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8-K - INSULET CORPORATION - INSULET CORP | b83447e8vk.htm |
EX-5.1 - EX-5.1 OPINION OF GOODWIN PROCTER LLP - INSULET CORP | b83447exv5w1.htm |
EX-99.1 - EX-99.1 PRESS RELEASE - INSULET CORP | b83447exv99w1.htm |
Exhibit 1.1
Insulet Corporation
3,000,000 Shares
Common Stock
($0.001 par value)
Underwriting Agreement
This Underwriting Agreement (the Agreement) contains representations and warranties that the
Underwriter (Underwriter) and Insulet Corporation (Insulet) made to each other. These
representations and warranties were made only for the purposes of the signing of the Agreement and
solely for the benefit of the Underwriter and Insulet as of specific dates, may be subject to
important limitations and qualifications agreed to by the Underwriter and Insulet in connection
with the signing of the Agreement, and may not be complete. Furthermore, these representations and
warranties may have been made for the purposes of allocating contractual risk between the
Underwriter and Insulet instead of establishing these matters as facts, and may or may not have
been accurate as of any specific date and do not purport to be accurate as of the date of the
filing of the Agreement by Insulet with the Securities and Exchange Commission. Accordingly, you
should not rely upon the representations and warranties contained in the Agreement as
characterizations of the actual state of facts, since they were intended to be for the benefit of,
and to be limited to, the Underwriter and Insulet.
Underwriting Agreement
December 7, 2010
Canaccord Genuity Inc.
99 High Street, 11th Floor
Boston, Massachusetts 02110
99 High Street, 11th Floor
Boston, Massachusetts 02110
Ladies and Gentlemen:
Insulet Corporation, a Delaware corporation (the Company), proposes to issue and sell to
Canaccord Genuity Inc. (the Underwriter), an aggregate of 3,000,000 shares of common stock, par
value $0.001 per share, of the Company (the Underwritten Shares) and, at the option of the
Underwriter, up to an additional 450,000 shares of common stock of the Company (the Option
Shares). The Underwritten Shares and the Option Shares are herein referred to as the Shares.
The shares of common stock of the Company to be outstanding after giving effect to the sale of the
Shares are referred to herein as the Stock.
The Company hereby confirms its agreement with the Underwriter concerning the purchase and
sale of the Shares, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the Commission) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the Securities Act), a registration
statement on Form S-3 (File No. 333-158354), including a prospectus (the Base Prospectus),
relating to securities to be issued from time to time by the Company. The term Registration
Statement means the registration statement, as amended at the time it became effective, including
the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be
part of the registration statement at the time of its effectiveness (Rule 430 Information). The
term Prospectus Supplement means the final prospectus supplement, relating to the Shares, filed
by the Company with the Commission pursuant to Rule 424(b) under the Securities Act on or before
the second business day after the date hereof (or such earlier time as may be required under the
Securities Act), in the form furnished by the Company to the Underwriter and by dealers in
connection with the offering of the Shares. The term Prospectus means the Base Prospectus as
supplemented by the Prospectus Supplement specifically relating to the Shares in the form first
used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act)
in connection with confirmation of sales of the Shares. The term Issuer Free Writing
Prospectuses means the documents listed on Annex B hereto. The term Pricing Disclosure Package
means the Base Prospectus, together with the Issuer Free Writing Prospectuses, if any, and the
information set forth on Annex C attached hereto, taken as a whole.
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Any reference in this Agreement to the Registration Statement, Base Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the
Registration Statement or the date of such Base Prospectus or the Prospectus, as the case may be,
and any reference to amend, amendment or supplement with respect to the Registration
Statement, Base Prospectus or the Prospectus shall be deemed to refer to and include any documents
filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (collectively, the Exchange Act) that are deemed to be
incorporated by reference therein. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below), the Company had prepared the following
information (collectively with the pricing information referred to in the next succeeding sentence,
the Pricing Disclosure Package): the Base Prospectus and each free-writing prospectus (as
defined pursuant to Rule 405 under the Securities Act) listed on Annex B hereto as constituting
part of the Pricing Disclosure Package.
Applicable Time means 5:45 P.M., Boston time, on December 7, 2010.
2. Purchase of the Shares by the Underwriter.
(a) The Company agrees to issue and sell the Underwritten Shares to the Underwriter as
provided in this Agreement, and the Underwriter, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein, agrees to purchase
from the Company the number of Underwritten Shares set forth opposite the Underwriters name in
Schedule 1 hereto at a price per share (the Purchase Price) of $13.266.
In addition, the Company agrees to issue and sell the Option Shares to the Underwriter as
provided in this Agreement, and the Underwriter, on the basis of the representations, warranties
and agreements set forth herein and subject to the conditions set forth herein, shall have the
option to purchase from the Company the Option Shares at the Purchase Price less an amount per
share equal to any dividends or distributions declared by the Company and payable on the
Underwritten Shares but not payable on the Option Shares.
The Underwriter may exercise the option to purchase Option Shares at any time in whole, or
from time to time in part, on or before the thirtieth day following the date of the Prospectus, by
written notice from the Underwriter to the Company. Such notice shall set forth the aggregate
number of Option Shares as to which the option is being exercised and the date and time when the
Option Shares are to be delivered and paid for, which may be the same date and time as the Closing
Date (as hereinafter defined) but shall not be earlier than the Closing Date or later than the
tenth full business day (as hereinafter defined) after the date of such notice. Any such notice
shall be given at least two business days prior to the date and time of delivery specified therein.
(b) The Company understands that the Underwriter intends to make a public offering of the
Shares as soon after the effectiveness of this Agreement as in the judgment of the Underwriter is
advisable, and initially to offer the Shares on the terms set forth in the Prospectus. The Company
acknowledges and agrees that the Underwriter may offer and sell Shares to or through any affiliate
of an Underwriter.
(c) Payment for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Underwriter in the case of the Underwritten Shares, at
the
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offices of Choate, Hall & Stewart LLP at 10:00 A.M., Boston time, on December 13, 2010, or at
such other time or place on the same or such other date, not later than the fifth business day
thereafter, as the Underwriter and the Company may agree upon in writing, or, in the case of the
Option Shares, on the date and at the time and place specified by the Underwriter in the written
notice of the Underwriters election to purchase such Option Shares. The time and date of such
payment for the Underwritten Shares is referred to herein as the Closing Date, and the time and
date for such payment for the Option Shares, if other than the Closing Date, is herein referred to
as the Additional Closing Date.
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery to the Underwriter of the Shares to be purchased on
the Closing Date or the Additional Closing Date, as the case may be, with any transfer taxes
payable in connection with the sale of such Shares duly paid by the Company. Delivery of the
Shares shall be made through the facilities of The Depository Trust Company (DTC) unless the
Underwriter shall otherwise instruct. The certificates for the Shares will be made available for
inspection and packaging by the Underwriter at the office of DTC or its designated custodian not
later than 1:00 P.M., Boston time, on the business day prior to the Closing Date or the Additional
Closing Date, as the case may be.
(d) The Company acknowledges and agrees that the Underwriter is acting solely in the capacity
of an arms length contractual counterparty to the Company with respect to the offering of Shares
contemplated hereby (including in connection with determining the terms of the offering) and not as
a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, the Underwriter is not advising the Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with
its own advisors concerning such matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and the Underwriter shall have
no responsibility or liability to the Company with respect thereto. Any review by the Underwriter
of the Company, the transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriter and shall not be on behalf of the
Company.
3. Representations and Warranties of the Company. The Company represents and warrants
to the Underwriter that:
(a) Effectiveness. The Registration Statement has heretofore become effective under
the Securities Act; no stop order of the Commission preventing or suspending the use of the
Base Prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing
Prospectus, or the effectiveness of the Registration Statement, has been issued, and no
proceedings for such purpose have been instituted or, to the Companys knowledge, are
threatened by the Commission.
(b) Registration Statement and Prospectus. The Registration Statement complied when it
became effective, complies as of the date hereof and, as amended or supplemented, as of the
Closing Date and the Additional Closing Date, as the case may be, and at all times during
which a prospectus is required by the Securities Act to be delivered (whether physically or
through compliance with Rule 172 under the Securities Act or any similar rule) in connection
with any sale of Shares, will comply, in all material respects, with the requirements of the
Securities Act; the conditions to the use of Form S-3 in connection with the offering and
sale of the Shares as contemplated hereby have been satisfied; the Registration Statement
meets, and the offering and sale of the Shares as contemplated hereby complies with, the
requirements of Rule 415 under the Securities Act; the Registration Statement did not, as of
the Effective Time, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements
therein not misleading; the Base Prospectus complied as of its date and the date it was
filed with the Commission, complies as of the date
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hereof and, as of the Closing Date and the Additional Closing Date, as the case may be,
and at all times during which a prospectus is required by the Securities Act to be delivered
(whether physically or through compliance with Rule 172 under the Securities Act or any
similar rule) in connection with any sale of Shares, will comply, in all material respects,
with the requirements of the Securities Act; the Disclosure Package does not include an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading; each of the Prospectus Supplement and the Prospectus will comply, as of the
date that it is filed with the Commission, the date of the Prospectus Supplement, the
Closing Date and the Additional Closing Date, as the case may be, and at all times during
which a prospectus is required by the Securities Act to be delivered (whether physically or
through compliance with Rule 172 under the Securities Act or any similar rule) in connection
with any sale of Shares, in all material respects, with the requirements of the Securities
Act (in the case of the Prospectus, including, without limitation, Section 10(a) of the
Securities Act); at no time during the period that begins on the earlier of the date of the
Prospectus Supplement and the date the Prospectus Supplement is filed with the Commission
and ends at the later of the Closing Date and the Additional Closing Date, as the case may
be, and the end of the period during which a prospectus is required by the Securities Act to
be delivered (whether physically or through compliance with Rule 172 under the Securities
Act or any similar rule) in connection with any sale of Shares did or will any Prospectus
Supplement or the Prospectus, as then amended or supplemented, include an untrue statement
of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; each Issuer Free Writing Prospectus does not conflict with the information
contained in the Registration Statement, the Disclosure Package or the Prospectus, and at no
time during the period that begins on the date of such Issuer Free Writing Prospectus and
ends at the Closing Date and the Additional Closing Date, as the case may be, did or will
any Issuer Free Writing Prospectus include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the
Company makes no representation or warranty in this Section 3(b) with respect to any
statement contained in the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus in reliance upon and in conformity with information concerning the Underwriter
and furnished in writing by or on behalf of the Underwriter to the Company expressly for use
in the Registration Statement, the Prospectus or such Issuer Free Writing Prospectus.
(c) Free Writing Prospectuses. Prior to the execution of this Agreement, the Company
has not, directly or indirectly, offered or sold any Shares by means of any prospectus
(within the meaning of the Securities Act) or used any prospectus (within the meaning of
the Securities Act) in connection with the offer or sale of the Shares, in each case other
than the Base Prospectus and the Issuer Free Writing Prospectuses, if any; the Company has
not, directly or indirectly, prepared, used or referred to any Issuer Free Writing
Prospectus except in compliance with Rules 164 and 433 under the Securities Act; assuming
that such Issuer Free Writing Prospectus is so sent or given after the Registration
Statement was filed with the Commission (and after such Issuer Free Writing Prospectus was,
if required pursuant to Rule 433(d) under the Securities Act, filed with the Commission),
the sending or giving, by any Underwriter, of any Issuer Free Writing Prospectus will
satisfy the provisions of Rule 164 and Rule 433 (without reliance on subsections (b), (c)
and (d) of Rule 164); the conditions set forth in one or more of subclauses (i) through
(iv), inclusive, of Rule 433(b)(1) under the Securities Act are satisfied, and the
registration statement relating to the offering of the Shares contemplated hereby, as
initially filed with the Commission, includes a prospectus that, other than by reason of
Rule 433 or Rule
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431 under the Securities Act, satisfies the requirements of Section 10 of the
Securities Act; neither the Company nor the Underwriter is disqualified, by reason of
subsection (f) or (g) of Rule 164 under the Securities Act, from using, in connection with
the offer and sale of the Shares, free writing prospectuses (as defined in Rule 405 under
the Securities Act) pursuant to Rules 164 and 433 under the Securities Act; the Company is
not an ineligible issuer (as defined in Rule 405 under the Securities Act) as of the
eligibility determination date for purposes of Rules 164 and 433 under the Securities Act
with respect to the offering of the Shares contemplated by the Registration Statement.
(d) [Intentionally omitted.]
(e) Incorporated Documents. The documents incorporated by reference in the
Registration Statement, the Prospectus and the Pricing Disclosure Package, when they were
filed with the Commission conformed in all material respects to the requirements of the
Exchange Act, and none of such documents contained any untrue statement of a material fact
or omitted to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and any further documents
so filed and incorporated by reference in the Registration Statement, the Prospectus or the
Pricing Disclosure Package, when such documents are filed with the Commission, will conform
in all material respects to the requirements of the Exchange Act and will not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading.
(f) Financial Statements. The financial statements (including the related notes
thereto) of the Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus
comply in all material respects with the applicable requirements of the Securities Act and
the Exchange Act, as applicable, and present fairly the financial position of the Company
and its consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting principles in
the United States applied on a consistent basis throughout the periods covered thereby, and
any supporting schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein; and the other
financial information included or incorporated by reference in the Registration Statement,
the Pricing Disclosure Package and the Prospectus has been derived from the accounting
records of the Company and its consolidated subsidiaries and presents fairly the information
shown thereby
(g) No Material Adverse Change. Since September 30, 2010, (i) there has not been any
material change in the capital stock (other than the issuance of shares of Common Stock upon
exercise of stock options and warrants described as outstanding in, and the grant of options
and awards under existing equity incentive plans described in, the Registration Statement,
the Pricing Disclosure Package and the Prospectus), short-term debt or long-term debt of the
Company or its subsidiaries, or any dividend or distribution of any kind declared, set aside
for payment, paid or made by the Company on any class of capital stock, or any material
adverse change, or any development involving a prospective material adverse change, in or
affecting the business, properties, management, financial position, stockholders equity,
results of operations or prospects of the Company and its subsidiaries taken as a whole;
(ii) neither the Company nor any of its subsidiaries has entered into any transaction or
agreement (whether or not in the ordinary course of business) that is material to the
Company and its subsidiaries taken as a whole or incurred any liability or obligation,
direct or contingent, that is material to the Company and its
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subsidiaries taken as a whole; and (iii) neither the Company nor any of its
subsidiaries has sustained any loss or interference with its business that is material to
the Company and its subsidiaries taken as a whole and that is either from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor disturbance
or dispute or any action, order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus.
(h) Organization and Good Standing. The Company and its subsidiaries have been duly
organized and are validly existing and in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business and are in good standing in
each jurisdiction in which their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to be so qualified or in good standing or have
such power or authority would not, individually or in the aggregate, have a material adverse
effect on the business, properties, management, financial position, stockholders equity,
results of operations or prospects of the Company and its subsidiaries taken as a whole or
on the performance by the Company of its obligations under this Agreement (as defined below)
(a Material Adverse Effect). The Company does not own or control, directly or indirectly,
any corporation, association or other entity other than Sub-Q Solutions, Inc., a Delaware
corporation.
(i) Capitalization. All the outstanding shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non-assessable and are
not subject to any pre-emptive or similar rights; except as described in or expressly
contemplated by the Pricing Disclosure Package and the Prospectus, there are no outstanding
rights (including, without limitation, pre-emptive rights), warrants or options to acquire,
or instruments convertible into or exchangeable for, any shares of capital stock or other
equity interest in the Company or its subsidiaries, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any capital stock of
the Company or its subsidiaries, any such convertible or exchangeable securities or any such
rights, warrants or options; the capital stock of the Company conforms in all material
respects to the description thereof contained in the Registration Statement, the Pricing
Disclosure Package and the Prospectus; and all the outstanding shares of capital stock or
other equity interests of the subsidiaries of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable (except as otherwise described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus) and are owned
directly or indirectly by the Company, free and clear of any lien, charge, encumbrance,
security interest, restriction on voting or transfer or any other claim of any third party
(except as otherwise described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus).
(j) Stock Options. Except as would not, individually or in the aggregate, have a
Material Adverse Effect, with respect to the stock options (the Stock Options) granted
pursuant to the stock-based compensation plans of the Company (the Company Stock Plans),
(i) to the Companys knowledge, each Stock Option intended to qualify as an incentive stock
option under Section 422 of the Internal Revenue Code of 1986, as amended (the Code) so
qualifies, (ii) each grant of a Stock Option was duly authorized no later than the date on
which the grant of such Stock Option was by its terms to be effective (the Grant Date) by
all necessary corporate action, including, as applicable, approval by the board of directors
of the Company (or a duly constituted and authorized committee thereof) and any required
stockholder approval by the necessary number of votes or written consents, and the award
agreement governing such grant (if
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any) was duly executed and delivered by each party thereto, (iii) each such grant was
made in accordance with the applicable terms of the Company Stock Plans, the Exchange Act
and all other applicable laws and regulatory rules or requirements, including, to the extent
applicable, the rules of the Nasdaq Global Market (the Nasdaq Market), and (iv) each Stock
Option was properly accounted for in accordance with GAAP in the financial statements
(including the related notes) of the Company and disclosed in the Companys filings with the
Commission in accordance with the Exchange Act and all other applicable laws. The Company
has not knowingly granted, and there is no and has been no policy or practice of the Company
of granting, Stock Options prior to, or otherwise coordinating the grant of Stock Options
with, the release or other public announcement of material information regarding the Company
or its subsidiaries or their results of operations or prospects.
(k) Due Authorization. The Company has full right, power and authority to execute and
deliver this Agreement and to perform its obligations hereunder; and all action required to
be taken for the due and proper authorization, execution and delivery by it of this
Agreement and the consummation by it of the transactions contemplated hereby has been duly
and validly taken.
(l) Underwriting Agreement. This Agreement has been duly authorized, executed and
delivered by the Company.
(m) The Shares. The Shares have been duly authorized and, when issued and delivered
and paid for as provided herein, will be duly and validly issued, will be fully paid and
nonassessable and will conform to the descriptions thereof in the Registration Statement,
the Pricing Disclosure Package and the Prospectus; and the issuance of the Shares will not
be subject to any preemptive or similar rights.
(n) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) 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 or other agreement or instrument
to which the Company or its subsidiaries is a party or by which the Company or its
subsidiaries is bound or to which any of the property or assets of the Company or its
subsidiaries is subject; or (iii) in violation of any law or statute or any judgment, order,
rule or regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such default or violation that
would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(o) No Conflicts. The execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares and the consummation of the transactions
contemplated by this Agreement 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, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company or its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or its subsidiaries is a
party or by which the Company or its subsidiaries is bound or to which any of the property
or assets of the Company or its subsidiaries is subject, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational documents of the Company or
its subsidiaries or (iii) result in the violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (i) and (iii) above, for any
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such default, breach or violation that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(p) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of this Agreement, the
issuance and sale of the Shares and the consummation of the transactions contemplated by
this Agreement, except for the registration of the Shares under the Securities Act, the
listing of the Shares on the Nasdaq Market and such consents, approvals, authorizations,
orders and registrations or qualifications as may be required by the Financial Industry
Regulatory Authority, Inc. (FINRA) and under applicable state securities laws in
connection with the purchase and distribution of the Shares by the Underwriter.
(q) Legal Proceedings. Except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Company or its
subsidiaries is or may be a party or to which any property of the Company or its
subsidiaries is or may be the subject that, individually or in the aggregate, if determined
adversely to the Company or its subsidiaries, would reasonably be expected to have a
Material Adverse Effect or materially and adversely affect the ability of the Company to
perform its obligations under this Agreement; the Company has not received any written
notice that any such investigations, actions, suits or proceedings are threatened or
contemplated by any governmental or regulatory authority or threatened by others; and (i)
there are no current or pending legal, governmental or regulatory actions, suits or
proceedings that are required under the Securities Act to be described in the Registration
Statement, the Pricing Disclosure Package or the Prospectus that are not so described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus and (ii) there are
no statutes, regulations or contracts or other documents that are required under the
Securities Act to be filed as exhibits to the Registration Statement or described in the
Registration Statement, the Pricing Disclosure Package or the Prospectus that are not so
filed as exhibits to the Registration Statement or described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
(r) Independent Accountants. Ernst & Young LLP, who has certified certain financial
statements of the Company and its subsidiaries, is an independent registered public
accounting firm with respect to the Company and its subsidiaries within the applicable rules
and regulations adopted by the Commission and the Public Company Accounting Oversight Board
(United States) and as required by the Securities Act.
(s) Title to Real and Personal Property. Except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, the Company and its
subsidiaries have good and marketable title in fee simple (in the case of real property) to,
or have valid and marketable rights to lease or otherwise use, all items of real and
personal property and assets that are material to the respective businesses of the Company
and its subsidiaries, in each case free and clear of all liens, encumbrances, claims and
defects and imperfections of title except those that (i) do not materially interfere with
the use made and proposed to be made of such property by the Company and its subsidiaries or
(ii) would not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
(t) Title to Intellectual Property. Except as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, (i) the Company and its subsidiaries own
or possess adequate rights to use all material patents, patent applications, trademarks,
service marks, trade
9
names, trademark registrations, service mark registrations, copyrights, licenses and
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the conduct of their
respective businesses as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, (ii) the conduct of their respective businesses will not
conflict in any material respect with any such rights of others, and (iii) the Company and
its subsidiaries have not received any written notice of any claim of infringement,
misappropriation or conflict with any such rights of others and no executive officer of the
Company has received any other notice of such claim, except as otherwise disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
(u) No Undisclosed Relationships. No relationship, direct or indirect, exists between
or among the Company or its subsidiaries, on the one hand, and the directors and officers of
the Company and, to the Companys knowledge, the stockholders, customers or suppliers of the
Company or its subsidiaries, on the other, that is required by the Securities Act to be
described in the Registration Statement and the Prospectus and that is not so described in
such documents and in the Pricing Disclosure Package.
(v) Investment Company Act. The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be
required to register as an investment company or an entity controlled by an investment
company within the meaning of the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder.
(w) Taxes. The Company and its subsidiaries have paid all federal, state, local and
foreign taxes (including satisfying any withholding tax obligations) and filed all tax
returns required to be paid or filed through the date hereof, except for taxes being
contested in good faith by appropriate procedures and for which adequate reserves have been
established in accordance with U.S. generally accepted accounting principles or where such
failure to pay or file would not reasonably be expected to have a Material Adverse Effect;
and except as otherwise disclosed in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there is no tax deficiency that has been, or could reasonably be
expected to be, asserted against the Company or its subsidiaries or any of their respective
properties or assets except as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(x) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or
the conduct of their respective businesses as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, except where the failure to possess or make
the same would not, individually or in the aggregate, have a Material Adverse Effect; and
except as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, neither the Company nor any of its subsidiaries has received notice of any
revocation or modification of any such license, certificate, permit or authorization or has
any reason to believe that any such license, certificate, permit or authorization will not
be renewed in the ordinary course where such revocation, modification or failure to renew
would not reasonably be expected to have a Material Adverse Effect.
(y) No Labor Disputes. No labor disturbance by or dispute with employees of the
Company or its subsidiaries exists or, to the knowledge of the Company, is contemplated or
threatened, and the Company is not aware of any existing or imminent labor disturbance by,
or
10
dispute with, the employees of any of the Company or its subsidiaries, except as would
not have a Material Adverse Effect.
(z) Compliance with and Liability under Environmental Laws. (i) The Company and its
subsidiaries (x) are in compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, requirements, decisions and orders relating to the
protection of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, Environmental Laws), (y) have received
and are in compliance with all permits, licenses, certificates or other authorizations or
approvals required of them under applicable Environmental Laws to conduct their respective
businesses, and (z) have not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, and (ii) there are no costs or liabilities associated
with Environmental Laws of or relating to the Company or its subsidiaries, except in the
case of each of (x) and (i)(y) above, for any such failure to comply, or failure to receive
required permits, licenses or approvals, or cost or liability, as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
(aa) Compliance with ERISA. Each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended (ERISA), that is
maintained, administered or contributed to by the Company or any of its affiliates for
employees or former employees of the Company and its affiliates has been maintained in all
material respects in compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited to ERISA and the Code;
no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any such plan, excluding transactions effected pursuant
to a statutory or administrative exemption; and for each such plan that is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA, no accumulated funding
deficiency as defined in Section 412 of the Code has been incurred, whether or not waived,
and the fair market value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeds the present value of all benefits accrued under
such plan (determined using reasonable actuarial assumptions).
(bb) Disclosure Controls. The Company and its subsidiaries maintain an effective
system of disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange
Act) that is designed to ensure that information required to be disclosed by the Company in
reports that it files or submits under the Exchange Act is recorded, processed, summarized
and reported within the time periods specified in the Commissions rules and forms,
including controls and procedures designed to ensure that such information is accumulated
and communicated to the Companys management as appropriate to allow timely decisions
regarding required disclosure. The Company and its subsidiaries have carried out
evaluations of the effectiveness of their disclosure controls and procedures as required by
Rule 13a-15 of the Exchange Act.
(cc) Accounting Controls. The Company and its subsidiaries maintain a system of
internal control over financial reporting designed to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with generally accepted accounting principles,
including, but not limited to, internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with managements general or
specific authorizations; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is
11
permitted only in accordance with managements general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences.
(dd) Insurance. The Company and its subsidiaries have insurance covering their
respective properties, operations, personnel and business, which insurance is in amounts and
insures against such losses and risks as are prudent and customary in the business in which
they are engaged; and neither the Company nor any of its subsidiaries has (i) received
written 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 or
(ii) 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 substantially similar coverage at reasonable
cost from similar insurers as may be necessary to continue its business.
(ee) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or other person acting on
behalf of the Company or its subsidiaries 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 Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(ff) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries 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), in each case, to the extent applicable to the Company, and no
action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company or its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(gg) Compliance with OFAC. None of the Company, its subsidiaries or, to the knowledge
of the Company, any director, officer, agent, employee or affiliate of the Company or its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (OFAC); and the Company will
not, directly or indirectly, use the proceeds of the offering of the Shares hereunder, 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.
(hh) No Restrictions on Subsidiaries. Except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, the subsidiaries of the
Company are not currently prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any dividends to the Company,
from making any other distribution on such subsidiarys capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from transferring any
of such subsidiarys properties or assets to the Company or any other subsidiary of the
Company.
12
(ii) No Brokers Fees. Neither the Company nor any of its subsidiaries is a party to
any contract, agreement or understanding with any person (other than this Agreement) that
would give rise to a valid claim against the Company or its subsidiaries or the Underwriter
for a brokerage commission, finders fee or like payment in connection with the offering and
sale of the Shares.
(jj) No Registration Rights. No person has the right to require the Company or its
subsidiaries to register any securities for sale under the Securities Act by reason of the
filing of the Prospectus Supplement with the Commission or the issuance and sale of the
Shares.
(kk) No Stabilization. The Company has not taken, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Shares.
(ll) Margin Rules. The application of the proceeds received by the Company from the
issuance, sale and delivery of the Shares as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus will not violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System or any other regulation of such Board of
Governors.
(mm) Forward-Looking Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the
Registration Statement, the Pricing Disclosure Package or the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(nn) Statistical and Market Data. Nothing has come to the attention of the Company
that has caused the Company to believe that the statistical and market-related data included
or incorporated by reference in the Registration Statement, the Pricing Disclosure Package
and the Prospectus is not based on or derived from sources that are reliable and accurate in
all material respects.
(oo) Sarbanes-Oxley Act. There is and has been no failure on the part of the Company
or any of the Companys directors or officers, in their capacities as such, to comply with
any provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the Sarbanes-Oxley Act), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(pp) Status under the Securities Act. At the time of filing the Registration Statement
and any post-effective amendment thereto, at the earliest time thereafter that the Company
or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)
under the Securities Act) of the Shares and at the date hereof, the Company was not and is
not an ineligible issuer, as defined in Rule 405 under the Securities Act. The Company
has paid the registration fee for this offering pursuant to Rule 456(b)(1) under the
Securities Act or will pay such fee within the time period required by such rule (without
giving effect to the proviso therein) and in any event prior to the Closing Date.
(qq) No Ratings. There are no securities or preferred stock of or guaranteed by the
Company or any of its subsidiaries that are rated by a nationally recognized statistical
rating organization, as such term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act.
13
4. Further Agreements of the Company. The Company covenants and agrees with the
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission
within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the
Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule
433 under the Securities Act; will file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of 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; and will furnish copies of the Prospectus and each
Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriter
in Boston prior to 10:00 A.M., Boston time, on the second business day next succeeding the
date of this Agreement in such quantities as the Underwriter may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the
Underwriter, two signed copies of the Registration Statement as originally filed and each
amendment thereto, in each case including all exhibits and consents filed therewith; and
(ii) to the Underwriter (A) a conformed copy of the Registration Statement as originally
filed and each amendment thereto (without exhibits) and (B) during the Prospectus Delivery
Period (as defined below), as many copies of the Prospectus (including all amendments and
supplements thereto and each Issuer Free Writing Prospectus) as the Underwriter may
reasonably request. As used herein, the term Prospectus Delivery Period means such period
of time after the first date of the public offering of the Shares as in the opinion of
counsel for the Underwriter a prospectus relating to the Shares is required by law to be
delivered (or required to be delivered but for Rule 172 under the Securities Act) in
connection with sales of the Shares by the Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing,
using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus,
and before filing any amendment or supplement to the Registration Statement or the
Prospectus, the Company will furnish to the Underwriter and counsel for the Underwriter a
copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and
will not prepare, use, authorize, approve, refer to or file any such Issuer Free Writing
Prospectus or file any such proposed amendment or supplement to which the Underwriter
reasonably objects.
(d) Notice to the Underwriter. The Company will advise the Underwriter promptly, and
confirm such advice in writing, (i) when any amendment to the Registration Statement has
been filed or becomes effective; (ii) when any supplement to the Prospectus or any Issuer
Free Writing Prospectus or any amendment to the Prospectus has been filed; (iii) of any
request by the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or the receipt of any comments from the Commission relating
to the Registration Statement or any other request by the Commission for any additional
information; (iv) of the issuance by the Commission of any order suspending the
effectiveness of the Registration Statement or preventing or suspending the use of any of
the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any
proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the
occurrence of any event within the Prospectus Delivery Period as a result of which the
Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus as then
amended or supplemented would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus, the Pricing Disclosure Package or any such
Issuer Free Writing Prospectus is delivered to a purchaser, not
14
misleading; and (vi) of the receipt by the Company of any notice of objection of the
Commission to the use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Company
of any notice with respect to any suspension of the qualification of the Shares for offer
and sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company will use its best efforts to prevent the issuance of any such order
suspending the effectiveness of the Registration Statement, preventing or suspending the use
of any of the Pricing Disclosure Package or the Prospectus or suspending any such
qualification of the Shares and, if any such order is issued, will obtain as soon as
possible the withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event
shall occur or condition shall exist as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or
(ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company
will immediately notify the Underwriter thereof and forthwith prepare and, subject to
paragraph (c) above, file with the Commission and furnish to the Underwriter and to such
dealers as the Underwriter may designate, such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law and (2) if at any
time prior to the Closing Date (i) any event shall occur or condition shall exist as a
result of which the Pricing Disclosure Package as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances existing when the
Pricing Disclosure Package is delivered to a purchaser, not misleading or (ii) it is
necessary to amend or supplement the Pricing Disclosure Package to comply with law, the
Company will immediately notify the Underwriter thereof and forthwith prepare and, subject
to paragraph (c) above, file with the Commission (to the extent required) and furnish to the
Underwriter and to such dealers as the Underwriter may designate such amendments or
supplements to the Pricing Disclosure Package as may be necessary so that the statements in
the Pricing Disclosure Package as so amended or supplemented will not, in the light of the
circumstances existing when the Pricing Disclosure Package is delivered to a purchaser, be
misleading or so that the Pricing Disclosure Package will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Underwriter shall reasonably
request and will continue such qualifications in effect so long as required for distribution
of the Shares; provided that the Company shall not be required to (i) qualify as a
foreign corporation or other entity or as a dealer in securities in any such jurisdiction
where it is not now so qualified, (ii) take any action that would subject it to service of
process in any such jurisdiction where it is not now so subject or (iii) subject itself to
taxation in any such jurisdiction if it is not otherwise so subject.
(g) Earning Statement. The Company will make generally available to its security
holders and the Underwriter as soon as practicable an earning statement that satisfies the
provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated
thereunder covering a period of at least twelve months beginning after the effective date
of the Registration Statement (as defined in Rule 158).
15
(h) Clear Market. For a period of 90 days after the date of the Prospectus, the
Company will not (i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, or file with the
Commission a registration statement under the Securities Act relating to, any shares of
Stock or any securities convertible into or exercisable or exchangeable for Stock, or
publicly disclose the intention to make any offer, sale, pledge, disposition or filing, or
(ii) enter into any swap or other agreement that transfers, in whole or in part, any of the
economic consequences of ownership of the Stock or any such other securities, whether any
such transaction described in clause (i) or (ii) above is to be settled by delivery of Stock
or such other securities, in cash or otherwise, without the prior written consent of the
Underwriter, other than (A) the Shares to be sold hereunder , (B) any shares of Stock of the
Company issued upon the exercise of options granted under employee stock option plans
existing on the date hereof, (C) any shares of Common Stock of the Company issued upon
exercise of any warrants outstanding on the date hereof, (D) any employee stock options or
restricted stock issued pursuant to employee stock option plans, (E) any shares of Common
Stock of the Company issued upon the conversion or exchange of outstanding convertible notes
pursuant to the terms of the instruments governing such securities as in effect on the date
hereof, (F) any securities of the Company issued upon the conversion, swap or exchange of
convertible notes outstanding as of the date hereof, (G) the filing and effectiveness under
the Securities Act of any registration statement (or any supplement or amendment to any
previously-filed registration statement) that the Company may be required to file with the
Commission pursuant to the rights of any holder of warrants outstanding on the date hereof,
and (H) the filing and effectiveness under the Securities Act of any registration statement
on Form S-8 relating to inducement grants made by the Company prior to the date hereof.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the
Shares as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus under the heading Use of Proceeds.
(j) No Stabilization. The Company will not take, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Stock.
(k) Exchange Listing. The Company will use its best efforts to list the Shares on the
Nasdaq Market.
(l) Reports. For a period of two years from the Closing Date, as soon as they are
available, copies of all reports or other communications (financial or other) furnished to
holders of the Shares, and copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange or automatic quotation system;
provided the Company will be deemed to have furnished such documents to the
Underwriter to the extent they are filed on the Commissions Electronic Data Gathering,
Analysis, and Retrieval system.
(m) Record Retention. The Company will, pursuant to reasonable procedures developed in
good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriter. The Underwriter hereby represents and
agrees that:
16
(a) It has not used, authorized use of, referred to or participated in the planning for
use of, and will not use, authorize use of, refer to or participate in the planning for use
of, any free writing prospectus, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and
not incorporated by reference into the Registration Statement and any press release issued
by the Company) other than (i) a free writing prospectus that contains no issuer
information (as defined in Rule 433(h)(2) under the Securities Act) that was not included
(including through incorporation by reference) in a previously filed Issuer Free Writing
Prospectus, (ii) any Issuer Free Writing Prospectus listed on Annex B or prepared pursuant
to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any
free writing prospectus prepared by the underwriter and approved by the Company in advance
in writing (each such free writing prospectus referred to in clauses (i) or (iii), an
Underwriter Free Writing Prospectus).
(b) It has not and will not, without the prior written consent of the Company, use any
free writing prospectus that contains the final terms of the Shares unless such terms have
previously been included in a free writing prospectus filed with the Commission; provided
that Underwriter may use a term sheet substantially in the form of Annex C hereto without
the consent of the Company; provided further that the Underwriter using such term sheet
shall notify the Company, and provide a copy of such term sheet to the Company, prior to, or
substantially concurrently with, the first use of such term sheet.
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering (and will promptly notify the Company if any such proceeding
against it is initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters Obligations. The obligation of the Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing
Date, as the case may be, as provided herein is subject to the performance by the Company of its
covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceeding for such purpose or
pursuant to Section 8A under the Securities Act shall be pending before or, to the Companys
knowledge, threatened by the Commission; the Prospectus and each Issuer Free Writing
Prospectus shall have been timely filed with the Commission under the Securities Act (in the
case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the
Securities Act) and in accordance with Section 4(a) hereof; and all requests by the
Commission for additional information shall have been complied with to the reasonable
satisfaction of the Underwriter.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing
Date or the Additional Closing Date, as the case may be; and the statements of the Company
and its officers made in any certificates delivered pursuant to this Agreement shall be true
and correct on and as of the Closing Date or the Additional Closing Date, as the case may
be.
(c) No Material Adverse Change. No event or condition of a type described in Section
3(g) hereof shall have occurred or shall exist, which event or condition is not described in
the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the
Prospectus (excluding any amendment or supplement thereto) and the effect of which in the
judgment of the Underwriter makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Shares on the Closing Date or the Additional Closing Date,
as the case may
17
be, on the terms and in the manner contemplated by this Agreement, the Pricing
Disclosure Package and the Prospectus.
(d) Officers Certificate. The Underwriter shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, a certificate of the chief
financial officer or chief accounting officer of the Company and one additional senior
executive officer of the Company who is satisfactory to the Underwriter (i) confirming that
such officers have carefully reviewed the Registration Statement, the Pricing Disclosure
Package and the Prospectus and, to the knowledge of such officers, the representations set
forth in Section 3(b) hereof are true and correct, (ii) confirming that the other
representations and warranties of the Company in this Agreement are true and correct and
that the Company has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date or the Additional
Closing Date, as the case may be, and (iii) to the effect set forth in paragraphs (a), (c)
and (d) above.
(e) Comfort Letters. On the date of this Agreement and on the Closing Date or the
Additional Closing Date, as the case may be, Ernst & Young LLP shall have furnished to the
Underwriter, at the request of the Company, letters, dated the respective dates of delivery
thereof and addressed to the Underwriter, in form and substance reasonably satisfactory to
the Underwriter, containing statements and information of the type customarily included in
accountants comfort letters to underwriters with respect to the financial statements and
certain financial information contained or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus; provided, that the letter
delivered on the Closing Date or the Additional Closing Date, as the case may be, shall use
a cut-off date no more than three business days prior to such Closing Date or such
Additional Closing Date, as the case may be.
(f) Opinion and 10b-5 Statement of Counsel for the Company. Goodwin Procter LLP,
counsel for the Company, shall have furnished to the Underwriter, at the request of the
Company, their written opinion and 10b-5 statement, dated the Closing Date or the Additional
Closing Date, as the case may be, and addressed to the Underwriter, in form and substance
reasonably satisfactory to the Underwriter, to the effect set forth in Annex A-1 in the case
of the opinion letter and in Annex A-2 in the case of the 10b-5 Statement hereto.
(g) Opinion of General Counsel for the Company. R. Anthony Diehl, Esq., in his
capacity as General Counsel for the Company and not in his personal capacity, shall have
furnished to the Underwriter, at the request of the Company, his written opinion, dated the
Closing Date or the Additional Closing Date, as the case may be, and addressed to the
Underwriter, substantially in the form set forth in Annex A-3 hereto. The Underwriter
acknowledges and agrees that such General Counsel shall not have any personal liability in
connection with or arising from the delivery or content of such opinion.
(h) Opinion and 10b-5 Statement of Counsel for the Underwriter. The Underwriter shall
have received on and as of the Closing Date or the Additional Closing Date, as the case may
be, an opinion and 10b-5 statement of Choate, Hall & Stewart LLP, counsel for the
Underwriter, with respect to such matters as the Underwriter may reasonably request, and
such counsel shall have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
(i) No Legal Impediment to Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any federal, state
or
18
foreign governmental or regulatory authority that would, as of the Closing Date or the
Additional Closing Date, as the case may be, prevent the issuance or sale of the Shares; and
no injunction or order of any federal, state or foreign court shall have been issued that
would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent
the issuance or sale of the Shares.
(j) Good Standing. The Underwriter shall have received on and as of the Closing Date
or the Additional Closing Date, as the case may be, satisfactory evidence of the good
standing of the Company and its subsidiaries in their respective jurisdictions of
organization and their good standing as foreign entities in the jurisdictions set forth on
Annex D hereto.
(k) Exchange Listing. The Shares to be delivered on the Closing Date or Additional
Closing Date, as the case may be, shall have been approved for listing on the Nasdaq Market,
subject to official notice of issuance.
(l) Lock-up Agreements. The lock-up agreements, each substantially in the form of
Exhibit A hereto, between you and certain shareholders, officers and directors of the
Company relating to sales and certain other dispositions of shares of Stock or certain other
securities, delivered to you on or before the date hereof, shall be full force and effect on
the Closing Date or Additional Closing Date, as the case may be.
(m) Additional Documents. On or prior to the Closing Date or the Additional Closing
Date, as the case may be, the Company shall have furnished to the Underwriter such further
certificates and documents as the Underwriter may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriter.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriter. The Company agrees to indemnify and hold harmless the
Underwriter, its affiliates, directors and officers and each person, if any, who controls the
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the statements
therein, not misleading, or (ii) or any untrue statement or alleged untrue statement of a material
fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus, any issuer information filed or required to be filed pursuant to Rule 433(d) under
the Securities Act or any Pricing Disclosure Package (including any Pricing Disclosure Package that
has subsequently been amended), or caused by any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating
to the Underwriter furnished to the Company in writing by the Underwriter expressly for use
therein, it being understood and agreed that the only such information furnished by the Underwriter
consists of the information described as such in subsection (b) below.
19
(b) Indemnification of the Company. The Underwriter agrees to indemnify and hold harmless the
Company, its directors, its officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to the Underwriter furnished to the Company in writing
by the Underwriter expressly for use in the Registration Statement, the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus or any Pricing Disclosure
Package, it being understood and agreed upon that the only such information furnished by the
Underwriter consists of the following: the tenth, eleventh and twelfth paragraphs of text under the
caption Underwriting in the Prospectus Supplement relating to over-allotment, stabilization,
penalty bids, market making and syndicate covering transactions by the Underwriter.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the Indemnified Person) shall promptly notify the person against whom such
indemnification may be sought (the Indemnifying Person) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under paragraph (a) or (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b)
above. If any such proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the
Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in
such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interest between them (in which case the Indemnified Person
shall have the sole right to direct the defense of such proceeding). It is understood and agreed
that the Indemnifying Person shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses
shall be paid or reimbursed as they are incurred. Any such separate firm for the Underwriter, its
affiliates, directors and officers and any control persons of the Underwriter shall be designated
in writing by the Underwriter and any such separate firm for the Company, its directors, its
officers who signed the Registration Statement and any control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this
20
paragraph, the Indemnifying Person shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 45 days after
receipt by the Indemnifying Person of such request, (ii) such Indemnifying Person shall have
received notice of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) the Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No Indemnifying Person shall,
without the written consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person, unless such settlement
(x) includes an unconditional release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are the subject matter
of such proceeding and (y) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriter on the other, from the offering of the Shares or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the relative fault of the
Company, on the one hand, and the Underwriter on the other, in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company, on the one hand,
and the Underwriter on the other, shall be deemed to be in the same respective proportions as the
net proceeds (before deducting expenses) received by the Company from the sale of the Shares and
the total underwriting discounts and commissions received by the Underwriter in connection
therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the
aggregate offering price of the Shares. The relative fault of the Company, on the one hand, and
the Underwriter on the other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the Underwriter and the
parties relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) Limitation on Liability. The Company and the Underwriter agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriter 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 paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of
this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of
the amount by which the total underwriting discounts and commissions received by the Underwriter
with respect to the offering of the Shares exceeds the amount of any damages that the Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
21
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Underwriter, by notice to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date or, in the case of the Option Shares, prior to the Additional Closing
Date (a) trading generally shall have been suspended or materially limited on or by any of the New
York Stock Exchange or the Nasdaq Stock Market; (b) trading of any securities issued or guaranteed
by the Company shall have been suspended on any exchange or in any over-the-counter market; (c) a
general moratorium on commercial banking activities shall have been declared by federal or New York
State authorities; or (d) there shall have occurred any outbreak or escalation of hostilities or
any change in financial markets or any calamity or crisis, either within or outside the United
States, that, in the judgment of the Underwriter, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the
Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner
contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
10. [Intentionally omitted.]
11. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident
to the performance of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the Shares and any taxes
payable in that connection; (ii) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement, any Issuer Free Writing Prospectus, any Pricing
Disclosure Package and the Prospectus (including all exhibits, amendments and supplements thereto)
and the distribution thereof; (iii) the fees and expenses of the Companys counsel and independent
accountants; (iv) the fees and expenses incurred in connection with the registration or
qualification of the Shares under the state or foreign securities or blue sky laws of such
jurisdictions as the Underwriter may designate (including the related fees and expenses of counsel
for the Underwriter, up to a maximum of $5,000); (v) the cost of preparing stock certificates;
(vi) the costs and charges of any transfer agent and any registrar; (vii) all expenses and
application fees incurred in connection with any filing with, and clearance of the offering by,
FINRA; (viii) all expenses incurred by the Company in connection with any road show presentation
to potential investors; and (ix) all expenses and application fees related to the listing of the
Shares on the Nasdaq Market. It being understood, however, that the fees and disbursements related
to expenses of the Underwriter shall not exceed $110,000 in the aggregate.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason
fails to tender the Shares for delivery to the Underwriter or (iii) the Underwriter declines to
purchase the Shares for any reason permitted under this Agreement, the Company agrees to reimburse
the Underwriter for all out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriter in connection with this Agreement and the offering
contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and
22
any controlling persons referred to in Section 7 hereof. Nothing in this Agreement is
intended or shall be construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein. No purchaser of
Shares from the Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriter contained in this Agreement or made by
or on behalf of the Company or the Underwriter pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Shares and shall remain
in full force and effect, regardless of any termination of this Agreement or any investigation made
by or on behalf of the Company or the Underwriter.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term affiliate has the meaning set forth in Rule 405 under the Securities
Act; (b) the term business day means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term subsidiary has the meaning set forth in
Rule 405 under the Securities Act.
15. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriter shall be given to the Underwriter c/o Canaccord
Genuity Inc., 99 High Street, 11th Floor, Boston, MA 02110, Attention: Syndicate
Department (fax: (617) 788-1553), with a copy (which shall not constitute notice) to Choate, Hall
& Stewart LLP, Two International Place, Boston, MA 02110, Attention: Frederick P. Callori (fax
no.: (617) 248-4000). Notices to the Company shall be given to it at 9 Oak Park Drive, Bedford,
Massachusetts 01730, (fax: (781) 457-5011); Attention: R. Anthony Diehl, Esq. with a copy (which
shall not constitute notice) to Raymond C. Zemlin, Esq. Goodwin Procter LLP, Exchange Place,
Boston, Massachusetts 02109 (fax: (617) 523-1231). In accordance with the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriter is
required to obtain, verify and record information that identifies its clients, including the
Company, which information may include the name and address of its clients, as well as other
information that will allow the Underwriter to properly identify its clients.
(b) Governing Law. This Agreement and any claim, controversy or dispute arising under or
related to this Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in such state.
(c) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(d) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(e) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
23
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
Very truly yours, INSULET CORPORATION |
||||
By: | /s/ Brian K. Roberts | |||
Name: | Brian K. Roberts | |||
Title: | Chief Financial Officer | |||
Accepted and agreed to as of the date first above written: |
||||
CANACCORD GENUITY INC. | ||||
By: |
/s/ Jamie Brown | |||
Title: President, Head of Investment Banking |
Schedule 1
Underwriter | Number of Shares | |
Canaccord Genuity Inc. |
3,000,000 |
I-1