According to the Company’s FORM 10-Q For The Quarterly Period Ended September 30, 2005, on June 30, 2003, the Company’s board of directors approved a proposed settlement for this matter, which is part of a larger global settlement between the issuers and plaintiffs. The acceptance of the settlement by the plaintiffs is contingent on a number of factors, including the percentage of issuers who approve the proposed settlement. The Company has agreed to undertake other responsibilities under the proposed settlement, including agreeing to assign away, not assert or release certain potential claims the Company may have against its underwriters. Any direct financial impact of the proposed settlement is expected to be borne by the Company’s insurers. On February 15, 2005, the Court issued an order preliminarily approving the proposed settlement and scheduling a “fairness” hearing to determine whether to finally approve the settlement.
As summarized by the same SEC filing, in July 2001, the Company, along with Merrill Lynch, Pierce, Fenner & Smith, Bear Stearns and FleetBoston Robertson Stephens (certain of the underwriters of the Company’s initial public offering (IPO)), as well as the Company’s chairman and chief executive officer, Robert Zollars, and its former chief financial officer, Frederick Ruegsegger, were named as defendants in two securities class action lawsuits filed in federal court in the Southern District of New York (No. 01 CV 6689 and No. 01 CV 6712) on behalf of those who purchased shares of the Company’s common stock from January 24, 2000 to December 6, 2000. These actions have since been consolidated, and a consolidated amended complaint was filed in the Southern District of New York on April 24, 2002. Approximately 300 other issuers and their underwriters have had similar suits filed against them, all of which are included in a single coordinated proceeding in the Southern District of New York. On July 1, 2002, the underwriter defendants moved to dismiss all of the IPO allocation litigation complaints against them, including the action involving the Company. On July 15, 2002, the Company, along with the other non-underwriter defendants in the coordinated cases, also moved to dismiss the litigation. Those motions were fully briefed on September 13 and September 27, 2002, respectively, and in February 2003, the Court denied the Company’s motion to dismiss. On October 9, 2002, all of the individual defendants, including Messrs. Zollars and Ruegsegger, were dismissed from the action without prejudice.
The complaint alleges violations of Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. On or about January 24, 2000, Neoforma.com commenced an initial public offering of 7,000,000 of its shares of common stock at an offering price of $13 per share (the ``Neoforma.com IPO''). In connection therewith, Neoforma.com filed a registration statement, which incorporated a prospectus (the ``Prospectus''), with the SEC. The complaint further alleges that the Prospectus was materially false and misleading because it failed to disclose, among other things, that: (i) Merrill Lynch, Bear Stearns and Robertson Stephens had solicited and received excessive and undisclosed commissions from certain investors in exchange for which Merrill Lynch, Bear Stearns and Robertson Stephens allocated to those investors material portions of the restricted number of Neoforma.com shares issued in connection with the Neoforma.com IPO; and (ii) Merrill Lynch, Bear Stearns and Robertson Stephens had entered into agreements with customers whereby Merrill Lynch, Bear Stearns and Robertson Stephens agreed to allocate Neoforma.com shares to those customers in the Neoforma.com IPO in exchange for which the customers agreed to purchase additional Neoforma.com shares in the aftermarket at pre-determined prices. As alleged in the complaint, the SEC is investigating underwriting practices in connection with several other initial public offerings.