EXHIBIT 1.1
INSULET CORPORATION
[ ] Shares of Common Stock
Underwriting Agreement
[ ], 2007
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
Ladies and Gentlemen:
Insulet Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell to the several Underwriters listed in Schedule 1 hereto (the
"Underwriters"), for whom ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("JPMorgan") and ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇
▇▇▇▇▇") are acting as representatives (each a "Representative" and together, the
"Representatives"), an aggregate of [ ] shares of Common Stock, par value $
0.001 per share, of the Company (the "Underwritten Shares") and, at the option
of the Underwriters, up to an additional [ ] 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 herein referred
to as the "Stock."
The Company hereby confirms its agreement with the several Underwriters
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 (File No.
333-140694), including a prospectus, relating to the Shares. Such registration
statement, as amended at the time it became or becomes effective, including the
information, if any, deemed pursuant to Rule 430A, 430 B or 430C under the
Securities Act to be part of the registration statement at the time of its
effectiveness ("Rule 430 Information"), is referred to herein as the
"Registration Statement," and as used herein, the term "Preliminary Pro-
spectus" means each prospectus included in such registration statement (and any
amendments thereto) before it became or becomes effective, any prospectus filed
with the Commission pursuant to Rule 424(a) under the Securities Act and the
prospectus included in the Registration Statement at the time of its
effectiveness that omits Rule 430 Information, and the term "Prospectus" means
the prospectus 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. If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement. Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Registration Statement and the Prospectus.
At the Time of Sale (as defined below), the Company had prepared the
following information: a Preliminary Prospectus dated [ ], 2007 and each "free
writing prospectus" (as defined pursuant to Rule 405 under the Securities Act)
listed on Annex B hereto (collectively with the pricing information set forth on
Annex A hereto, the "Time of Sale Information").
"Time of Sale" means [ ] P.M. (Eastern time) on the date of this
Agreement.
2. Purchase of the Shares by the Underwriters.
(a) The Company agrees to issue and sell the Underwritten Shares to the
several Underwriters as provided in this Agreement, and each Underwriter, on the
basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and not jointly,
to purchase from the Company the respective number of Underwritten Shares set
forth opposite such Underwriter's name in Schedule 1 hereto at a price per share
of $[ ] (the "Purchase Price").
In addition, the Company agrees to issue and sell the Option Shares to
the several Underwriters as provided in this Agreement, and the Underwriters, on
the basis of the representations, warranties and agreements herein contained and
subject to the conditions set forth herein, shall have the option to purchase,
severally and not jointly, from the Company the Option Shares at the Purchase
Price.
If any Option Shares are to be purchased, the number of Option Shares to
be purchased by each Underwriter shall be the number of Option Shares which
bears the same ratio to the aggregate number of Option Shares being purchased as
the number of Underwritten Shares set forth opposite the name of such
Underwriter in Schedule 1 hereto (or such number increased as set forth in
Section 10 hereof) bears to the aggregate number of Underwritten Shares being
purchased from the Company by the several Underwriters, subject, however, to
such adjustments to eliminate any fractional Shares as the Representatives in
their sole discretion shall make.
The Underwriters may exercise the option to purchase the 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
Representatives 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
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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 (unless such time and date are postponed
in accordance with the provisions of Section 10 hereof). 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 Underwriters intend to make a
public offering of the Shares as soon after the effectiveness of this Agreement
as in the judgment of the Representatives is advisable, and initially to offer
the Shares on the terms set forth in the Prospectus. The Company acknowledges
and agrees that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell
Shares purchased by it to or through any 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 Representatives
in the case of the Underwritten Shares, at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 A.M., New York
City time, on [ ], 2007, or at such other time or place on the same or such
other date, not later than the fifth business day thereafter, as the
Representatives 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
Representatives 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
through the facilities of The Depository Trust Company ("DTC") to the
Representatives for the respective accounts of the several Underwriters of the
Shares to be purchased on such date in definitive form registered in such names
and in such denominations as the Representatives shall request in writing not
later than two full business days prior to the Closing Date or the Additional
Closing Date, as the case may be, with any transfer taxes payable in connection
with the sale of the Shares duly paid by the Company. Any certificates
representing the Shares will be made available for inspection and packaging by
the Representatives at the office of DTC or its designated custodian not later
than 1:00 P.M., New York City 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 Underwriters are acting
solely in the capacity of an arm's 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, neither the Representatives nor any other Underwriter is 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 Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the
transactions
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contemplated hereby or other matters relating to such transactions will be
performed solely for the benefit of the Underwriters and shall not be on behalf
of the Company.
3. Representations and Warranties of the Company. The Company represents
and warrants to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the
use of any Preliminary Prospectus distributed to prospective purchasers
has been issued by the Commission, and each such Preliminary Prospectus,
at the time of filing thereof, complied in all material respects with
the Securities Act and did not contain 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 under
which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions
made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any such Preliminary
Prospectus.
(b) Time of Sale Information. The Time of Sale Information, at
the Time of Sale, did not, and, at the Closing Date and as of the
Additional Closing Date, as the case may be, will not, contain 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 under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for
use in such Time of Sale Information. No statement of material fact that
will be included in the Prospectus is not included in the Time of Sale
Information, and no statement of material fact included in the Time of
Sale Information that is required by the Securities Act to be included
in the Prospectus will be omitted therefrom.
(c) Issuer Free Writing Prospectus. Other than the Preliminary
Prospectus and the Prospectus, the Company (including its agents and
representatives, other than the Underwriters in their capacity as such)
has not prepared, made, used, authorized, approved or referred to and
will not prepare, make, use, authorize, approve or refer to any "written
communication" (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the
Shares (each such communication by the Company or its agents and
representatives (other than a communication referred to in clause (i)
below), an "Issuer Free Writing Prospectus") other than (i) any document
not constituting a prospectus pursuant to Section 2(a)(10)(a) of the
Securities Act or Rule 134 under the Securities Act or (ii) the
documents listed on Annex B hereto and other written communications
approved in writing in advance by the Representatives. Each such Issuer
Free Writing Prospectus complied in all material respects with the
Securities Act, has been filed in accordance with the Securities Act (to
the extent required thereby) and, when taken together with the
Preliminary Prospectus accompanying, or delivered prior to delivery of,
such Issuer Free Writing Prospectus and any other Issuer Free Writing
Prospectus filed in accordance with the Securities Act, did not, and at
the Closing
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Date and as of the Additional Closing Date, as the case may be, will
not, contain 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 under which they were made, not misleading;
provided that the Company makes no representation and warranty with
respect to any statements or omissions made in each such Issuer Free
Writing Prospectus in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in any Issuer
Free Writing Prospectus.
(d) Registration Statement and Prospectus. The Registration
Statement has been declared effective by the Commission. No order
suspending the effectiveness of the Registration Statement has been
issued by the Commission and no proceeding for that purpose or pursuant
to Section 8A of the Securities Act against the Company or related to
the offering of the Shares has been initiated or, to the Company's
knowledge, threatened by the Commission; as of the applicable effective
date of the Registration Statement and any amendment thereto, the
Registration Statement complied and will comply in all material respects
with the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and as of the date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date and as of the Additional
Closing Date, as the case may be, the Prospectus will not contain 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 under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for
use in the Registration Statement and the Prospectus and any amendment
or supplement thereto.
(e) Financial Statements. The financial statements and the
related notes thereto of the Company and its consolidated subsidiary
included in the Registration Statement, the Time of Sale Information and
the Prospectus comply in all material respects with the applicable
requirements of the Securities Act and present fairly, in all material
respects, the financial position of the Company and its subsidiary 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 applied on a consistent basis throughout the periods covered
thereby (except as otherwise noted therein), and any supporting
schedules included in the Registration Statement present fairly, in all
material respects, the information required to be stated therein; and
the other financial information included in the Registration Statement,
the Time of Sale Information and the Prospectus has been derived from
the accounting records of the Company and its subsidiary and presents
fairly, in all material respects, the information shown thereby.
(f) No Material Adverse Change. Since the date of the most recent
financial statements of the Company included in the Registration
Statement, the Time of Sale Information and the Prospectus, (i) there
has not been any material change in the capital
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stock or long-term debt of the Company or its subsidiary, 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 subsidiary taken as a
whole; (ii) neither the Company nor its subsidiary has entered into any
transaction or agreement that is material to the Company and its
subsidiary taken as a whole or incurred any liability or obligation,
direct or contingent, that is material to the Company and its subsidiary
taken as a whole; and (iii) neither the Company nor its subsidiary has
sustained any material loss or interference with its business 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 the case of each of clause (i), (ii) and (iii) above as
otherwise disclosed in or contemplated by the Registration Statement,
the Time of Sale Information and the Prospectus.
(g) Organization and Good Standing. The Company and its
subsidiary 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 in good standing, so
qualified or have such power or authority would not, individually or in
the aggregate, have a material adverse effect on the business,
properties, financial position, stockholders' equity, results of
operations or prospects of the Company and its subsidiary taken as a
whole (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, which
is listed in Exhibit 21.1 to the Registration Statement.
(h) Capitalization. Upon the filing with the Secretary of State
of Delaware on or prior to the Closing Date of the Eighth Amended and
Restated Certificate of Incorporation of the Company in the form
attached as Exhibit 3.2 to the Registration Statement, the Company will
have an authorized capitalization as set forth in the Registration
Statement, the Time of Sale Information and the Prospectus under the
heading "Description of Capital Stock;" all the shares of capital stock
of the Company that will be outstanding immediately prior to the Closing
Date will have been duly and validly authorized and issued and will be
fully paid and non-assessable and will not be subject to any preemptive
or similar rights other than those terminated on the Closing Date, none
of which will be triggered as a result of the issuance of the Shares;
except as described in or expressly contemplated by the Time of Sale
Information and the Prospectus, immediately prior to the Closing Date
there will be no outstanding rights (including, without limitation,
preemptive 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 subsidiary, or any contract,
commitment, agreement, understanding or arrangement of any kind relating
to the issuance of any capital stock of the Company or its subsidiary,
any such
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convertible or exchangeable securities or any such rights, warrants or
options; upon such filing the capital stock of the Company will conform
in all material respects to the description thereof contained in the
Registration Statement, the Time of Sale Information and the Prospectus
under the heading "Description of Capital Stock;" and all the
outstanding shares of capital stock or other equity interests of the
subsidiary 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 Time of Sale Information 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 Time
of Sale Information and the Prospectus).
(i) Underwriting Agreement. 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. This Agreement has been duly authorized,
executed and delivered by the Company.
(j) The Shares. The Shares have been duly authorized by the
Company and, when issued and delivered and paid for as provided herein,
will be duly and validly issued and will be fully paid and
non-assessable and will conform to the descriptions thereof in the Time
of Sale Information and the Prospectus; and the issuance of the Shares
will not be subject to any preemptive or similar rights.
(k) No Violation or Default. Neither the Company nor its
subsidiary 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
subsidiary is a party or by which the Company or its subsidiary is bound
or to which any of the property or assets of the Company or its
subsidiary 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.
(l) No Conflicts. The execution and delivery by the Company of
this Agreement do not, and the 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 subsidiary pursuant to, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or its subsidiary is a party or by which the
Company or its subsidiary is bound or to which any of the property or
assets of the Company or its subsidiary 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
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subsidiary 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 such default, breach or violation that would
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(m) 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 Nasdaq
Global Market and such consents, approvals, authorizations, orders and
registrations or qualifications as may be required under applicable
state securities laws in connection with the purchase and distribution
of the Shares by the Underwriters.
(n) Legal Proceedings. Except as described in the Registration
Statement, the Time of Sale Information and the Prospectus, there are no
legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company or its subsidiary is or may be
a party or to which any property of the Company or its subsidiary is or
may be the subject that, individually or in the aggregate, if determined
adversely to the Company or its subsidiary, 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 others; to
the knowledge of the Company, no such investigations, actions, suits or
proceedings are so threatened or contemplated; 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 that are not so described in the
Registration Statement, the Time of Sale Information 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 or the Prospectus that are not so filed as exhibits to the
Registration Statement or described in the Registration Statement, the
Time of Sale Information and the Prospectus.
(o) Independent Accountants. Ernst & Young LLP, who has certified
certain financial statements of the Company and its subsidiary, is an
independent registered public accounting firm with respect to the
Company and its subsidiary within the applicable rules and regulations
adopted by the Commission and the Public Accounting Oversight Board
(United States) and as required by the Securities Act.
(p) Title to Real and Personal Property. Except as described in
the Registration Statement, the Time of Sale Information and the
Prospectus, the Company and its subsidiary have good and marketable
title in fee simple (in the case of real property) to, or have valid
rights to lease or otherwise use, all items of real and personal
property that
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are material to the respective businesses of the Company and its
subsidiary, 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 subsidiary or (ii) would not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(q) Title to Intellectual Property. Except as described in the
Registration Statement, the Time of Sale Information and the Prospectus,
(i) the Company and its subsidiary own or possess adequate rights to use
all material patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service ▇▇▇▇ 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 Time of Sale
Information 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 subsidiary have not
received any written notice of any claim of infringement or conflict
with any such rights of others and no executive officer of the Company
has received any other notice of any such claim.
(r) No Undisclosed Relationships. No relationship, direct or
indirect, exists between or among the Company or its subsidiary, on the
one hand, and the directors and officers of the Company and, to the
Company's knowledge, the stockholders, customers or suppliers of the
Company or its subsidiary, 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
Time of Sale Information.
(s) 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 Time of
Sale Information 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
(collectively, the "Investment Company Act").
(t) Taxes. The Company and its subsidiary have paid all federal,
state, local and foreign taxes and filed all tax returns required to be
paid or filed through the date hereof, except for taxes being contested
in good faith 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 Time of Sale Information
and the Prospectus, there is no tax deficiency that has been, or could
reasonably be expected to be, asserted against the Company or its
subsidiary 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.
(u) Licenses and Permits. The Company and its subsidiary 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
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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 Time of Sale
Information 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 Time of Sale Information and the Prospectus, neither the
Company nor its subsidiary 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.
(v) No Labor Disputes. No labor disturbance by or dispute with
employees of the Company or its subsidiary 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 dispute with,
the employees of the Company or its subsidiary, except as would not have
a Material Adverse Effect.
(w) Compliance with Environmental Laws. (i) The Company and its
subsidiary (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 subsidiary, except in the case
of each of (i)(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.
(x) 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 Internal Revenue Code of
1986, as amended (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.
-10-
(y) Accounting Controls. The Company and its subsidiary 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 management's 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 permitted only in accordance with management's 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.
(z) Insurance. The Company and its subsidiary 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 or its subsidiary has 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) 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.
(aa) No Unlawful Payments. Neither the Company or its subsidiary
nor, to the knowledge of the Company, any director, officer, agent,
employee or other person acting on behalf of the Company or its
subsidiary 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.
(bb) Compliance with Money Laundering Laws. The operations of the
Company and its subsidiary 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 subsidiary with
respect to the Money Laundering Laws is pending or, to the best
knowledge of the Company, threatened.
(cc) Compliance with OFAC. None of the Company, its subsidiary
or, to the best knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or its subsidiary is currently
subject to any U.S. sanctions administered by the
-11-
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.
(dd) No Restrictions on Subsidiaries. Except as described in the
Registration Statement, the Time of Sale Information and the Prospectus,
the subsidiary of the Company is 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 subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from
the Company or from transferring any of such subsidiary's properties or
assets to the Company or any other subsidiary of the Company.
(ee) No Broker's Fees. Neither the Company nor its subsidiary 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 subsidiary or any Underwriter for a brokerage
commission, finder's fee or like payment in connection with the offering
and sale of the Shares.
(ff) No Registration Rights. No person has the right to require
the Company or its subsidiary to register any securities for sale under
the Securities Act by reason of the filing of the Registration Statement
with the Commission or the issuance and sale of the Shares, except such
as has been previously waived.
(gg) 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 of the price of the Stock in
violation of Regulation M under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") or any manipulation of the price of
the Stock.
(hh) Margin Rules. Neither the issuance, sale and delivery of the
Shares nor the application of the proceeds thereof by the Company as
described in the Registration Statement, the Time of Sale Information
and the Prospectus will 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.
(ii) 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 Time
of Sale Information and the Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good
faith.
(jj) 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 in the Registration
Statement, the Time of Sale Information and the Pro-
-12-
spectus is not based on or derived from sources that are reliable and
accurate in all material respects.
(kk) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company has taken all necessary
actions to ensure that, upon effectiveness of the Registration
Statement, it will be in compliance with all provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in
connection therewith (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") that are then in effect
and which the Company is required to comply with as of the effectiveness
of the Registration Statement, and is actively taking steps to ensure
that it will be in compliance with other provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act not currently in effect, upon the effectiveness of
such provisions, or which will become applicable to the Company at all
times after the effectiveness of the Registration Statement.
(ll) Status Under the Securities Act. The Company is not an
"ineligible issuer" as defined under the Securities Act at the times
specified in the Securities Act in connection with the offering of the
Shares.
4. Further Agreements of the Company. The Company covenants and agrees
with each 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 and will file any
Issuer Free Writing Prospectus (to the extent not previously delivered)
to the extent required by Rule 433 under the Securities Act. The Company
will furnish copies of the Prospectus and each Issuer Free Writing
Prospectus (to the extent not previously delivered) to the Underwriters
in New York City as soon as practicable following the date hereof, but
in no event later than 10:00 A.M., New York City time, on the second
business day next succeeding the date of this Agreement in such
quantities as the Representatives may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge,
(i) to the Representatives, three 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 each
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 Representatives 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 Underwriters
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 any 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 Representatives and counsel for the
-13-
Underwriters 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 amendment or supplement to which the Representatives
reasonably object.
(d) Notice to the Representative. The Company will advise the
Representatives promptly, and, upon the request of the Representatives,
will confirm such advice in writing, (i) when the Registration Statement
has become effective; (ii) when any amendment to the Registration
Statement has been filed or becomes effective; (iii) when any supplement
to the Prospectus or any amendment to the Prospectus or any Issuer Free
Writing Prospectus has been filed; (iv) 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; (v) of the issuance by
the Commission of any order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose or pursuant to Section 8A
of the Securities Act; (vi) of the occurrence of any event within the
Prospectus Delivery Period as a result of which the Prospectus, the Time
of Sale Information 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 required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus, the Time of Sale Information
or any such Issuer Free Writing Prospectus is delivered to a purchaser,
not misleading; 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 Preliminary Prospectus 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 of the Prospectus. (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 Underwriters thereof and forthwith
prepare and, subject to paragraph (c) above, file with the Commission,
and furnish to the Underwriters and to such dealers as the
Representatives may designate, such amendments or supplements to the
Prospectus as may be necessary so that the Prospectus as so amended or
supplemented will not 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 as so amended or supplemented is delivered to a purchaser,
not 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
-14-
exist as a result of which the Time of Sale Information 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 at the Time of
Sale, not misleading or (ii) it is necessary to amend or supplement the
Time of Sale Information to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the extent
required) and furnish to the Underwriters, and to such dealers as the
Representatives may designate, such amendments or supplements to the
Time of Sale Information as may be necessary so that the Time of Sale
Information as so amended or supplemented will not 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 at the Time of Sale, not misleading or so that
the Time of Sale Information 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 Representatives shall reasonably request and will
continue such qualifications in effect so long as required for
distribution of the Shares.
(g) Earning Statement. The Company will make generally available
to its security holders and the Representatives 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 with the first
fiscal quarter of the Company occurring after the "effective date" (as
defined in Rule 158) of the Registration Statement.
(h) Clear Market. For a period of 180 days after the date of the
initial public offering of the Shares, the Company will not (i) offer,
pledge, announce the intention to sell, 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, any shares of Stock or any
securities convertible into or exercisable or exchangeable for Stock 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,
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 Representatives,
other than the Shares to be sold hereunder, any shares of Stock issued
upon the exercise or conversion of options, warrants or other securities
exercisable or exchangeable for or convertible into shares of Stock
outstanding on the date hereof and any shares of Stock issued under
existing equity compensation plans. Notwithstanding the foregoing, if
(1) during the last 17 days of the 180-day restricted period, the
Company issues an earnings release or material news or a material event
relating to the Company occurs; or (2) prior to the expiration of the
180-day restricted period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of
the 180-day restricted period, the restrictions imposed by this
Agreement shall continue to apply until the expiration of the 18-day
period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
-15-
(i) Use of Proceeds. The Company will apply the net proceeds from
the sale of the Shares as described in the Registration Statement, the
Time of Sale Information 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 of the price of the Stock in
violation of Regulation M under the Exchange Act or in any manipulation
of the price of the Stock.
(k) Exchange Listing. The Company will use its best efforts to
list the Stock on the Nasdaq Global Market.
(l) Reports. For a period of two years from the Closing Date, the
Company will furnish to the Representatives, as soon as they are
available, copies of all reports or other communications (financial or
other) furnished to holders of the Stock, and copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange or automatic quotation system, except to
the extent copies of such documents are available on ▇▇▇▇▇.
(m) Record Retention. The Company will retain, in accordance with
Rule 433 under the Securities Act, copies of each Issuer Free Writing
Prospectus that is not filed with the Commission.
(n) Filings. The Company will file with the Commission such
reports as may be required by Rule 463 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby
represents and agrees that:
(a) It has not 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 the Preliminary Prospectus or 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 4(c) above or (iii) any free writing prospectus prepared by such
Underwriter and approved by the Company in advance in writing (each such
free writing prospectus referred to in clause (i) or (iii), an
"Underwriter Free Writing Prospectus").
(b) It has not and will not distribute any Underwriter Free
Writing Prospectus referred to in clause (a)(i) in a manner reasonably
designed to lead to its broad unrestricted dissemination.
(c) It has not and will not use, without the prior written
consent of the Company, any free writing prospectus that contains the
final terms of the Shares unless such
-16-
terms have previously been included in a free writing prospectus filed
with the Commission; provided that Underwriters may use a term sheet
substantially in the form of Annex C hereto without the consent of the
Company; provided further that any 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.
(d) It will, pursuant to reasonable procedures developed in good
faith, retain copies of each free writing prospectus used or referred to
by it, in accordance with Rule 433 under the Securities Act.
(e) 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 each
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. The Registration
Statement (or if a post-effective amendment thereto is required to be
filed under the Securities Act, such post-effective amendment) shall
have become effective, and the Representatives shall have received
notice thereof, not later than 5:00 P.M., New York City time, on the
date hereof; 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 Company's 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
Representatives.
(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. Since the date of the most recent
financial statements of the Company included in the Registration
Statement, the Prospectus and the time of Sale Information, no event or
condition of a type described in Section 3(f) hereof shall have occurred
or shall exist, which event or condition is not described in the Time of
Sale Information (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 Representatives makes it
impracticable or inadvisable to proceed with
-17-
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 Registration Statement, the
Time of Sale Information and the Prospectus.
(d) Officer's Certificate. The Representatives 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
Representatives (i) confirming that such officers have carefully
reviewed the Registration Statement, the Time of Sale Information and
the Prospectus and, to the best knowledge of such officers, the
representations set forth in Sections 3(b) and 3(d) 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 such
Closing Date and (iii) to the effect set forth in paragraphs (a) and (c)
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 Representatives, at the request of
the Company, letters, dated the respective dates of delivery thereof and
addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, 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 in the Registration Statement,
the Time of Sale Information 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 of Counsel for the Company. ▇▇▇▇▇▇▇ Procter LLP,
counsel for the Company, shall have furnished to the Representatives, at
the request of the Company, their written opinion, dated the Closing
Date or the Additional Closing Date, as the case may be, and addressed
to the Underwriters, in form and substance reasonably satisfactory to
the Representatives, to the effect set forth in Exhibit A hereto.
(g) Opinion of General Counsel for the Company. R. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Esq., in his capacity as General Counsel for the Company and not in his
personal capacity, shall have furnished to the Representatives, 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
Underwriters, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Exhibit B hereto. The
Underwriters acknowledge and agree 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 of Counsel for the Underwriters. The Representatives
shall have received on and as of the Closing Date or the Additional
Closing Date, as the case may be, an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, counsel for the Underwriters, with respect to such matters as the
Representatives may reasonably request, and such counsel
-18-
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 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 Representatives 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
subsidiary 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 Global Market, subject to official
notice of issuance.
(l) Lock-up Agreements. The "lock-up" agreements, each
substantially in the form of Exhibit C 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) Charter and Bylaws. The Eighth Amended and Restated
Certificate of Incorporation of the Company (in substantially the form
filed as an Exhibit 3.2 to the Registration Statement shall be effective
and have been filed with the Secretary of State of Delaware.
(n) 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 Representatives such further certificates and documents
as the Representatives 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 Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, its affiliates, directors and officers and
each person, if any, who controls such 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
-19-
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 to make the statements
therein, not misleading, or (ii) 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 or any Time of Sale
Information (including any Time of Sale Information that has been subsequently
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 any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in subsection (b) below.
(b) Indemnification of the Company. Each Underwriter agrees, severally
and not jointly, 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 such Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use in the Registration Statement, the Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale
Information, it being understood and agreed upon that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the last sentence on the
front cover page relating to the delivery of the Shares and the information
contained in the fourth, eighth, ninth, tenth and fifteenth paragraphs under the
caption "Underwriting."
(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 this Section 7 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 this Section 7. 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
-20-
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 or (ii) the Indemnifying
Person has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding 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 any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be
designated in writing by the Representatives 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 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 Underwriters 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 Underwriters
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 Underwriters 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
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the total underwriting discounts received by the Underwriters 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 Underwriters 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
Underwriters 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 Underwriters 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 Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does not
take account of the equitable considerations referred to in 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
such Underwriter with respect to the offering of the Shares exceeds the amount
of any damages that such 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. The
Underwriters' obligations to contribute pursuant to this Section 7 are several
in proportion to their respective purchase obligations hereunder and not joint.
(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 Representatives, 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 (i) trading
generally shall have been suspended or materially limited on or by any of the
New York Stock Exchange or the Nasdaq Global Market; (ii) trading of any
securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities; or (iv) 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
Representatives, 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 Time of Sale Information
and the Prospectus.
-22-
10. Defaulting Underwriter.
(a) If, on the Closing Date or the Additional Closing Date, as the case
may be, any Underwriter defaults on its obligation to purchase the Shares that
it has agreed to purchase hereunder on such date, the non-defaulting
Underwriters may in their discretion arrange for the purchase of such Shares by
other persons satisfactory to the Company on the terms contained in this
Agreement. If, within 36 hours after any such default by any Underwriter, the
non-defaulting Underwriters do not arrange for the purchase of such Shares, then
the Company shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Underwriters to
purchase such Shares on such terms. If other persons become obligated or agree
to purchase the Shares of a defaulting Underwriter, either the non defaulting
Underwriters or the Company may postpone the Closing Date or the Additional
Closing Date, as the case may be, for up to five full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Underwriters may be necessary in the Registration Statement and the
Prospectus or in any other document or arrangement, and the Company agrees to
promptly prepare any amendment or supplement to the Registration Statement and
the Prospectus that effects any such changes. As used in this Agreement, the
term "Underwriter" includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 10, purchases Shares that a defaulting Underwriter
agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate
number of Shares that remain unpurchased on the Closing Date or the Additional
Closing Date, as the case may be, does not exceed one-eleventh of the aggregate
number of Shares to be purchased on such date, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number of
Shares that such Underwriter agreed to purchase hereunder on such date plus such
Underwriter's pro rata share (based on the number of Shares that such
Underwriter agreed to purchase on such date) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by the non-defaulting
Underwriters and the Company as provided in paragraph (a) above, the aggregate
number of Shares that remain unpurchased on the Closing Date or the Additional
Closing Date, as the case may be, exceeds one-eleventh of the aggregate amount
of Shares to be purchased on such date, or if the Company shall not exercise the
right described in paragraph (b) above, then this Agreement or, with respect to
any Additional Closing Date, the obligation of the Underwriters to purchase
Shares on the Additional Closing Date, as the case may be, shall terminate
without liability on the part of the non-defaulting Underwriters. Any
termination of this Agreement pursuant to this Section 10 shall be without
liability on the part of the Company, except that the Company will continue to
be liable for the payment of expenses as set forth in Section 11 hereof and
except that the provisions of Section 7 hereof shall not terminate and shall
remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company or any non-defaulting Underwriter for
damages caused by its default.
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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, the
Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale
Information and the Prospectus (including all exhibits, amendments and
supplements thereto) and the distribution thereof; (iii) the fees and expenses
of the Company's counsel and independent accountants; (iv) the fees and expenses
incurred in connection with the registration or qualification of the Shares
under the laws of such jurisdictions as the Representatives may designate
(including the related fees and expenses of counsel for the Underwriters); (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,
the National Association of Securities Dealers, Inc.; (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 Global Market. Except as provided in Section
7 and this Section 11, the Company shall not be responsible for the payment of
any expenses of the Underwriters, including fees and expenses of their counsel.
(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
Underwriters or (iii) the Underwriters decline to purchase the Shares for any
reason permitted under this Agreement, the Company agrees to reimburse the
Underwriters for all out-of-pocket costs and expenses (including the fees and
expenses of their counsel) reasonably incurred by the Underwriters 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 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 any 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 Underwriters
contained in this Agreement or made by or on behalf of the Company or the
Underwriters 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 Underwriters.
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
-24-
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) Authority of the Representatives. Any action by the Underwriters
hereunder may be taken by the Representatives on behalf of the Underwriters, and
any such action taken by the Representatives shall be binding upon the
Underwriters.
(b) 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 Underwriters
shall be given to the Representatives c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: (▇▇▇) ▇▇▇-▇▇▇▇); Attention: Equity
Syndicate Desk and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ with a copy to
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Fax: (▇▇▇) ▇▇▇-▇▇▇▇). Notices to the Company shall be
given to it at Insulet Corporation, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, (Fax: [ ]); Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., with a copy to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇ Procter LLP, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Fax: (▇▇▇) ▇▇▇-▇▇▇▇).
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) 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.
(e) 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.
(f) 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.
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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:
--------------------------------------
Name:
Title:
Accepted: __________, 2007
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For itself and on behalf of the several
Underwriters listed in Schedule 1 hereto.
By:
----------------------------------------
Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
For itself and on behalf of the several
Underwriters listed in Schedule 1 hereto.
By:
----------------------------------------
Authorized Signatory
-26-
Schedule 1
Underwriter Number of Shares
----------- ----------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. [ ]
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., [ ]
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC [ ]
Leerink ▇▇▇▇▇ & Co., Inc. [ ]
Total [ ]
----------------------