10-K/A 1 j1829_10ka.htm 10-K/A

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

 

WASHINGTON, D.C. 20549

 

FORM 10-K/A

 

AMENDMENT NO. 1

 

FOR ANNUAL AND TRANSITION REPORTS PURSUANT TO
SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the fiscal year ended: December 31, 2002

 

CUBIST PHARMACEUTICALS, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware
(State or Other Jurisdiction of
Incorporation or Organization)

 

22-3192085
(I.R.S. Employer
Identification No.)

 

65 Hayden Avenue, Lexington, MA 02421

(Address of Principal Executive Offices and Zip Code)

 

(781) 860-8660

(Registrant’s telephone number, including area code)

 

Securities registered pursuant to Section 12(b) of the Act:

None

 

Securities registered pursuant to Section 12(g) of the Act:

 

Common Stock, $0.001 Par Value

Series A Junior Participating Preferred Stock Purchase Rights

 

(Title of Each Class)

 

Nasdaq National Market

 

(Name of Each Exchange on Which Registered)

 

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934, or the Securities Exchange Act, during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ý  No o

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-X is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o

 

Indicate by check mark whether the registrant is an accelerated filer (as defined in Exchange Act Rule 12b-2). Yes ý  No o

 

The aggregate market value of the registrant’s common stock, $0.001 par value per share, held by non-affiliates of the registrant as of June 28, 2002 was approximately $264,794,266, based on 28,139,667 shares held by such non-affiliates at the closing price of a share of common stock of $9.41 as reported on the Nasdaq National Market on such date. The number of outstanding shares of common stock of Cubist on March 14, 2003 was 29,594,196.

 

 

 

Explanatory Note

 

The Registrant is filing this Amendment No.1 to its Annual Report on Form 10-K to amend Item 15 and to revise Exhibits 10.59 and 10.67 in response to comments we received from the Securities and Exchange Commission relating to our request for confidential treatment of certain information contained in such exhibits.  This report amends Item 15 to reflect the filing of the revised exhibits with this report and also revises such exhibits to disclose additional portions of such exhibits that we previously had redacted.

 

Except as noted herein, the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2002 remains as originally filed with the Securities and Exchange Commission on March 28, 2003. All information in this Amendment No. 1 is as of December 31, 2002 and does not reflect any subsequent information or events other than the changes referred to above.

 

 

PART IV

 

ITEM 15.               EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K

 

(A)  Documents Filed As Part Of Form 10-K

 

1.      Financial Statements.

 

The following financial statements and supplementary data are included in Part II Item 8 filed as part of this report:

 

•                  Report of Independent Accountants

 

•                  Balance Sheets as of December 31, 2002 and 2001

 

•                  Statements of Operations for the years ended December 31, 2002, 2001 and 2000

 

•                  Statements of Cash Flows for the years ended December 31, 2002, 2001 and 2000

 

•                  Statements of Stockholders’ Equity (Deficit) for the years ended December 31, 2002, 2001 and 2000

 

•                  Notes to Financial Statements

 

2.      Financial Statement Schedule

 

None.

 

Schedules not listed above have been omitted because they are not applicable, not required or the information required is shown in the financial statements or the notes thereto.

 

3.      List of Exhibits

 

3.1

 

Restated Certificate of Incorporation of Cubist (incorporated by reference to Exhibit 3 to Cubist’s Quarterly Report on Form 10-Q filed on August 12, 1999) (File no. 000-21379)

3.2

 

Amended and Restated By-Laws of Cubist, as amended to date. (Exhibit 3.4, Registration No. 333-6795)

4.1

 

Specimen certificate for shares of common stock (Exhibit 4.1, Annual Report on Form 10-K, filed March 28, 2002)

4.3

 

Rights Agreement, dated as of July 21, 1999 between Cubist and BankBoston, N.A. as Rights Agent (incorporated by reference to Exhibit 99.1 to Cubist’s Report on Form 8-K filed on July 30, 1999) (File No. 000-21379)

4.4

 

First Amendment dated as of March 7, 2000 to the Rights Agreement, dated as of July 21, 1999 between Cubist and Fleet National Bank f/k/a BankBoston, N.A. as Rights Agent (incorporated by reference to Exhibit 4.2 to Cubist’s Registration Statement on Form 8-A/A filed on March 9, 2000) (File No. 000-21379)

10.1

 

Employment Agreement between Cubist and Scott M. Rocklage, dated June 20, 1994. (Exhibit 10.3, Registration No. 333-6795)

x10.1

 

Amended and Restated 1993 Stock Option Plan. (Exhibit 10.6, Registration No.333-6795)

10.2

 

Lease Agreement between Cubist and Stimpson Family Trust, dated April 30, 1993, regarding 24 Emily Street, Cambridge, MA., as amended by the First Amendment to Lease, dated September 19, 1994. (Exhibit 10.13, Registration No.333-6795)

10.3

 

Amended and Restated Stockholders Rights Agreement by and among Cubist and the parties signatory thereto. (Exhibit 10.20, Registration No. 333-6795)

10.4

 

Master Lease Agreement between Cubist and Transamerica Business Credit, dated as of February 14, 1997. (Exhibit 10.33, Annual Report on Form 10-K, filed March 20, 1998, File No. 000-21379)

 

3

 

†10.5

 

License Agreement, dated November 7, 1997, between Cubist and Eli Lilly. (Exhibit 10.3, Amendment to Quarterly Report on Form 10-Q/A, filed October 22, 1998, File No. 000-21379)

x10.6

 

First Amendment to Amended and Restated 1993 Stock Option Plan (Exhibit 10.3, Quarterly Report on Form 10-Q, filed August 12, 1998, File No. 000-21379)

x10.7

 

1997 Employee Stock Purchase Plan. (Exhibit 10.4, Quarterly Report on Form 10-Q, filed August 12, 1998, File No. 000-21379)

10.8

 

Registration Rights Agreement, dated as of September 10, 1998 between Cubist and each person listed on Exhibit A thereto (Exhibit 10.2, Quarterly Report on Form 10-Q, filed November 4, 1998, File No. 000-21379)

10.9

 

Common stock Purchase Warrants, dated September 23, 1998, executed by Cubist (Exhibit 10.3, Quarterly Report on Form 10-Q, filed November 4, 1998, File No. 000-21379)

10.10

 

Collaborative Research and License Agreement between Cubist and Novartis Pharma AG, dated as of February 3, 1999 (Exhibit 10.1, Quarterly Report on Form 10-Q, filed May 13, 1999, File No. 000-21379)

10.11

 

Stock Purchase Agreement between Cubist and Novartis Pharma AG, dated as of February 3, 1999 (Exhibit 10.2, Quarterly Report on Form 10-Q, filed May 13, 1999, File No. 000-21379)

x10.12

 

Second Amendment to Amended and Restated 1993 Stock Option Plan (Exhibit 10.41, Annual Report on Form 10-K, filed March 10, 2000, File No. 000-21379)

x10.13

 

Third Amendment to Amended and Restated 1993 Stock Option Plan (Exhibit 10.42, Annual Report on Form 10-K, filed March 10, 2000, File No. 000-21379)

†10.14

 

Manufacturing and Supply Agreement, entered into as of June 22, 2000, by and between Cubist and DSM Capua S.p.A (Exhibit 10.1, Quarterly Report on Form 10-Q, filed August 14, 2000, File No. 000-21379)

†10.15

 

Services Agreement, entered into as of June 22, 2000, by and between Cubist and Gist-brocades Holding A.G. (Exhibit 10.2, Quarterly Report on Form 10-Q, filed August 14, 2000, File No. 000-21379)

†10.16

 

Development and Supply Agreement, dated April 3, 2000, by and between Cubist and Abbott Laboratories (Exhibit 10.3, Quarterly Report on Form 10-Q, filed August 14, 2000, File No. 000-21379)

†10.17

 

Clinical Services Master Agreement, dated December 1, 1999, by and between Cubist and Omnicare Clinical Research, Inc. f/k/a IBAH, Inc. (Exhibit 10.49, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.18

 

Exhibit A to the Clinical Services Master Agreement, dated December 21, 2000, by and between Cubist and Omnicare Clinical Research, Inc. f/k/a IBAH, Inc. (Exhibit 10.50, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.19

 

Exhibit B to the Clinical Services Master Agreement, dated April 12, 2000, by and between Cubist and Omnicare Clinical Research, Inc. f/k/a IBAH, Inc. (Exhibit 10.51, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.20

 

Exhibit C to the Clinical Services Master Agreement, dated April 18, 2000, by and between Cubist and Omnicare Clinical Research, Inc. f/k/a IBAH, Inc. (Exhibit 10.52, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.21

 

Exhibit D to the Clinical Services Master Agreement, dated May 10, 2000, by and between Cubist and Omnicare Clinical Research, Inc. f/k/a IBAH, Inc. (Exhibit 10.53, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.22

 

Exhibit E to the Clinical Services Master Agreement, dated October 17, 2000, by and between Cubist and Omnicare Clinical Research, Inc. f/k/a IBAH, Inc. (Exhibit 10.54, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.23

 

Contract of Monitoring Services, dated January 10, 2000, between Cubist and Clindev (Proprietary) Limited (Exhibit 10.55, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.24

 

First Amendment to Contract of Monitoring Services, dated June 22, 2000, between Cubist and Clindev (Proprietary) Limited (Exhibit 10.56, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.25

 

Second Amendment to Contract of Monitoring Services, dated December 20, 2000, between Cubist and Clindev (Proprietary) Limited (Exhibit 10.57, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.26

 

Contract Research Agreement, dated as of August 1, 2000, by and between Target Research

 

4

 

 

 

Associates, Inc. and Cubist (Exhibit 10.58, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.27

 

Assignment and License Agreement, dated October 6, 2000, by and between Eli Lilly & Company and Cubist (Exhibit 10.59, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.28

 

Note Purchase Agreement, dated September 8, 2000, by and between Cubist and the Purchasers listed on Schedule 1 thereto (Exhibit 10.60, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.29

 

Registration Rights Agreement, dated as of September 8, 2000, by and between John Hancock Life Insurance Company, John Hancock Variable Life Insurance Company, Signature 4 Limited, Investors Partner Life Insurance Company and Cubist (Exhibit 10.61, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.30

 

Senior Convertible Promissory Note R-1, dated September 8, 2000, by and between Cubist and John Hancock Life Insurance Company (Exhibit 10.62, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.31

 

Senior Convertible Promissory Note R-2, dated September 8, 2000, by and between Cubist and John Hancock Life Insurance Company (Exhibit 10.63, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.32

 

Senior Convertible Promissory Note R-3, dated September 8, 2000, by and between Cubist and John Hancock Life Insurance Company (Exhibit 10.64, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.33

 

Senior Convertible Promissory Note R-4, dated September 8, 2000, by and between Cubist and John Hancock Variable Life Insurance Company (Exhibit 10.65, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.34

 

Senior Convertible Promissory Note R-5, dated September 8, 2000, by and between Cubist and Hare & Co. (Exhibit 10.66, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.35

 

Senior Convertible Promissory Note R-6, dated September 8, 2000, by and between Cubist and Investors Partner Life Insurance Company (Exhibit 10.67, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.36

 

Research & Development Collaboration and Option Agreement, dated as of October 4, 2000, by and between Cubist and Emisphere Technologies, Inc. (Exhibit 10.68, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.37

 

License Agreement, dated as of November 22, 2000, by and between Cubist and International Health Management Associates, Inc. (Exhibit 10.69, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.38

 

Patent Cross-License Agreement, dated as of November 18, 1999, by and between TerraGen Discovery Inc. and Diversa Corporation (Exhibit 10.70, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

10.39

 

Fourth Amendment to Amended and Restated 1993 Stock Option Plan (Exhibit 10.73, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

10.40

 

Fifth Amendment to Amended and Restated 1993 Stock Option Plan (Exhibit 10.74, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

10.41

 

Sixth Amendment to Amended and Restated 1993 Stock Option Plan (Exhibit 10.75, Annual Report on Form 10-K, filed April 2, 2001, File No. 000-21379)

†10.42

 

Marketing, Distribution and Development Agreement by and between Cubist and Gilead Sciences, Inc., dated as of January 6, 2001 (Exhibit 10.1, Quarterly Report on Form 10-Q, filed May 15, 2001, File No. 000-21379)

10.43

 

Master Services Agreement by and between Cubist and Quintiles, Inc., dated as of April 25, 2001 (Exhibit 10.1, Quarterly Report on Form 10-Q, filed August 14, 2001, File No. 000-21379)

†10.44

 

Work Order 1 by and between Cubist and Quintiles, Inc., dated as of June 7, 2001 (Exhibit 10.2, Quarterly Report on Form 10-Q, filed August 14, 2001, File No. 000-21379)

†10.45

 

Collaboration Agreement by and between Cubist and Syrrx, Inc., dated as of June 27, 2001 (Exhibit 10.3, Quarterly Report on Form 10-Q, filed August 14, 2001, File No. 000-21379)

†10.46

 

Agreement by and between Cubist and Albany Molecular Research, Inc., dated as of July 30, 2001 (Exhibit 10.1, Quarterly Report on Form 10-Q, filed November 14, 2001, File No. 000-21379)

10.47

 

Indenture by and between Cubist and The Bank of New York, dated as of October 26, 2001 (Exhibit 10.2, Quarterly Report on Form 10-Q, filed November 14, 2001, File No. 000-21379)

 

5

 

10.48

 

Note, dated October 26, 2001 (Exhibit 10.3, Quarterly Report on Form 10-Q, filed November 14, 2001, File No. 000-21379)

10.49

 

Registration Rights Agreement by and among Cubist and the Initial Purchasers, dated as of October 26, 2001 (Exhibit 10.4, Quarterly Report on Form 10-Q, filed November 14, 2001, File No. 000-21379)

10.50

 

Purchase and Sale Agreement, by and between Spaulding and Slye Hayden Woods LLC and Cubist, dated as of July 28, 2000 (Exhibit 10.61, Annual Report on Form 10-K, filed March 29, 2002, File No. 000-21379)

10.51

 

Seventh Amendment to Amended and Restated 1993 Stock Option Plan (Exhibit 10.62, Annual Report on Form 10-K, filed March 29, 2002, File No. 000-21379)

†10.52

 

Manufacturing and Supply Agreement, dated as of September 30, 2001, by and between Cubist and ACS Dobfar S.p.A. (Exhibit 10.63, Annual Report on Form 10-K, filed March 29, 2002, File No. 000-21379)

†10.53

 

Screening Service Agreement, dated as of December 7, 2001, by and between Cubist and Cetek Corporation (Exhibit 10.64, Annual Report on Form 10-K, filed March 29, 2002, File No. 000-21379)

†10.54

 

License Agreement, dated as of December 27, 2001, by and between Cubist and the University of Utah (Exhibit 10.65, Annual Report on Form 10-K, filed March 29, 2002, File No. 000-21379)

†10.55

 

First Amendment to Collaborative Research and License Agreement, dated as of February 4, 2002, by and between Cubist and Novartis Pharma AG (Exhibit 10.66, Annual Report on Form 10-K, filed March 29, 2002, File No. 000-21379)

x10.56

 

Amended and Restated 2000 Equity Incentive Plan (Exhibit 10.1, Quarterly Report on Form 10-Q, filed August 8, 2002, File No. 000-21379)

x10.57

 

2002 Directors’ Stock Option Plan (Exhibit 10.2, Quarterly Report on Form 10-Q, filed August 8, 2002, File No. 000-21379)

†10.58

 

License Agreement, dated as of July 31, 2002, by and between Cubist and Biochemie GmbH (Exhibit 10.3, Quarterly Report on Form 10-Q, filed August 8, 2002, File No. 000-21379)

†*10.59

 

First Addendum to License Agreement between International Health Management Associates, Inc. and Cubist, dated as of September 27, 2002

x10.60

 

Retention Letter, dated as of January 20, 2003, by and between Cubist and Michael W. Bonney

x10.61

 

Retention Letter, dated as of January 20, 2003, by and between Cubist and Francis Tally, M.D.

x10.62

 

Retention Letter, dated as of January 20, 2003, by and between Cubist and Barry I. Eisenstein, M.D.

x10.63

 

Retention Letter, dated as of January 20, 2003, by and between Cubist and Oliver Fetzer, Ph.D.

x10.64

 

Retention Letter, dated as of January 20, 2003, by and between Cubist and David W.J. McGirr

x10.65

 

Retention Letter, dated as of January 20, 2003, by and between Cubist and Christopher D.T. Guiffre

x10.66

 

Transition Agreement, dated Feburary 25, 2003, between the Company and Scott M. Rocklage

†*10.67

 

Second Amendment to Manufacturing and Supply Agreement, dated as of February 12, 2003, by and between Cubist and ACS Dobfar S.p.A.

10.68

 

Counterpart Agreement to Lease, dated February 20, 2002, between Slough Trading Estate Limited and Cubist Pharmaceuticals (UK) Limited and Cubist

10.69

 

Form of Employee Confidentiality Agreement

10.70

 

2002 Stock in Lieu of Cash Compensation Plan

23.1

 

Consent of PricewaterhouseCoopers LLP

99.1

 

Certification pursuant to 18 U.S.C Section 1305, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

99.2

 

Certification pursuant to 18 U.S.C Section 1305, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

99.3

 

Amended and Restated Audit Committee Charter

99.4

 

Compensation Committee Charter

99.5

 

Corporate Governance Committee Charter

99.6

 

Amended and Restated Corporate Governance Guidelines

99.7

 

Code of Conduct and Ethics

 

*                 Filed herewith (all other exhibits not so marked were previously filed as indicated or on March 28, 2003 with the Annual Report on Form 10-K).

 

6

 

†                  Confidential Treatment granted.

 

x                   Management contract or compensatory plan or arrangement required to be filed as an exhibit to the Annual Report on Form 10-K.

 

(B)        Current Reports on Form 8-K

 

There were no Current Reports on Form 8-K during the fourth quarter.

 

7

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act, the registrant has duly caused this amendment to be signed on its behalf by the undersigned, thereunto duly authorized.

 

Dated: June 6, 2003

CUBIST PHARMACEUTICALS, INC.

 

 

 

 

 

By:

/s/ SCOTT M. ROCKLAGE

 

 

 

Scott M. Rocklage

 

 

 

Chairman and Chief Executive Officer

 

 

 

8

 

CERTIFICATION

 

I, Scott M. Rocklage, Chairman and Chief Executive Officer of Cubist Pharmaceuticals, Inc., certify that:

 

1.               I have reviewed this Annual Report on Form 10-K/A of Cubist Pharmaceuticals, Inc.;

 

2.               Based on my knowledge, this Annual Report on Form 10-K/A does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;

 

3.               Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report;

 

4.               The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:

 

a)              Designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;

 

b)             Evaluated the effectiveness of the registrant’s disclosure controls and procedures as of a date within 90 days prior to the filing date of this annual report (the “Evaluation Date”); and

 

c)              Presented in this annual report our conclusions about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date;

 

5.               The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent function):

 

a)              All significant deficiencies in the design or operation of internal controls which could adversely affect the registrant’s ability to record, process, summarize and report financial data and have identified for the registrant’s auditors 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 registrant’s internal controls; and

 

6.               The registrant’s other certifying officers and I have indicated in this annual report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses.

 

 

Date: June 6, 2003

 

 

/s/ SCOTT M. ROCKLAGE

 

 

Scott M. Rocklage

 

Chairman and Chief Executive Officer

 

 

CERTIFICATION

 

I, David W.J. McGirr, Senior Vice President and Chief Financial Officer of Cubist Pharmaceuticals, Inc., certify that:

 

1.               I have reviewed this Annual Report on Form 10-K/A of Cubist Pharmaceuticals, Inc.;

 

2.               Based on my knowledge, this Annual Report on Form 10-K/A does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;

 

3.               Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report;

 

4.               The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:

 

a)              Designed such disclosure controls and procedures to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;

 

b)             Evaluated the effectiveness of the registrant’s disclosure controls and procedures as of a date within 90 days prior to the filing date of this annual report (the “Evaluation Date”) and

 

c)              Presented in this annual report our conclusion about the effectiveness of the disclosure controls and procedures based on our evaluation as of the Evaluation Date;

 

5.               The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent function):

 

a)              All significant deficiencies in the design or operation of internal controls which could adversely affect the registrant’s ability to record, process, summarize and report financial data and have identified for the registrant’s auditors 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 registrant’s internal controls; and

 

6.               The registrant’s other certifying officers and I have indicated in this annual report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of our most recent evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses.

 

 

Date: June 6, 2003

 

 

/s/ DAVID W.J. MCGIRR

 

 

David W.J. McGirr

 

Senior Vice President and Chief Financial Officer