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Exhibit 1.1
[ ]
Shares
GENOPTIX, INC.
Common Stock
($0.001 Par Value)
UNDERWRITING AGREEMENT
[ ],
2008
LEHMAN
BROTHERS INC.
As Representative of the several
Underwriters named in Schedule 1
attached hereto,
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and
Gentlemen:
Certain
stockholders of GENOPTIX, INC., a Delaware corporation (the
" Company "),
named in Schedule 2
attached hereto (the " Selling Stockholders "), propose
to sell an aggregate of
[ ]
shares (the " Firm Stock
") of the Company's common stock, par value $0.001
per share (the " Common Stock
"). In addition, the Selling Stockholders propose to
grant to the underwriters (the " Underwriters ") named in
Schedule 1 attached to this agreement (this " Agreement ") options to purchase
up to an aggregate of
[ ]
additional shares of the Common Stock on the terms set forth in
Section 3 (the " Option
Stock "). The Firm Stock and the Option
Stock, if purchased, are hereinafter collectively called the
" Stock ." This
is to confirm the agreement concerning the purchase of the Stock
from the Selling Stockholders by the Underwriters.
1.
Representations,
Warranties and Agreements of the Company . The Company represents, warrants and
agrees that:
-
(a) A
registration statement on Form S-1 relating to the Stock has
(i) been prepared by the Company in conformity in all material
respects with the requirements of the Securities Act of 1933, as
amended (the " Securities Act
"), and the rules and regulations (the "
Rules and Regulations ") of the Securities and Exchange Commission (the "
Commission ")
thereunder; (ii) been filed with the Commission under the
Securities Act; and (iii) become effective under the
Securities Act. Copies of such registration statement and any
amendment thereto have been delivered by the Company to you as the
representative (the " Representative ") of the
Underwriters. As used in this Agreement:
-
(i) "
Applicable Time "
means [ 5:30 ] p.m. (New York City time) on the date of this
Agreement;
(ii) "
Effective Date " means
the date and time as of which such registration statement was
declared effective by the Commission;
(iii) "
Issuer Free Writing Prospectus
" means each "free writing prospectus" (as defined
in Rule 405 of the Rules and Regulations) prepared by the
Company or prepared on behalf of the Company with the Company's
consent or used or referred to by the Company in connection with
the offering of the Stock;
(iv) "
Preliminary Prospectus " means any preliminary prospectus relating to the Stock
included in such registration statement or filed with the
Commission pursuant to Rule 424(b) of the Rules and
Regulations;
-
-
(v) "
Pricing Disclosure Package " means, as of the Applicable Time, the most recent Preliminary
Prospectus together with the information included in
Schedule 3 hereto
and each Issuer Free Writing Prospectus filed or used by the
Company on or before the Applicable Time, other than a road show
that is an Issuer Free Writing Prospectus but is not required to be
filed under Rule 433 of the Rules and Regulations;
(vi) "
Prospectus " means the
final prospectus relating to the Stock, as filed with the
Commission pursuant to Rule 424(b) of the Rules and
Regulations; and
(vii) "
Registration Statement " means such registration statement, as amended as of the
Effective Date, including the Preliminary Prospectus included
therein or the Prospectus and all exhibits to such registration
statement.
Any reference to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents incorporated by reference therein
pursuant to Form S-1 under the Securities Act as of the date
of such Preliminary Prospectus or the Prospectus, as the case may
be. Any reference to the " most recent
Preliminary Prospectus " shall be deemed
to refer to the latest Preliminary Prospectus included in the
Registration Statement or filed pursuant to Rule 424(b) prior
to or on the date hereof. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending the effectiveness of the Registration
Statement, and no proceeding or examination for such purpose has
been instituted or, to the Company's knowledge, threatened by the
Commission. The Commission has not notified the Company of any
objection to the use of the form of the Registration
Statement.
(b) The
Company was not at the time of initial filing of the Registration
Statement and at the earliest time thereafter that the Company or
another offering participant made a bona
fide offer (within the meaning of
Rule 164(h)(2) of the Rules and Regulations) of the Stock, is
not on the date hereof and will not be on the applicable Delivery
Date an "ineligible issuer" (as defined in Rule 405). The
Company has met all the conditions for incorporation by reference
pursuant to the General Instructions to Form S-1.
(c) The
Registration Statement conformed and will conform in all material
respects on the Effective Date and on the applicable Delivery Date,
and any amendment to the Registration Statement filed after the
date hereof will conform in all material respects when filed, to
the requirements of the Securities Act and the Rules and
Regulations. The most recent Preliminary Prospectus conformed, and
the Prospectus will conform, in all material respects when filed
with the Commission pursuant to Rule 424(b) and on the
applicable Delivery Date to the requirements of the Securities Act
and the Rules and Regulations. The documents incorporated by
reference in any Preliminary Prospectus or the Prospectus
conformed, when filed with the Commission, in all material respects
to the requirements of the Exchange Act or the Securities Act, as
applicable, and the rules and regulations of the Commission
thereunder.
(d) The
Registration Statement did not, as of the Effective Date, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Registration Statement in reliance upon and in conformity with
written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 10(f).
(e) The
Prospectus will not, as of its date and on the applicable Delivery
Date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that no representation or
warranty is made as to information
2
contained in or
omitted from the Prospectus in reliance upon and in conformity with
written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 10(f).
(f) The
documents incorporated by reference in any Preliminary Prospectus
or the Prospectus did not, when filed with the Commission, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(g) The
Pricing Disclosure Package did not, as of the Applicable Time,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in
Section 10(f).
(h) Each
Issuer Free Writing Prospectus (including, without limitation, any
road show that is a free writing prospectus under Rule 433),
when considered together with the Pricing Disclosure Package as of
the Applicable Time, did 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 were made, not
misleading.
(i) Each
Issuer Free Writing Prospectus conformed or will conform in all
material respects to the requirements of the Securities Act and the
Rules and Regulations on the date of first use, and the Company has
complied with all prospectus delivery and any filing requirements
applicable to such Issuer Free Writing Prospectus pursuant to the
Rules and Regulations. The Company has not made any offer relating
to the Stock that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the Representative,
except as set forth on Schedule 4 hereto. The
Company has retained in accordance with the Rules and Regulations
all Issuer Free Writing Prospectuses that were not required to be
filed pursuant to the Rules and Regulations. The Company has taken
all actions reasonably necessary so that any "road show" (as
defined in Rule 433 of the Rules and Regulations) in
connection with the offering of the Stock will not be required to
be filed pursuant to the Rules and Regulations.
(j) The
Company has been duly organized, is validly existing and in good
standing as a corporation under the laws of its jurisdiction of
organization and is duly qualified to do business and in good
standing as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified or in good standing could not, in the aggregate,
reasonably be expected to have a material adverse effect on the
financial condition, results of operations, stockholders' equity,
properties, business or prospects of the Company (a "
Material Adverse Effect "); the Company has all power and authority necessary to own or
hold its properties and to conduct the businesses in which it is
engaged. Except as disclosed in the most recent Preliminary
Prospectus, the Company does not own or control, directly or
indirectly, any corporation, association or other entity other than
the subsidiaries listed in Exhibit 21 to the Registration
Statement and in the Company's Annual Report on Form 10-K for
the most recent fiscal year.
(k) The
Company has an authorized capitalization as set forth in each of
the most recent Preliminary Prospectus and the Prospectus, and all
of the issued shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and non-assessable,
conform in all material respects to the description thereof
contained in the most recent Preliminary Prospectus and were issued
in compliance with federal and state securities laws and not in
violation of any preemptive right, resale right, right of first
refusal or similar right. The certificates
3
evidencing the Stock
are in due and proper legal form and have been duly authorized for
issuance by the Company. All of the Company's options, warrants and
other rights to purchase or exchange any securities for shares of
the Company's capital stock have been duly authorized and validly
issued, conform in all material respects to the description thereof
contained in the most recent Preliminary Prospectus and were issued
in compliance with federal and state securities laws and in
compliance in all material respects with the terms of the plans
under which such options, warrants or other rights may have been
issued.
(l) The
shares of the Stock to be sold by the Selling Stockholders to the
Underwriters hereunder have been duly authorized and will conform
in all material respects to the description thereof contained in
the most recent Preliminary Prospectus and will be issued in
compliance with federal and state securities laws.
(m) The
Company has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement. This
Agreement has been duly and validly authorized, executed and
delivered by the Company.
(n) The
execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated
hereby will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, impose any lien,
charge or encumbrance upon any property or assets of the Company,
or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement, license or other agreement or instrument to
which the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject;
(ii) result in any violation of the provisions of the charter
or bylaws (or similar organizational documents) of the Company; or
(iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties or
assets, except in the case of clauses (i) and (iii) any
such conflict, breach, violation, lien, charge, encumbrance or
default that would not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(o) No
consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body having
jurisdiction over the Company or any of its properties or assets is
required for the execution, delivery and performance of this
Agreement by the Company or the consummation of the transactions
contemplated hereby, except for (i) the registration of the
Stock under the Securities Act, (ii) such consents, approvals,
authorizations, registrations or qualifications as have been
obtained, and (iii) such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Securities Exchange Act of 1934, as amended (the "
Exchange Act "), and
applicable state or foreign securities laws in connection with the
purchase and sale of the Stock by the Underwriters.
(p) There
are no contracts, agreements or understandings between the Company
and any person granting such person the right (other than rights
which have been waived in writing or otherwise satisfied) to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned
or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company
under the Securities Act.
(q) The
Company has not sustained, since the date of the latest audited
financial statements included in the most recent Preliminary
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, and since such date, there has not been
any change in the capital stock, debt or total current assets of
the Company or any adverse change, or any development involving a
prospective adverse change, in or affecting the financial
condition,
4
results of operations,
stockholders' equity, properties, management, business or prospects
of the Company, in each case except as could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(r) Since
the date as of which information is given in the most recent
Preliminary Prospectus, the Company has not (i) incurred any
material liability or obligation, direct or contingent,
(ii) entered into any material transaction not in the ordinary
course of business or (iii) declared or paid any dividend on
its capital stock.
(s) The
historical financial statements (including the related notes and
supporting schedules) included in the most recent Preliminary
Prospectus comply as to form in all material respects with the
requirements of Regulation S-X under the Securities Act and
present fairly in all material respects the financial condition,
results of operations and cash flows of the entities purported to
be shown thereby at the dates and for the periods indicated and
have been prepared in conformity with accounting principles
generally accepted in the United States applied on a consistent
basis throughout the periods involved.
(t) Ernst &
Young LLP, who have certified certain financial statements of
the Company and any consolidated subsidiaries, whose report appears
in the most recent Preliminary Prospectus and who have delivered
the initial letter referred to in Section 9(h) hereof, are an
independent registered public accounting firm as required by the
Securities Act and the Rules and Regulations.
(u) The
Company has good and marketable title to all material tangible
personal property owned by it, in each case free and clear of all
liens, encumbrances and defects, except such as are described in
the most recent Preliminary Prospectus or such as do not materially
affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the
Company; and all material tangible assets held under lease by the
Company are held by it under valid, subsisting and enforceable
leases, with such exceptions as do not materially interfere with
the use made and proposed to be made of such assets by the Company.
The Company does not own any real property.
(v) The
Company carries, or is covered by, insurance from insurers of
recognized financial responsibility in such amounts and covering
such risks as the Company reasonably believes is adequate for the
conduct of its business and the value of its properties and as is
customary for companies engaged in similar businesses in similar
industries. All policies of insurance of the Company are in full
force and effect; the Company is in compliance with the terms of
such policies in all material respects; and the Company has not
received notice from any insurer or agent of such insurer that
capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance; there are
no claims by the Company under any such policy or instrument as to
which any insurance company is denying liability or defending under
a reservation of rights clause; and the Company does not have any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not reasonably be
expected to have a Material Adverse Effect.
(w) The
statistical and market-related data included under the captions
"Prospectus Summary," "Management's Discussion and Analysis of
Financial Condition and Results of Operations," and "Business"
included in the most recent Preliminary Prospectus and the
consolidated financial statements of the Company included in the
most recent Preliminary Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate in
all material respects and, to the extent required by such sources,
the Company has obtained the consent to the use of such data from
such sources.
5
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(x) The
Company is not, and as of the applicable Delivery Date and, after
giving effect to the offer and sale of the Stock will not be
(i) an "investment company" within the meaning of such term
under the Investment Company Act of 1940, as amended (the "
Investment Company Act "), and the rules and regulations of the Commission thereunder
or (ii) a "business development company" (as defined in
Section 2(a)(48) of the Investment Company Act).
(y) There
are no legal or governmental proceedings pending to which the
Company is a party or of which any property or assets of the
Company is the subject that would, in the aggregate, reasonably be
expected to have a Material Adverse Effect or would, in the
aggregate, reasonably be expected to have a material adverse effect
on the performance of this Agreement or the consummation of the
transactions contemplated hereby; and to the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or others.
(z) There
are no legal or governmental proceedings or contracts or other
documents of a character required to be described in the
Registration Statement or the most recent Preliminary Prospectus
or, in the case of documents, to be filed as exhibits to the
Registration Statement, that are not described and filed as
required. To the Company's knowledge, each other party to any such
contract, agreement or arrangement has the intention to perform its
obligations as contemplated by the terms thereof in all material
respects; and the statements made or incorporated by reference in
the most recent Preliminary Prospectus under the captions "Risk
Factors—If we fail to comply with healthcare fraud and abuse
laws that govern, among other things, sales and marketing, billing
and claims processing practices, we could face substantial
penalties and our business, results of operations and financial
condition could be adversely affected," "Risk Factors—Our
business could be harmed from the loss or suspension of a license
or imposition of a fine or penalties under, or future changes in,
the law or regulations of the Clinical Laboratory Improvement
Amendments of 1988, or those of other state or local agencies,"
"Risk Factors—Failure to comply with the HIPAA security and
privacy regulations may increase our operational costs," "Risk
Factors—Anti-takeover provisions in our charter documents and
under Delaware law could make an acquisition of us, which may be
beneficial to our stockholders, more difficult and may prevent
attempts by our stockholders to replace or remove our current
management," "Business—Billing and
Reimbursement—Reimbursement," "Business—Governmental
Regulation," "Business—Cartesian Medical Group, Inc.,"
"Executive Compensation—Post-Employment
Compensation—Potential Payment Under Employment Arrangements"
[as incorporated by reference from the Form 10-K], "Executive
Compensation—Equity Benefit Plans" [as incorporated by
reference from the Form 10-K], "Description of Capital Stock,"
"Shares Eligible For Future Sale," "Material U.S. Federal Income
Tax Consequences to Non-U.S. Holders," "Underwriting," and
Item 14 of Part II insofar as they purport to constitute
summaries of the terms of statutes, rules or regulations, legal or
governmental proceedings or contracts and other documents,
constitute complete and accurate summaries of the terms of such
statutes, rules and regulations, legal and governmental proceedings
and contracts and other documents in all material
respects.
(aa) No
relationship, direct or indirect, exists between or among the
Company, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company, on the other
hand, that is required to be described in the most recent
Preliminary Prospectus which is not so described.
(bb) No
labor disturbance by the employees of the Company exists or, to the
knowledge of the Company, is imminent that would reasonably be
expected to have a Material Adverse Effect.
(cc) (i)
Each "employee benefit plan" (within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended (" ERISA
")) for which the Company or any member of its
"Controlled Group" (defined as any organization which is a member
of a controlled group of corporations within the meaning of
Section 414 of the Internal Revenue Code of 1986,
as
6
amended (the "
Code ")) would have any
liability (each a " Plan
") has been maintained in compliance with its terms
and with the requirements of all applicable statutes, rules and
regulations including ERISA and the Code; (ii) with respect to
each Plan subject to Title IV of ERISA (a) no "reportable
event" (within the meaning of Section 4043(c) of ERISA) has
occurred or is reasonably expected to occur, (b) no
"accumulated funding deficiency" (within the meaning of
Section 302 of ERISA or Section 412 of the Code), whether
or not waived, has occurred or is reasonably expected to occur,
(c) the fair market value of the assets under each Plan
exceeds the present value of all benefits accrued under such Plan
(determined based on those assumptions used to fund such Plan) and
(d) neither the Company nor any member of its Controlled Group
has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA (other than contributions to the Plan or premiums
to the PBGC in the ordinary course and without default) in respect
of a Plan (including a "multiemployer plan", within the meaning of
Section 4001(c)(3) of ERISA); and (iii) each Plan that is
intended to be qualified under Section 401(a) of the Code has
received a favorable determination letter from the Internal Revenue
Service regarding its tax qualifications, and nothing has occurred,
whether by action or by failure to act, which would cause the loss
of such qualification; except in the case of clauses (i),
(ii) and (iii), as would not reasonably be expected to have a
Material Adverse Effect.
(dd) The
Company has filed all federal, state, local and foreign income and
franchise tax returns required to be filed through the date hereof,
subject to permitted extensions, and has paid all taxes due
thereon, and no tax deficiency has been determined adversely to the
Company, nor does the Company have any knowledge of any tax
deficiencies that would, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(ee) There
are no transfer taxes or other similar fees or charges under
Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and
delivery of this Agreement.
(ff) The
Company (i) is not in violation of its charter or bylaws (or
similar organizational documents), (ii) is not in default, and
no event has occurred that, with notice or lapse of time or both,
would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, license or
other agreement or instrument to which it is a party or by which it
is bound or to which any of its properties or assets is subject or
(iii) is not in violation of any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over it or its property or assets or has failed to
obtain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of
its property or to the conduct of its business, except in the case
of clauses (ii) and (iii), to the extent any such conflict,
breach, violation, failure or default would not, in the aggregate,
reasonably be expected to have a Material Adverse
Effect.
(gg) The
Company (i) makes and keeps accurate books and records and
(ii) has taken reasonable steps to establish and maintain
effective internal control over financial reporting as defined in
Rule 13a-15 under the Exchange Act and a system of internal
accounting controls sufficient to provide reasonable assurance that
(A) transactions are executed in accordance with management's
general or specific authorization, (B) transactions are
recorded as necessary to permit preparation of the Company's
financial statements in conformity with accounting principles
generally accepted in the United States and to maintain
accountability for its assets, (C) access to the Company's
assets is permitted only in accordance with management's general or
specific authorization and (D) the recorded accountability for
the Company's assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
7
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(hh) (i)
The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15 under the
Exchange Act), (ii) such disclosure controls and procedures
are designed to ensure that the information required to be
disclosed by the Company in the reports it will file or submit
under the Exchange Act is accumulated and communicated to
management of the Company, including its principal executive
officers and principal financial officers, as appropriate, to allow
timely decisions regarding required disclosure to be made and
(iii) such disclosure controls and procedures are effective in
all material respects to perform the functions for which they were
established.
(ii) Since
the date of the most recent balance sheet of the Company reviewed
or audited by Ernst & Young LLP and reviewed by the
audit committee of the board of directors of the Company,
(i) the Company has not been advised of (A) any
significant deficiencies in the design or operation of internal
controls that could adversely affect the ability of the Company to
record, process, summarize and report financial data, or any
material weaknesses in internal controls and (B) any fraud,
whether or not material, that involves management or other
employees who have a significant role in the internal controls of
the Company, and (ii) since that date, except as disclosed in
the most recent Preliminary Prospectus, 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.
(jj) As
of the Effective Time, there is and has been no failure on the part
of the Company and any of the Company's directors or officers, in
their capacities as such, to comply with the provisions of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith that are applicable to the
Company as of the date hereof.
(kk) The
section entitled "Management's Discussion and Analysis of Financial
Condition and Results of Operations—Critical Accounting
Policies" in the most recent Preliminary Prospectus accurately and
fully describes the accounting policies that the Company believes
are the most important in the portrayal of the Company's financial
condition and results of operations and that require management's
most difficult, subjective or complex judgments ("
Critical Accounting Policies
").
(ll) The
Company has such permits, licenses, patents, franchises,
certificates of need and other approvals or authorizations of
governmental or regulatory authorities (" Permits ") as are necessary under
applicable law to own its properties and conduct its businesses in
the manner described in the most recent Preliminary Prospectus,
except for any of the foregoing that would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect; the
Company has fulfilled and performed all of its obligations with
respect to the Permits, and no event has occurred that allows, or
after notice or lapse of time would allow, revocation or
termination thereof or results in any other impairment of the
rights of the holder of any such Permits, except for any of the
foregoing that would not reasonably be expected to have a Material
Adverse Effect.
(mm) Without
limiting the generality of clause (ll) above and except as
described in the most recent Preliminary Prospectus and except as
would not, in the aggregate, result in a Material Adverse Effect,
neither the Company, nor the Company's business operations is in
violation of any Health Care Laws. For purposes of this Agreement,
" Health Care Laws " means (i) all federal and state fraud and abuse laws,
including, but not limited to, the federal Anti-Kickback Statute
(42 U.S.C. §1320a-7(b)), the Stark Law (42 U.S.C. §1395nn
and §1395(q)), the Anti-Inducement Law (42 U.S.C.
§ 1320a-7a(a)(5)), the civil False Claims Act (31 U.S.C.
§3729 et seq.), the administrative False Claims Law (42 U.S.C.
§ 1320a-7b(a)), the exclusion laws (42 U.S.C.
§ 1320a-7), the civil monetary penalty laws (42 U.S.C.
§ 1320a-7a) and the regulations promulgated pursuant to
such statutes; (ii) the administrative simplification
provisions of the Health Insurance Portability and Accountability
Act of 1996 (Pub. L. No. 104-191), the regulations
promulgated
8
thereunder and
comparable state privacy and security laws, (iii) Medicare
(Title XVIII of the Social Security Act) and the regulations
promulgated thereunder; (iv) Medicaid (Title XIX of the Social
Security Act) and the regulations promulgated thereunder;
(v) the Medicare Prescription Drug, Improvement, and
Modernization Act of 2003 (Pub. L. No. 108-173) and the
regulations promulgated thereunder; (vi) the federal Food,
Drug, and Cosmetic Act (21 U.S.C. § 301 et seq.) and the
regulations promulgated pursuant thereto; (vii) the Clinical
Laboratory Improvement Amendments of 1988 (Pub. L.
No. 100-578) and the regulations promulgated pursuant thereto;
(viii) quality, safety and accreditation standards and
requirements of all applicable state laws or regulatory bodies; and
(ix) any and all other applicable health care laws,
regulations, manual provisions, policies and administrative
guidance, each of (i) through (ix) as may be amended from
time to time. The Company has not received notice of any claim,
action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action from any governmental authority
alleging that any product, operation or activity is in violation of
any applicable Health Care Law or Permit and has no knowledge that
any such governmental authority is considering any such claim,
litigation, arbitration, action, suit, investigation or proceeding;
and the Company has not received notice, either verbally or in
writing, that any governmental authority has taken, is taking or
intends to take action to limit, suspend, modify or revoke any
Permits and has no knowledge that any such governmental authority
is considering such action, except for any of the foregoing that
would not reasonably be expected to have a Material Adverse
Effect.
(nn) Except
as described in the most recent Preliminary Prospectus, the Company
owns or possesses adequate rights to use all material patents,
patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights,
licenses, know-how, software, systems and technology (including
trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures) necessary for
the conduct of its business as now conducted and has not received
written notice that the conduct of its business as now conducted
conflicts with any such rights of others.
(oo) The
Company (i) is, and at all times prior hereto was, in
compliance with all laws, regulations, ordinances, rules, orders,
judgments, decrees, permits or other legal requirements of any
governmental authority, including without limitation any
international, national, state, provincial, regional, or local
authority, relating to the protection of human health or safety,
the environment, or natural resources, or to hazardous or toxic
substances or wastes, pollutants or contaminants ("
Environmental Laws ")
applicable to such entity, which compliance includes, without
limitation, obtaining, maintaining and complying with all permits
and authorizations and approvals required by Environmental Laws to
conduct their respective businesses, and (ii) have not
received notice of any actual or alleged violation of Environmental
Laws, or of any potential liability for or other obligation
concerning the presence, disposal or release of hazardous or toxic
substances or wastes, pollutants or contaminants, except in the
case of clause (i) or (ii) where such non-compliance,
violation, liability, or other obligation would not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect. Except as described in the most recent Preliminary
Prospectus, (A) there are no proceedings that are pending, or
known by the Company to be contemplated, against the Company under
Environmental Laws in which a governmental authority is also a
party, other than such proceedings regarding which it is reasonably
believed no monetary sanctions of $100,000 or more will be imposed,
(B) the Company is not aware of any material issues regarding
compliance with Environmental Laws, or material liabilities or
other material obligations under Environmental Laws or concerning
hazardous or toxic substances or wastes, pollutants or
contaminants, that could reasonably be expected to have a material
effect on the capital expenditures, earnings or competitive
position of the Company, and (C) the Company does not
anticipate material capital expenditures relating to Environmental
Laws.
9
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(pp) The
Company is not in violation of or has received notice of any
violation with respect to any federal or state law relating to
discrimination in the hiring, promotion or pay of employees, nor
any applicable federal or state wage and hour laws, nor any state
law precluding the denial of credit due to the neighborhood in
which a property is situated, the violation of any of which would
reasonably be expected to have a Material Adverse Affect.
"
(qq) Neither
the Company, nor, to the knowledge of the Company, any director,
officer, agent, employee or other person associated with or acting
on behalf of the Company, has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or
is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(rr) The
operations of the Company are and have been conducted at all times
in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the "
Money Laundering Laws ") and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company with respect to the Money Laundering Laws is pending
or, to the knowledge of the Company, threatened, except, in each
case, as would not reasonably be expected to have a Material
Adverse Effect.
(ss) To
the knowledge of the Company, neither the Company, any director,
officer, agent, employee nor affiliate of the Company is currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department ("
OFAC "); and the
Company will not directly or indirectly use the proceeds of the
offering of the Stock, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered
by OFAC.
(tt) The
Company has not distributed and, prior to the later to occur of any
Delivery Date and completion of the distribution of the Stock, will
not distribute any offering material in connection with the
offering and sale of the Stock other than any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus to
which the Representative has consented in accordance with
Section 1(i) or 6(a)(vi) and any Issuer Free Writing
Prospectus set forth on Schedule 4 hereto.
(uu) The
Company has not taken and will not take, directly or indirectly,
any action designed to or that has constituted or that could
reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Stock.
(vv) The
Stock has been approved for listing on The NASDAQ Global Market.
The Company has taken all necessary actions to ensure that it is in
compliance in all material respects with all applicable corporate
governance requirements set forth in the NASDAQ Marketplace Rules
that are applicable to the Company and to which the Company is
required to comply as of date hereof.
Any certificate
signed by any officer of the Company and delivered to the
Representative or counsel for the Underwriters in connection with
the offering of the Stock pursuant to this Agreement shall be
deemed a representation and warranty by the Company, as to matters
covered thereby, to each Underwriter.
10
2.
Representations,
Warranties and Agreements of the Selling Stockholders.
Each Selling Stockholder,
severally and not jointly, represents, warrants and agrees
that:
-
(a) Neither
the Selling Stockholder nor any person acting on behalf of the
Selling Stockholder (other than, if applicable, the Company and the
Underwriters) has used or referred to any "free writing prospectus"
(as defined in Rule 405), relating to the Stock.
(b) The
Selling Stockholder has, and immediately prior to any Delivery Date
on which the Selling Stockholder is selling shares of Stock, the
Selling Stockholder will have, good and valid title to, or a valid
"security entitlement" within the meaning of Section 8-501 of
the New York Uniform Commercial Code (the " UCC ") in respect of, the shares
of Stock to be sold by the Selling Stockholder hereunder on such
Delivery Date, free and clear of all liens, encumbrances, equities
or claims.
(c) The
Stock to be sold by the Selling Stockholder hereunder which is
represented by the certificates held in custody for the Selling
Stockholder, is subject to the interest of the Underwriters and the
other Selling Stockholders thereunder, the arrangements made by the
Selling Stockholder for such custody are to that extent
irrevocable, and the obligations of the Selling Stockholder
hereunder shall not (except as expressly permitted by this
Agreement) be terminated by any act of the Selling Stockholder, by
operation of law, by the death or incapacity of any individual
Selling Stockholder or, in the case of a trust, by the death or
incapacity of any executor or trustee or the termination of such
trust, or the occurrence of any other event.
(d) Upon
payment for the Stock to be sold by such Selling Stockholder,
delivery of such Stock, as directed by the Underwriters, to
Cede & Co. (" Cede ") or such other nominee as
may be designated by The Depository Trust Company ("
DTC "), registration of
such Stock in the name of Cede or such other nominee and the
crediting of such Stock on the books of DTC to securities accounts
of the Underwriters (assuming that neither DTC nor any such
Underwriter has notice of any adverse claim (within the meaning of
Section 8-105 of the UCC) to such Stock), (i) DTC shall
be a "protected purchaser" of such Stock within the meaning of
Section 8-303 of the UCC, (ii) under Section 8-501
of the UCC, the Underwriters will acquire a valid security
entitlement in respect of such Stock and (iii) no action based
on any "adverse claim," within the meaning of Section 8-102 of
the UCC, to such Stock may be asserted against the Underwriters
with respect to such security entitlement. For purposes of this
representation, such Selling Stockholder may assume that when such
payment, delivery and crediting occur, (A) such Shares will
have been registered in the name of Cede or another nominee
designated by DTC, in each case on the Company's share registry in
accordance with its certificate of incorporation, bylaws and
applicable law, (B) DTC will be registered as a "clearing
corporation" within the meaning of Section 8-102 of the UCC
and (C) appropriate entries to the accounts of the several
Underwriters on the records of DTC will have been made pursuant to
the UCC.
(e) The
Selling Stockholder has placed in custody under a custody agreement
(the " Custody Agreement
" and, together with all other similar agreements
executed by the other Selling Stockholders, the "
Custody Agreements ")
with the Company, as custodian (the " Custodian "), for delivery under
this Agreement, certificates in negotiable form (with signature
guaranteed by a participant in the Securities Transfer Agents
Medallion Program, the New York Stock Exchange Medallion Signature
Program or the Stock Exchange Medallion Program, unless otherwise
agreed by the Representative) representing the shares of Stock to
be sold by the Selling Stockholder hereunder.
(f) The
Selling Stockholder has duly and irrevocably executed and delivered
a power of attorney (the " Power of
Attorney " and, together with all other
similar agreements executed by the other Selling Stockholders, the
" Powers of Attorney
") appointing the Custodian and Dr. Tina Nova
Bennett, and Messrs. Samuel D. Riccitelli and Douglas A.
Schuling as attorneys-in-fact, with full
11
power of substitution,
and with full authority (exercisable by any one or more of them) to
execute and deliver this Agreement and to take such other action as
may be necessary or desirable to carry out the provisions hereof on
behalf of the Selling Stockholder.
(g) The
Selling Stockholder has full right, power and authority, corporate
or otherwise, to enter into this Agreement, the Custody Agreement
and the Power of Attorney.
(h) This
Agreement has been duly and validly authorized, executed and
delivered by or on behalf of the Selling Stockholder.
(i) The
Power of Attorney and the Custody Agreement have been duly and
validly authorized, executed and delivered by or on behalf of the
Selling Stockholder and constitute valid and legally binding
obligations of the Selling Stockholder enforceable against the
Selling Stockholder in accordance with their terms, subject to
(i) the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally,
(ii) general equitable principles (whether considered in a
proceeding in equity or at law) and (iii) an implied covenant
of good faith and fair dealing.
(j) The
execution, delivery and performance of this Agreement, the Custody
Agreement and the Power of Attorney by the Selling Stockholder and
the consummation by the Selling Stockholder of the transactions
contemplated hereby and thereby do not and will not
(i) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, license or
other agreement or instrument to which the Selling Stockholder is a
party or by which the Selling Stockholder is bound or to which any
of the property or assets of the Selling Stockholder is subject,
(ii) result in any violation of the provisions of the charter,
bylaws, partnership agreement, certificate of limited partnership,
limited liability company agreement, operating agreement or
certificate of formation (or similar organizational documents) of
the Selling Stockholder or of the deed or declaration of trust (or
similar organizational documents) of the Selling Stockholder or
(iii) result in any violation of any statute or any order,
rule or regulation of any court or governmental agency or body
having jurisdiction over the Selling Stockholder or the property or
assets of the Selling Stockholder, except in the case of
clauses (i) and (iii) above, any such conflict, breach,
violation or default that would not, individually or in the
aggregate, adversely affect the ability of the Selling Stockholder
to perform its obligations hereunder and under the Custody
Agreement and the Power of Attorney.
(k) No
consent, approval, authorization or order of, or filing or
registration with, any court or governmental agency or body having
jurisdiction over the Selling Stockholder or the property or assets
of the Selling Stockholder is required for the execution, delivery
and performance of this Agreement, the Custody Agreement or the
Power of Attorney by the Selling Stockholder and the consummation
by the Selling Stockholder of the transactions contemplated hereby
and thereby, except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state or foreign securities laws in
connection with the purchase and sale of the Stock by the
Underwriters.
(l) The
Selling Stockholder has no actual knowledge that the
representations and warranties of the Company contained in
Section 1 hereof are not materially true and
correct.
(m) The
Registration Statement did not, as of the Effective Date, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of
the circumstances under which they were made) not misleading;
provided that this paragraph (m) shall apply to the Selling
Stockholder only to the extent that the statements or omissions
from the Registration Statement or the Prospectus were made in
reliance upon and in conformity with written information relating
to
12
the Selling
Stockholder provided by the Selling Stockholder to the Company
expressly and specifically for inclusion therein, it being
understood and agreed that the only such information furnished by
such Selling Stockholder to the Company (the " Selling Stockholder Information ")
consists of the information that appears in the table (and the
corresponding footnotes thereto) under the caption "Principal and
Selling Stockholders" in the Prospectus.
(n) The
Prospectus will not, as of its date and on the applicable Delivery
Date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that this
paragraph (n) shall apply to the Selling Stockholder only to
the extent that the statements or omissions from the Registration
Statement or the Prospectus were made in reliance upon and in
conformity with the Selling Stockholder Information.
(o) The
Pricing Disclosure Package (together with the information included
on Schedule 3 hereto) did not, as of the Applicable Time, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that this paragraph (o) shall
apply to the Selling Stockholder only to the extent that the
statements or omissions from the Registration Statement or the
Prospectus were made in reliance upon and in conformity with the
Selling Stockholder Information.
(p) Each
Issuer Free Writing Prospectus (including, without limitation, any
road show that is a free writing prospectus under Rule 433),
when considered together with the Pricing Disclosure Package
(together with the information included on Schedule 3 hereto) as of the
Applicable Time, did 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 were made, not misleading, except
that the price of the Stock and disclosures directly relating
thereto will be included on the cover page of the Prospectus;
provided that this paragraph (p) shall apply to the Selling
Stockholder only to the extent that the statements or omissions
from each Issuer Free Writing Prospectus were made in reliance upon
and in conformity with the Selling Stockholder
Information.
(q) The
Selling Stockholder is not prompted to sell shares of Stock by any
information concerning the Company that is not set forth in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(r) The
Selling Stockholder has not taken and will not take, directly or
indirectly, any action that is designed to or that has constituted
or that could reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the shares of the
Stock.
(s) The
sale of the Stock by the Selling Stockholder does not violate any
of the Company's internal policies regarding the sale of stock by
its affiliates.
Any certificate
signed by any Selling Stockholder (or an officer or representative
thereof, as such) and delivered to the Representative or counsel
for the Underwriters in connection with the offering of the Stock
shall be deemed a representation and warranty by such
Sel
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