purchase and, if applicable, at the additional time of purchase, the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, an opinion of
Heller Ehrman White & McAuliffe LLP, counsel for the Company, addressed
to the Underwriters, and dated the time of purchase or the additional
time of purchase, as the case may be, with executed copies for each of
the other Underwriters, and in form and substance satisfactory to Dewey
Ballantine LLP, counsel for the Underwriters, in the form set forth in
Exhibit B hereto.
(b) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, an opinion of
Fish & Richardson P.C., special counsel for the Company with respect to
patents and proprietary rights, addressed to the Underwriters, and
dated the time of purchase or the additional time of purchase, as the
case may be, with executed copies for each of the other Underwriters,
and in form and substance satisfactory to Dewey Ballantine LLP, counsel
for the Underwriters, in the form set forth in Exhibit C hereto.
(c) You shall have received from Ernst & Young LLP letters
dated, respectively, the date of this Agreement, the time of purchase
and, if applicable, the additional time of purchase, and addressed to
the Underwriters (with executed copies for each of the Underwriters) in
the forms heretofore approved by UBS.
(d) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the favorable opinion
of Dewey Ballantine LLP, counsel for the Underwriters, dated the time
of purchase or the additional time of purchase, as the case may be, in
form and substance reasonably satisfactory to UBS.
-17-
(e) No Prospectus or amendment or supplement to the
Registration Statement or the Prospectus shall have been filed to which
you object in writing.
(f) The Registration Statement shall become effective not
later than 5:30 P.M., New York City time, on the date of this Agreement
and, if Rule 430A under the Act is used, the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under the Act at or
before 5:30 P.M., New York City time, on the second full business day
after the date of this Agreement and any registration statement
pursuant to Rule 462(b) under the Act required in connection with the
offering and sale of the Shares shall have been filed and become
effective no later than 10:00 P.M., New York City time, on the date of
this Agreement.
(g) Prior to the time of purchase, and, if applicable, the
additional time of purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto
shall 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; and (iii) the Prospectus
and all amendments or supplements thereto shall 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
the light of the circumstances under which they are made, not
misleading.
(h) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, (A) no material adverse change or any development involving a
prospective material adverse change in the business, properties,
management, financial condition or results of operations of the Company
shall occur or become known and (B) no transaction which is material
and adverse to the Company has been entered into by the Company.
(i) The Company will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you a
certificate of its Chief Executive Officer and its Chief Financial
Officer in the form attached as Exhibit D hereto.
(j) You shall have received signed Lock-Up Agreements referred
to in Section 3(s) hereof.
(k) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
time of purchase and, if applicable, the additional time of purchase,
as you may reasonably request.
(l) The Shares shall have been approved for quotation on the
NASDAQ, subject only to notice of issuance at or prior to the time of
purchase or the additional time of purchase, as the case may be.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of
-18-
the effectiveness of the Registration Statement, or (ii) if Rule 430A under the
Act is used, when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of UBS or any group of Underwriters
(which may include UBS) which has agreed to purchase in the aggregate at least
50% of the Firm Shares, if (x) since the time of execution of this Agreement or
the earlier respective dates as of which information is given in the
Registration Statement and the Prospectus, there has been any material adverse
change or any development involving a prospective material adverse change in the
business, properties, management, financial condition or results of operations
of the Company which would, in UBS's judgment or in the judgment of such group
of Underwriters, make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement and the Prospectus, or (y) since the
time of execution of this Agreement, there shall have occurred: (i) a suspension
or material limitation in trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ; (ii) a suspension or
material limitation in trading in the Company's securities on NASDAQ; (iii) a
general moratorium on commercial banking activities declared by either federal
or New York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) an
outbreak or escalation of hostilities or acts of terrorism involving the United
States or a declaration by the United States of a national emergency or war; or
(v) any other calamity or crisis or any change in financial, political or
economic conditions in the United States or elsewhere, if the effect of any such
event specified in clause (iv) or (v) in UBS's judgment or in the judgment of
such group of Underwriters makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares on the terms and in the manner
contemplated in the Registration Statement and the Prospectus, or (z) since the
time of execution of this Agreement, there shall have occurred any downgrading,
or any notice or announcement shall have been given or made of (i) any intended
or potential downgrading or (ii) any watch, review or possible change that does
not indicate an affirmation or improvement in the rating accorded any securities
of or guaranteed by the Company by any "nationally recognized statistical rating
organization," as that term is defined in Rule 436(g)(2) under the Act.
If UBS or any group of Underwriters elects to terminate this Agreement
as provided in this Section 7, the Company and each other Underwriter shall be
notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement, or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(n), 5 and 9 hereof), and the Underwriters shall be under
no obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections 6 and 7
hereof, if any Underwriter shall default in its obligation to take up and pay
for the Firm Shares to be purchased by it hereunder (otherwise than for a
failure of a condition set forth in Section 6
-19-
hereof or a reason sufficient to justify the termination of this Agreement under
the provisions of Section 7 hereof) and if the number of Firm Shares which all
Underwriters so defaulting shall have agreed but failed to take up and pay for
does not exceed 10% of the total number of Firm Shares, the non-defaulting
Underwriters shall take up and pay for (in addition to the aggregate number of
Firm Shares they are obligated to purchase pursuant to Section 1 hereof) the
number of Firm Shares agreed to be purchased by all such defaulting
Underwriters, as hereinafter provided. Such Shares shall be taken up and paid
for by such non-defaulting Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event no
such designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
Firm Shares set forth opposite the names of such non-defaulting Underwriters in
Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term "Underwriter" as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A hereto.
If the aggregate number of Firm Shares which the defaulting Underwriter
or Underwriters agreed to purchase exceeds 10% of the total number of Firm
Shares which all Underwriters agreed to purchase hereunder, and if neither the
non-defaulting Underwriters nor the Company shall make arrangements within the
five business day period stated above for the purchase of all the Firm Shares
which the defaulting Underwriter or Underwriters agreed to purchase hereunder,
this Agreement shall terminate without further act or deed and without any
liability on the part of the Company to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Company. Nothing in this paragraph, and no action taken hereunder, shall relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers, and any person
who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons, from and against any loss, damage,
expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any
such person may
-20-
incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of
or is based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment
thereof by the Company) or in a Prospectus (the term Prospectus for the
purpose of this Section 9 being deemed to include any Preliminary
Prospectus, the Prospectus and the Prospectus as amended or
supplemented by the Company), or arises out of or is based upon any
omission or alleged omission to state a material fact required to be
stated in either such Registration Statement or such Prospectus or
necessary to make the statements made therein not misleading, except
insofar as any such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with
information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use
in, such Registration Statement or such Prospectus or arises out of or
is based upon any omission or alleged omission to state a material fact
in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such
information not misleading, (ii) any untrue statement or alleged untrue
statement made by the Company in Section 3 hereof or the failure by the
Company to perform when and as required any agreement or covenant
contained herein or (iii) any untrue statement or alleged untrue
statement of any material fact contained in any audio or visual
materials provided by the Company or based upon written information
furnished by or on behalf of the Company including, without limitation,
slides, videos, films or tape recordings, specifically for use in
connection with the road show for the marketing of the Shares.
If any action, suit or proceeding (each, a "Proceeding") is brought
against an Underwriter or any such person in respect of which indemnity may be
sought against the Company pursuant to the foregoing paragraph, such Underwriter
or such person shall promptly notify the Company in writing of the institution
of such Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that the omission
to so notify the Company shall not relieve the Company from any liability which
the Company may have to any Underwriter or any such person or otherwise except
to the extent that the Company shall not have otherwise learned of such
Proceeding and such failure results in the forfeiture by the Company of
substantial rights or defenses. Such Underwriter or such person shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or of such
person unless the employment of such counsel shall have been authorized in
writing by the Company in connection with the defense of such Proceeding or the
Company shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such Proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from, additional to
or in conflict with those available to the Company (in which case the Company
shall not have the right to direct the defense of such Proceeding on behalf of
the indemnified party or parties but the Company may employ counsel and
participate in the defense thereof at the expense of the Company), in any of
which events such fees and expenses shall be borne by the Company and
-21-
paid as incurred (it being understood, however, that the Company shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The Company shall not be liable for any settlement of any
Proceeding effected without its written consent but, if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless any
Underwriter and any such person from and against any loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have fully reimbursed the indemnified party pursuant to such
request in accordance with this Agreement prior to the date of such settlement
and (iii) such indemnified party shall have given the indemnifying party at
least 30 days' prior notice of its intention to settle. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault, culpability or a failure to act, by or on behalf of such indemnified
party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, and any person
who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all
of the foregoing persons, from and against any loss, damage, expense,
liability or claim (including the reasonable cost of investigation)
which, jointly or severally, the Company or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is
based upon any untrue statement or alleged untrue statement of a
material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of
such Underwriter through you to the Company expressly for use in, the
Registration Statement (or in the Registration Statement as amended by
any post-effective amendment thereof by the Company) or in a
Prospectus, or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information
required to be stated in such Registration Statement or such Prospectus
or necessary to make such information not misleading.
If any Proceeding is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing of the institution of such Proceeding and such
Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or
-22-
any such person or otherwise except to the extent that such Underwriters shall
not have otherwise learned of such Proceeding and such failure results in the
forfeiture by such Underwriter of substantial rights or defenses. The Company or
such person shall have the right to employ its own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of the Company or
such person unless the employment of such counsel shall have been authorized in
writing by such Underwriter in connection with the defense of such Proceeding or
such Underwriter shall not have, within a reasonable period of time in light of
the circumstances, employed counsel to defend such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to or in
conflict with those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but such Underwriter may employ
counsel and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), in any of which events
such fees and expenses shall be borne by such Underwriter and paid as incurred
(it being understood, however, that such Underwriter shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel) in
any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). No
Underwriter shall be liable for any settlement of any such Proceeding effected
without the written consent of such Underwriter but, if settled with the written
consent of such Underwriter, such Underwriter agrees to indemnify and hold
harmless the Company and any such person from and against any loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have reimbursed the indemnified party pursuant
to such request in accordance with this Agreement prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an
admissions of fault, culpability or a failure to act, by or on behalf of such
indemnified party.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of
this Section 9 or insufficient to hold an indemnified party harmless in
respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, damages, expenses, liabilities or claims (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but
-23-
also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities
or claims, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same respective
proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses)
received by the Company, and the total underwriting discounts and
commissions received by the Underwriters, bear to the aggregate public
offering price of the Shares. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined by
reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged
omission relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this
subsection shall be deemed to include any legal or other fees or
expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(d) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in subsection (c) above. Notwithstanding the provisions of
this Section 9, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Shares underwritten by such Underwriter and distributed to the public
were offered to the public exceeds the amount of any damage which such
Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 9 are
several in proportion to their respective underwriting commitments and
not joint.
(e) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the
Company contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, or by or on behalf of the Company, its
directors or officers or any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
shall survive any termination of this Agreement or the issuance and
delivery of the Shares. The Company and each Underwriter agree promptly
to notify each other of the commencement of any Proceeding against it
and, in the case of the Company, against any of the Company's officers
or directors in connection with the
-24-
issuance and sale of the Shares, or in connection with the Registration
Statement or the Prospectus.
10. Information Furnished by the Underwriters. The statements set forth
in the eighth, fourteenth, fifteenth, sixteenth and seventeenth paragraphs under
the caption "Underwriting" in the Prospectus, only insofar as such statements
relate to the amount of selling concession and reallowance or to over-allotment
and stabilization activities that may be undertaken by the Underwriters,
constitute the only information furnished by or on behalf of the Underwriters as
such information is referred to in Sections 3 and 9 hereof.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, 299 Park Avenue, New York, NY 10171-0026, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at 1240 Elko
Drive, Sunnyvale, CA 94089, Attention: _________.
12. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no Claim may
be commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction, service and venue
in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against UBS or any indemnified party.
Each of UBS and the Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates) waives all right
to trial by jury in any action, proceeding or counterclaim (whether based upon
contract, tort or otherwise) in any way arising out of or relating to this
Agreement. The Company agrees that a final judgment in any such action,
proceeding or counterclaim brought in any such court shall be conclusive and
binding upon the Company and may be enforced in any other courts to the
jurisdiction of which the Company is or may be subject, by suit upon such
judgment.
14. Parties at Interest. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company and to the
extent provided in Section 9 hereof the controlling persons, partners, directors
and officers referred to in such Section, and their respective successors,
assigns, heirs, personal representatives and executors and administrators. No
other person, partnership, association or corporation (including a purchaser, as
such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
-25-
15. Counterparts. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
16. Successors and Assigns. This Agreement shall be binding upon the
Underwriters and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
17. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG,
is not a bank and is separate from any affiliated bank, including any U.S.
branch or agency of UBS AG. Because UBS is a separately incorporated entity, it
is solely responsible for its own contractual obligations and commitments,
including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by UBS are not deposits, are not insured
by the Federal Deposit Insurance Corporation, are not guaranteed by a branch or
agency, and are not otherwise an obligation or responsibility of a branch or
agency.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
-26-
If the foregoing correctly sets forth the understanding between the
Company and the several Underwriters, please so indicate in the space provided
below for that purpose, whereupon this agreement and your acceptance shall
constitute a binding agreement between the Company and the Underwriters,
severally.
Very truly yours,
ADEZA BIOMEDICAL CORPORATION
By:
------------------------------------
Name:
Title:
Accepted and agreed to as of the date
first above written, on behalf of
themselves and the other several
Underwriters named in Schedule A
UBS SECURITIES LLC
SG COWEN & CO., LLC
THOMAS WEISEL PARTNERS LLC
WILLIAM BLAIR & COMPANY, L.L.C.
By: UBS SECURITIES LLC
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
SCHEDULE A
Number of
Underwriter Firm Shares
- ------------------------------------------------------------------------------------------------- -------------------
UBS Securities LLC............................................................................ [____]
SG Cowen & CO., LLC.......................................................................... [____]
Thomas Weisel Partners LLC................................................................... [____]
William Blair & Company, L.L.C................................................................ [____]
-------------------
Total.................................................................................... [____]
===================
EXHIBIT A
Lock-Up Agreement
, 2004
UBS Securities LLC
SG Cowen & Co., LLC
Thomas Weisel Partners LLC
William Blair & Company, L.L.C.
As Representatives of the several Underwriters
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with the
proposed Underwriting Agreement (the "Underwriting Agreement") to be entered
into by Adeza Biomedical Corporation, a Delaware corporation (the "Company"),
and you, as Representatives of the several Underwriters named therein, with
respect to the initial public offering (the "Offering") of common stock, par
value $0.001 per share, of the Company (the "Common Stock").
In order to induce you to enter into the Underwriting Agreement, the
undersigned agrees that, for a period beginning on the date hereof and ending on
the date that is 180 days after the date of the final prospectus relating to the
Offering (the "Lock-Up Period"), the undersigned will not, without the prior
written consent of UBS Securities LLC, (i) sell, offer to sell, contract or
agree to sell, hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, or file (or
participate in the filing of) a registration statement with the Securities and
Exchange Commission (the "Commission") in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder
with respect to, any Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or warrants or other rights to
purchase Common Stock, (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock, whether any such transaction is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise, or (iii) publicly announce an
intention to effect any transaction specified in clause (i) or (ii). The
foregoing sentence shall not apply to (a) the registration of or sale to the
Underwriters (as defined in the Underwriting Agreement) of any Common Stock
pursuant to the Offering and the Underwriting Agreement, (b) bona fide gifts,
provided the recipient thereof
agrees in writing with the Underwriters to be bound by the terms of this Lock-Up
Agreement and confirms that he, she or it has been in compliance with the terms
of this Lock-Up Agreement since the date hereof, or (c) dispositions to any
trust for the direct or indirect benefit of the undersigned and/or the immediate
family members of the undersigned, provided that such trust agrees in writing
with the Underwriters to be bound by the terms of this Lock-Up Agreement and
confirms that it has been in compliance with the terms of this Lock-Up Agreement
since the date hereof.
If (i) during the period that begins on the date that is 15 calendar
days plus three business days before the last day of the 180-day restricted
period and ends on the last day of the 180-day restricted period, the Company
issues an earnings release or material news or a material event relating to the
Company occurs, or (ii) prior to the expiration of the 180-day restricted
period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 180-day period, the restrictions
imposed by this letter shall continue to apply until the expiration of the date
that is 15 calendar days plus three business days after the date on which the
issuance of the earnings release or the material news or material event occurs.
In addition, the undersigned hereby waives any rights the undersigned
may have to require registration of Common Stock in connection with the filing
of a registration statement relating to the Offering. The undersigned further
agrees that, for the period beginning from the date hereof and ending on the
date that is 180 days after the date of the final prospectus relating to the
Offering, the undersigned will not, without the prior written consent of UBS
Securities LLC make any demand for, or exercise any right with respect to, the
registration of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock.
* * *
A-2
If (i) the Underwriting Agreement is not executed on or prior to June
30, 2005, (ii) the Company notifies you in writing that it does not intend to
proceed with the Offering, (iii) the registration statement filed with the
Securities and Exchange Commission with respect to the Offering is withdrawn or
(iv) for any reason the Underwriting Agreement shall be terminated prior to the
time of purchase (as defined in the Underwriting Agreement), this Lock-Up
Agreement shall be terminated and the undersigned shall be released from its
obligations hereunder.
Yours very truly,
-------------------------------------
Name:
A-3
EXHIBIT D
OFFICERS' CERTIFICATE
1. I have reviewed the Registration Statement and the Prospectus.
2. The representations and warranties of the Company as set forth in the
Underwriting Agreement are true and correct as of the time of purchase and, if
applicable, the additional time of purchase.
3. The Company has performed all of its obligations under the
Underwriting Agreement as are to be performed at or before the time of purchase
and at or before the additional time of purchase, as the case may be.
4. The conditions set forth in paragraphs (g) and (h) of Section 6 of
the Underwriting Agreement have been met.
5. The financial statements and other financial information included in
the Registration Statement and the Prospectus fairly present the financial
condition, results of operations and cash flows of the Company as of, and for,
the periods presented in the Registration Statement.
D-1