INSULET CORPORATION 1,153,420 Shares of common stock, par value $0.001 per share Underwriting Agreement
Exhibit 1.2
INSULET CORPORATION
1,153,420 Shares of common stock, par value $0.001 per share
Underwriting Agreement
June 23, 2011
X.X. Xxxxxx Securities LLC
As Representative of the
several Underwriters listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
As Representative of the
several Underwriters listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders named in Schedule 2 hereto (the “Selling Stockholders”) of Insulet
Corporation, a Delaware corporation (the “Company”), propose to sell to the several Underwriters
listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting as representative (the
“Representative”), an aggregate of 1,153,420 shares of common stock, par value $0.001 per share, of
the Company (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 and the Selling Stockholders hereby confirm their 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 on Form S-3 (File No. 333-174746), including a prospectus (the “Base Prospectus”),
relating to the securities to be offered and sold from time to time by the Selling Stockholders.
The Company has also filed with, or transmitted for filing to, or shall promptly hereafter file
with or transmit for filing to, the Commission a prospectus supplement relating specifically to the
underwritten offering and sale of Shares pursuant to Rule 424 under the Securities Act (the
“Prospectus Supplement”). 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”), is referred to herein as the “Registration Statement”; and as used herein, the term
“Preliminary Prospectus” means any preliminary prospectus supplement filed with the Commission
pursuant to Rule 424 under the Securities Act relating specifically to the Shares, together with
the Base Prospectus and the term “Prospectus” means the Base Prospectus as supplemented by the
Prospectus Supplement relating specifically to the underwritten offering and sale of 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 underwritten 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. Any
reference in this Agreement to the Registration Statement, the Base Prospectus, any Preliminary
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, Preliminary Prospectus or
the
Prospectus, as the case may be, and any reference to “amend”, “amendment” or “supplement” with
respect to the Registration Statement, the Base Prospectus, any Preliminary 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 set forth on Annex B, the “Pricing
Disclosure Package”): a Base Prospectus dated June 6, 2011, a Preliminary Prospectus dated June 22,
2011, and each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act)
listed on Annex B hereto.
“Applicable Time” means 4:30 P.M., New York City time, on June 23, 2011.
2. Purchase of the Shares by the Underwriters.
(a) Each of the Selling Stockholders agrees, severally and not jointly, to sell the 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 each of the Selling Stockholders at a
purchase price per share of $18.5838 (the “Purchase Price”) the number of Shares (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying the aggregate number of Shares
to be sold by each of the Selling Stockholders as set forth opposite their respective names in
Schedule 2 hereto by a fraction, the numerator of which is the aggregate number of Shares to be
purchased by such Underwriter as set forth opposite the name of such Underwriter in Schedule 1
hereto and the denominator of which is the aggregate number of Shares to be purchased by all the
Underwriters from all of the Selling Stockholders hereunder.
(b) The Selling Stockholders understand 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
Representative is advisable, and initially to offer the Shares on the terms set forth in the
Prospectus. The Selling Stockholders acknowledge and agree that the Underwriters 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 Attorneys-in-Fact (as defined below) to the Representative at the
offices of Xxxxx Xxxx & Xxxxxxxx LLP at 10:00 A.M. New York City time on June 29, 2011, or at such
other time or place on the same or such other date, not later than the fifth business day
thereafter, as the Representative and the Attorneys-in-Fact may agree upon in writing. The time
and date of such payment is referred to herein as the “Closing Date”.
Payment for the Shares shall be made on the Closing Date against delivery to the
Representative for the respective accounts of the several Underwriters of the Shares with any
transfer taxes payable in connection with the sale of such Shares duly paid by the Selling
Stockholders. Delivery of the Shares shall be made through the facilities of The Depository Trust
Company (“DTC”) unless the Representative shall otherwise instruct. The certificates for the Shares
will be made available for inspection and packaging by the Representative 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.
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(d) Each of the Company and the Selling Stockholders acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the
Selling Stockholders 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, the Selling Stockholders or any other person.
Additionally, neither the Representative nor any other Underwriter is advising the Company, the
Selling Stockholders or any other person as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction. The Company and the Selling Stockholders shall consult with their own
advisors concerning such matters and shall be responsible for making their own independent
investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall
have no responsibility or liability to the Company or the Selling Stockholders with respect
thereto. Any review by the Underwriters of the Company, the transactions 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 or the Selling Stockholders.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter and the Selling Stockholders that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus
included in the Pricing Disclosure Package, at the time of filing thereof, complied in all
material respects with the Securities Act, and no Preliminary Prospectus, at the time of
filing thereof, contained any untrue statement of a material fact or omitted 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 Representative expressly for use in
any Preliminary Prospectus, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in Section 9(c)
hereof.
(b) Pricing Disclosure Package. The Pricing Disclosure Package as of the Applicable
Time did not, and as of the Closing Date 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
Representative expressly for use in such Pricing Disclosure Package, it being understood and
agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 9(c) hereof.
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, 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,
used, authorized, approved or referred to and will not prepare, 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, each
electronic road show and any other written communications
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approved in writing in advance by the Representative. Each such Issuer Free Writing
Prospectus complied in all material respects with the Securities Act, has been or will be
(within the time period specified in Rule 433) 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, did
not, and as of the Closing Date 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 or Preliminary Prospectus in reliance upon
and in conformity with information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative expressly for use in such Issuer Free
Writing Prospectus or Preliminary Prospectus, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information described as such
in Section 9(c) hereof.
(d) Registration Statement and Prospectus. The Registration Statement is an “automatic
shelf registration statement” as defined under Rule 405 of the Securities Act that has been
filed with the Commission not earlier than three years prior to the date hereof; and no
notice of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has
been received by the Company. 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 knowledge of the Company, threatened by the Commission;
as of the applicable effective date of the Registration Statement and any post-effective
amendment thereto, the Registration Statement and any such post-effective amendment 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 in order 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 the Prospectus will not contain 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 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 Representative expressly for use in the Registration Statement and
the Prospectus and any amendment or supplement thereto, it being understood and agreed that
the only such information furnished by any Underwriter consists of the information described
as such in Section 9(c) hereof.
(e) Incorporated Documents. The documents incorporated by reference in the
Registration Statement, the Prospectus and the Pricing Disclosure Package, when they became
effective or were filed with the Commission, as the case may be, conformed in all material
respects to the requirements of the Securities Act or the Exchange Act, as applicable, 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 become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and will not contain any untrue statement
of a material fact or omit to state a material fact necessary
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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; the financial
statements (including the related notes thereto) of Neighborhood Holdings, Inc. (the
“Target”) 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 Target 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; all 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; 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 respective accounting
records of the Company and its consolidated subsidiaries and the Target and its consolidated
subsidiaries, as the case may be, and presents fairly the information shown thereby; and the
pro forma financial information and the related notes thereto included or
incorporated by reference in the Registration Statement, the Pricing Disclosure Package and
the Prospectus have been prepared in accordance with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and the assumptions underlying such
pro forma financial information are reasonable.
(g) No Material Adverse Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, (i) there has not been any material change in
the capital stock (other than the issuance of shares of common stock in connection with the
Company’s acquisition of the Target as described or incorporated by reference in, 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 or incorporated by reference in, the Registration Statement, the Pricing
Disclosure Package and the Prospectus), short-term debt or long-term debt of the Company or
any of 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, with the exception of the Company’s acquisition
of the Target as described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, 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 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
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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 each of 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 (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.,
Insulet MA Securities Corporation, Insulet Singapore Private Limited, Neighborhood Holdings,
Inc., Neighborhood Diabetes, Inc., Xxxxxxxxx Chemists, Inc. and New York Diabetic Supply
Corp. The Target and Neighborhood Diabetes, Inc. are the only significant subsidiaries (as
defined in Rule 1-02(w) of Regulation S-X) of the Company.
(i) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of capital stock of the Company (including the
Shares to be sold by the Selling Stockholders) 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 any
of 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 any such
subsidiary, 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 each subsidiary owned, directly or indirectly, by 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 and its subsidiaries (the
“Company Stock Plans”), (i) 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)
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and any required stockholder approval by the necessary number of votes or
written consents, and the award agreement governing such grant (if 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 any other exchange on which Company
securities are traded, and (iv) each such grant was properly accounted for in accordance
with U.S. generally accepted accounting principles in the financial statements (including
the related notes) of the Company and disclosed in the Company’s 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) 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 any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the Company or any of
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.
(n) No Conflicts. The execution, delivery and performance by the Company of this
Agreement and the consummation by the Company 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 any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of 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 any of 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 such conflict,
breach, violation or default that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
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(o) 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 and
the consummation by the Company of the transactions contemplated by this Agreement, except
for the registration of the Shares under the Securities Act 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.
(p) 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 any of its
subsidiaries is or may be a party or to which any property of the Company or any of its
subsidiaries is or may be the subject that, individually or in the aggregate, if determined
adversely to the Company or any of 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.
(q) Independent Accountants. Ernst & Young LLP, who have 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; and Xxxxx Xxxxxx Xxxxxxx LLC, who
have certified certain financial statements of Target, is an independent public accounting
firm with respect to the Target 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.
(r) 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.
(s) 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 names, trademark registrations, service xxxx registrations, copyrights,
licenses and know-how
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(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, and the conduct of their respective businesses will not conflict
in any material respect with any such rights of others and (ii) 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.
(t) No Undisclosed Relationships. No relationship, direct or indirect, exists between
or among the Company or any of its subsidiaries, 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 any of 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.
(u) 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 (collectively, the “Investment Company Act”).
(v) 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 any of 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.
(w) 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 reasonably be expected to have a Material Adverse Effect.
(x) No Labor Disputes. No labor disturbance by or dispute with employees of the
Company or any of 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
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dispute with, the employees of the Company or its subsidiaries, except as would not
have a Material Adverse Effect.
(y) Compliance with and Liability Under Environmental Laws. (i) The Company and its
subsidiaries (w) are in compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, requirements, decisions, judgments, decrees 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”), (x)
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, (y) have not received notice of any actual or potential
liability relating to the investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or contaminants, and (z) are not a party
to any order, decree or agreement that imposes any obligation or liability under any
Environmental Law, 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 (i)
and (ii) 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.
(z) Compliance with ERISA. (i) Each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
for which the Company or any member of its “Controlled Group” (defined as any organization
which is a member of a controlled group of corporations within the meaning of Section 414 of
the Code”) would have any liability (each, a “Plan”) has been maintained 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, except for noncompliance that would not
reasonably be expected to result in material liability to the Company or its subsidiaries;
(ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975
of the Code, has occurred with respect to any Plan excluding transactions effected pursuant
to a statutory or administrative exemption that could reasonably be expected to result in a
material liability to the Company or its subsidiaries; (iii) for each Plan that is subject
to the funding rules of Section 412 of the Code or Section 302 of ERISA, the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA, as applicable, has been
satisfied (without taking into account any waiver thereof or extension of any amortization
period) and is reasonably expected to be satisfied in the future (without taking into
account any waiver thereof or extension of any amortization period); (iv) the fair market
value of the assets of each Plan exceeds the present value of all benefits accrued under
such Plan (determined based on those assumptions used to fund such Plan); (v) no “reportable
event” (within the meaning of Section 4043(c) of ERISA) has occurred or is reasonably
expected to occur that either has resulted, or could reasonably be expected to result, in
material liability to the Company or its subsidiaries; (vi) neither the Company nor any
member of the Controlled Group has incurred, nor reasonably expects to incur, any liability
under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC, in
the ordinary course and without default) in respect of a Plan (including a “multiemployer
plan”, within the meaning of Section 4001(a)(3) of ERISA); and (vii) there is no pending
audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the
Pension Benefit Guaranty Corporation or any other governmental agency or any foreign
regulatory agency with respect to any Plan that could reasonably be expected to result in
material liability to the Company or its subsidiaries.
(aa) 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
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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 Commission’s rules and
forms, including controls and procedures designed to ensure that such information is
accumulated and communicated to the Company’s 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.
(bb) Accounting Controls. The Company and its subsidiaries maintain systems of
“internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange
Act) 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.
(cc) Insurance. The Company and its subsidiaries have insurance covering their
respective properties, operations, personnel and businesses, 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.
(dd) 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 any of 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.
(ee) 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 any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
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(ff) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the Company
or any of 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.
(gg) No Restrictions on Subsidiaries. Except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, no subsidiary of the Company
is 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.
(hh) No Broker’s 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 any of its subsidiaries or any
Underwriter for a brokerage commission, finder’s fee or like payment in connection with the
offering and sale of the Shares.
(ii) No Registration Rights. No person has the right to require the Company or any of
its subsidiaries to register any securities for sale under the Securities Act by reason of
the filing of the Registration Statement with the Commission or, to the knowledge of the
Company, the sale of the Shares to be sold by the Selling Stockholders hereunder.
(jj) 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.
(kk) Business with Cuba. The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida, as amended) relating to doing
business with the Government of Cuba or with any person or affiliate located in Cuba.
(ll) 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.
(mm) 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 Pricing Disclosure Package and the Prospectus is not
based on or derived from sources that are reliable and accurate in all material respects.
(nn) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Company
or any of the Company’s directors or officers, in their capacities as such, to comply with
any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(oo) 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
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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,” and is a “well-known seasoned issuer”, in each case 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.
(pp) 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 in Rule 15c3-1(c)(2)(vi)(F) under the Exchange
Act.
4. Representations and Warranties of the Selling Stockholders. Each of the Selling
Stockholders severally represents and warrants to each Underwriter and the Company that:
(a) Required Consents; Authority. All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Stockholder of this Agreement and
the Power of Attorney (the “Power of Attorney”) and the Custody Agreement (the “Custody
Agreement”) hereinafter referred to, and for the sale and delivery of the Shares to be sold
by such Selling Stockholder hereunder, have been obtained, except for the registration under
the Act of the Shares and such consents, approvals, authorizations and orders as may be
required under state securities or Blue Sky laws; and such Selling Stockholder has full
right, power and authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement and to sell, assign, transfer and deliver the Shares to be sold by such
Selling Stockholder hereunder; this Agreement, the Power of Attorney and the Custody
Agreement have each been duly authorized, executed and delivered by such Selling
Stockholder.
(b) Residence; Organization. If such Selling Stockholder is a natural person, such
Selling Stockholder (other than Xxxxxxx Xxxxxx, who is a resident in the State of Florida)
is a resident in the Commonwealth of Massachusetts and if such Selling Stockholder is an
entity, such Selling Stockholder has been duly organized and is validly existing and in good
standing under the laws of the State of Delaware.
(c) No Conflicts. The execution, delivery and performance by such Selling Stockholder
of this Agreement, the Power of Attorney and the Custody Agreement, the sale of the Shares
to be sold by such Selling Stockholder and the consummation by such Selling Stockholder of
the transactions contemplated herein or therein 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 such Selling Stockholder pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Selling Stockholder is a party or
by which such Selling Stockholder is bound or to which any of the property or assets of such
Selling Stockholder is subject, (ii) if such Selling Stockholder is an entity, result in any
violation of the provisions of the charter or by-laws or partnership or limited liability
company agreement or similar organizational documents of such Selling Stockholder 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 agency, except in each case as would
not adversely affect the ability of such Selling Stockholder to consummate the transactions
contemplated by this Agreement.
(d) Title to Shares. Such Selling Stockholder has good and valid title to the Shares
to be sold at the Closing Date by such Selling Stockholder hereunder free and clear of all
liens,
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encumbrances, equities or adverse claims; such Selling Stockholder will have,
immediately prior to the Closing Date good and valid title to the Shares to be sold at the
Closing Date by such Selling Stockholder, free and clear of all liens, encumbrances,
equities or adverse claims; and, upon delivery of the Shares to the underwriters through the
facilities of DTC and payment therefor pursuant hereto, good and valid title to such Shares,
free and clear of all liens, encumbrances, equities or adverse claims, will pass to the
several Underwriters.
(e) No Stabilization. Such Selling Stockholder has not taken and 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 Shares.
(f) Pricing Disclosure Package. The Pricing Disclosure Package, at the Applicable Time
did not, and at the Closing Date 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, however,
that such Selling Stockholder’s representation under this Section 4(f) shall only apply to
any untrue statement of a material fact or omission to state a material fact made in
reliance upon and in conformity with any information relating to such Selling Stockholder
furnished to the Company by such Selling Stockholder expressly for use in such Pricing
Disclosure Package or any amendment or supplement thereto, it being understood that the only
such information consists of the information under the caption “Selling Stockholders”
appearing in each of the Base Prospectus and the Prospectus Supplement.
(g) Issuer Free Writing Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, such Selling Stockholder (including its agents
and representatives, other than the Underwriters in their capacity as such) has not made,
used, prepared, authorized, approved or referred to and will not prepare, make, use,
authorize, approve or refer to any 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, each
electronic road show and any other written communications approved in writing in advance by
the Company and the Representative.
(h) Registration Statement and Prospectus. As of the applicable effective date of the
Registration Statement and any post-effective amendment thereto, the Registration Statement
and any such post-effective amendment 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 in order 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 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, however, that such Selling Stockholder’s representation
under this Section 4(h) shall only apply to any untrue statement of a material fact or
omission to state a material fact made in reliance upon and in conformity with any
information relating to such Selling Stockholder furnished to the Company by such Selling
Stockholder expressly for use in the Registration Statement or the Prospectus, or any
amendment or supplement thereto, it being understood that the only such information consists
of the information under the caption “Selling Stockholders” appearing in each of the Base
Prospectus and the Prospectus Supplement.
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(i) Material Information. As of the date hereof and as of the Closing Date, the sale
of the Shares by such Selling Stockholder is not and will not be prompted by any material
information concerning the Company which is not set forth in the Registration Statement, the
Pricing Disclosure Package or the Prospectus.
Each of the Selling Stockholders severally, and not jointly, represents and warrants that
certificates in negotiable form representing all of the Shares to be sold by such Selling
Stockholders hereunder have been placed in custody under a Custody Agreement relating to such
Shares, in the form heretofore furnished to you, duly executed and delivered by such Selling
Stockholder to Computershare, Inc., as custodian (the “Custodian”), and that such Selling
Stockholder has duly executed and delivered Powers of Attorney, in the form heretofore furnished to
you, appointing the person or persons indicated in Schedule 2 hereto, and each of them, as such
Selling Stockholder’s Attorneys-in-fact (the “Attorneys-in-Fact” or any one of them the
“Attorney-in Fact”) with authority to execute and deliver this Agreement on behalf of such Selling
Stockholder, to determine the purchase price to be paid by the Underwriters to the Selling
Stockholders as provided herein, to authorize the delivery of the Shares to be sold by such Selling
Stockholder hereunder and otherwise to act on behalf of such Selling Stockholder in connection with
the transactions contemplated by this Agreement and the Custody Agreement.
Each of the Selling Stockholders specifically severally, and not jointly, agrees that the
Shares represented by the certificates held in custody for such Selling Stockholder under the
Custody Agreement, are subject to the interests of the Underwriters hereunder, and that the
arrangements made by such Selling Stockholder for such custody, and the appointment by such Selling
Stockholder of the Attorneys-in-Fact by the Power of Attorney, are to that extent irrevocable.
Each of the Selling Stockholders specifically agrees that the obligations of such Selling
Stockholder hereunder shall not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Stockholder, or, in the case of an estate or trust, by the
death or incapacity of any executor or trustee or the termination of such estate or trust, or in
the case of a partnership, corporation or similar organization, by the dissolution of such
partnership, corporation or organization, or by the occurrence of any other event. If any
individual Selling Stockholder or any such executor or trustee should die or become incapacitated,
or if any such estate or trust should be terminated, or if any such partnership, corporation or
similar organization should be dissolved, or if any other such event should occur, before the
delivery of the Shares hereunder, certificates representing such Shares shall be delivered by or on
behalf of such Selling Stockholder in accordance with the terms and conditions of this Agreement
and the Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to the Powers of
Attorney shall be as valid as if such death, incapacity, termination, dissolution or other event
had not occurred, regardless of whether or not the Custodian, the Attorneys-in-Fact, or any of
them, shall have received notice of such death, incapacity, termination, dissolution or other
event.
5. 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, will file any Issuer Free Writing Prospectus (including the term sheet
substantially in the form of Annex C hereto) 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
Underwriters in New York City prior to 10:00 A.M., New York City time, on the business
day next
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succeeding the date of this Agreement in such quantities as the Representative may
reasonably request. The Company will pay the registration fee for this offering within the
time period required by Rule 456(b)(1) under the Securities Act (without giving effect to
the proviso therein) and in any event prior to the Closing Date.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the
Representative, 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 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 Representative 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 making,
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 Representative and counsel for the
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 proposed amendment or supplement to which the
Representative reasonably objects.
(d) Notice to the Representative. The Company will advise the Representative 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
Preliminary Prospectus, 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 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 Pricing Disclosure Package or any such Issuer Free Writing Prospectus is
delivered to a purchaser, not misleading; (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 Preliminary Prospectus, any of the
Pricing Disclosure Package or the Prospectus or suspending any
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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 required to be stated therein or 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 Representative 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 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 Representative 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 Representative 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 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 Representative 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” (as defined in Rule 158) of the Registration Statement.
(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
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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 Representative, other than (A) the Shares to be offered and
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
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 existing at the date hereof, (E) the shares of Stock of the Company issued upon
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 on Form S-8 relating to inducement grants made by the Company prior
to the date hereof and (H) the Company’s convertible senior notes due 2016 convertible into
shares of Stock of the Company, which may be issued, offered and sold concurrently with the
offering and sale of the Shares, pursuant to a registration statement on Form S-3 (File No.
333-175067) (the “Convertible Notes”), and any shares of Stock of the Company issuable upon
the conversion of the Convertible Notes.
(i) 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.
(j) Exchange Listing. The Company will use its best efforts to list for quotation the
Shares on the Nasdaq Market.
(k) Reports. For a period of two years from the Closing Date, as soon as they are
available, the Company will furnish to the Representative 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 Representative to the extent they are filed on the
Commission’s Electronic Data Gathering, Analysis, and Retrieval system.
(l) 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.
6. Further Agreements of the Selling Stockholders. Each of the Selling Stockholders
covenants and agrees with each Underwriter that:
(a) Clear Market. For a period of 90 days after the date of the initial public
offering of the Shares, such Selling Stockholder 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, any shares of Stock or any securities convertible into or
exercisable or exchangeable for Stock (including without limitation, Stock or such other
securities which may be deemed to be beneficially owned by such Selling Stockholder in
accordance with the rules and regulations of the Commission and securities which may be
issued upon exercise of a stock option or warrant), or publicly disclose the intention to
make any offer, sale, pledge or disposition, (ii) enter into any swap or other agreement
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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 or (iii) make any demand for or exercise any right with respect to the
registration of any shares of Stock or any security convertible into or exercisable or
exchangeable for Stock without the prior written consent of the Representative, in each case
other than the Shares to be sold by such Selling Stockholder hereunder.
(b) Tax Form. It will deliver to the Representative prior to or at the Closing Date a
properly completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by the Treasury Department regulations in lieu
thereof) in order to facilitate the Underwriters’ documentation of their compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982
with respect to the transactions herein contemplated.
7. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(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 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 Section 5(c) above (including any electronic
road show), 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
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 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.
(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).
8. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Shares on the Closing Date as provided herein is subject to the
performance by the Company and each of the Selling Stockholders of their respective 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, pursuant
to
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Rule 401(g)(2) 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 5(a) hereof; and all
requests by the Commission for additional information shall have been complied with to the
reasonable satisfaction of the Representative.
(b) Representations and Warranties. The respective representations and warranties of
the Company and the Selling Stockholders contained herein shall be true and correct on the
date hereof and on and as of the Closing Date and the statements of the Company and its
officers and of each of the Selling Stockholders made in any certificates delivered pursuant
to this Agreement shall be true and correct on and as of the Closing Date.
(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 Representative makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Shares on the Closing Date on the terms and in the manner
contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(d) Officer’s Certificate. The Representative shall have received on and as of the
Closing Date a certificate of: (1) 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 Representative (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 of the Company 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 the Closing Date and (iii) to the effect set forth in
paragraphs (a) and (c) above; and (2) of the Selling Stockholders, in form and substance
reasonably satisfactory to the Representative, (A) confirming that the representations of
such Selling Stockholders set forth in Sections 4(f), 4(g) and 4(h) hereof are true and
correct and (B) confirming that the other representations and warranties of such Selling
Stockholders in this agreement are true and correct and that the such Selling Stockholders
have complied with all agreements and satisfied all conditions on their part to be performed
or satisfied hereunder at or prior to such Closing Date.
(e) Comfort Letters. On the date of this Agreement and on the Closing Date Ernst &
Young LLP and Xxxxx Xxxxxx Xxxxxxx LLC shall each have furnished to the Representative, 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
Representative, 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 shall use a “cut-off” date no more than three business
days prior to such Closing Date.
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(f) Opinion and 10b-5 Statement of Counsel for the Company. Xxxxxxx Procter LLP,
counsel for the Company, shall have furnished to the Representative, at the request of the
Company, their written opinion and 10b-5 statement, dated the Closing Date and addressed to
the Underwriters, in form and substance reasonably satisfactory to the Representative, to
the effect set forth in Annex A-1 hereto in the case of the opinion letter and Annex A-2
hereto in the case of the 10b-5 statement.
(g) Opinion of General Counsel for the Company. R. Xxxxxxx Xxxxx, Esq., in his
capacity as General Counsel for the Company and not in his personal capacity, shall have
furnished to the Representative, at the request of the Company, his written opinion, dated
the Closing Date and addressed to the Representative, substantially in the form set forth in
Annex A-3 hereto. The Representative 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 of Counsel for the Selling Stockholders. Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and
Xxxx LLP, counsel for the Selling Stockholders (other than Salix Ventures II, L.P. and Salix
Affiliates II, L.P.), and Xxxxx Xxxxxxx LLP for Salix Ventures II, L.P. and Salix Affiliates
II, L.P. shall have furnished to the Representative, at the request of the Selling
Stockholders, their written opinions, dated the Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Representative, to the
effect set forth in Annex A-4 hereto.
(i) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representative
shall have received on and as of the Closing Date an opinion and 10b-5 statement of Xxxxx
Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, with respect to such matters as the
Representative 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.
(j) No Legal Impediment to Sale. 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 prevent the
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 prevent the sale of the Shares.
(k) Good Standing. The Representative shall have received on and as of the Closing
Date 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 in Annex D.
(l) Exchange Listing. The Shares to be delivered on the Closing Date shall have been
approved for listing on the Nasdaq Market, subject to official notice of issuance.
(m) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of
Exhibit A hereto, between you and 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 in full force and effect on the Closing Date.
(n) Additional Documents. On or prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to the Representative such further certificates and
documents as the Representative may reasonably request.
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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.
9. Indemnification and Contribution.
(a) Indemnification of the Underwriters by the Company. 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
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, (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 required to be stated therein or 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 (c) below.
(b) Indemnification of the Underwriters by the Selling Stockholders. Each of the Selling
Stockholders severally, and not jointly, in proportion to the number of Shares to be sold by such
Selling Stockholder hereunder 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 to the same
extent as the indemnity set forth in paragraph (a) above, provided, however, that each Selling
Stockholder’s agreement to indemnify and hold harmless hereunder shall only apply 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 such Selling Stockholder or the Target furnished to the Company by such
Selling Stockholder 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 (including any Pricing Disclosure Package that has subsequently been amended); it being
understood that the only such information consists of the information under the caption “Selling
Stockholders” appearing in each of the Base Prospectus and the Prospectus Supplement; provided that
the liability of any Selling Stockholder pursuant to this subsection (b) shall not exceed the
product of the number of Shares sold by such Selling Stockholder and the initial public offering
price of the Shares as set forth in the Prospectus.
(c) Indemnification of the Company and the Selling Stockholders. 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 and each of the
Selling Stockholders
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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 Representative 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 any Underwriter consists of the following information in the Prospectus Supplement
furnished on behalf of each Underwriter: the concession and reallowance figures appearing in the
third paragraph under the caption “Underwriting”.
(d) 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 the preceding paragraphs of this Section
9, 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 the
preceding paragraphs of this Section 9 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 the preceding paragraphs of this Section 9.
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. 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 any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by X.X. Xxxxxx Securities LLC, 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 and any such separate firm for the Selling Stockholders shall
be designated in writing by the Attorney-in-Fact. 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
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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.
(e) Contribution. If the indemnification provided for in paragraphs (a), (b) and (c) 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 and the
Selling Stockholders, 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 and the Selling Stockholders, 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 and the Selling Stockholders, 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 Selling Stockholders from the sale of the
Shares and the total underwriting discounts and commissions 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 and the Selling
Stockholders, 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 and the Selling Stockholders or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
(f) Limitation on Liability. The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Selling Stockholders or 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 (e) above. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (e) 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 9, (i) 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 and (ii)
the liability of a Selling Stockholder shall not exceed the product of the number of Shares sold by
such Selling Stockholder and the initial public offering price of the Shares as set forth in the
Prospectus. 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
9 are several in proportion to their respective purchase obligations hereunder and not joint.
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(g) Non-Exclusive Remedies. The remedies provided for in this Section 9 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.
10. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
11. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company and the Selling Stockholders, if after the execution and
delivery of this Agreement and prior to the 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 Stock
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 Representative, 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 on the terms and
in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
12. Defaulting Underwriter.
(a) If, on the Closing Date 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 and
the Selling Stockholders 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 and the Selling Stockholders 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 and the
Selling Stockholders may postpone the Closing Date for up to five full business days in order to
effect any changes that in the opinion of counsel for the Company, counsel for the Selling
Stockholders 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 12, 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, the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date does not exceed one-eleventh of the aggregate number of Shares to
be purchased on such date, then the Company and the Selling Stockholders 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.
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(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, the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date exceeds one-eleventh of the aggregate amount of Shares to be
purchased on such date, or if the Company and the Selling Stockholders shall not exercise the right
described in paragraph (b) above, then this Agreement shall terminate without liability on the part
of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 12
shall be without liability on the part of the Company and the Selling Stockholders, except that the
Company will continue to be liable for the payment of expenses as set forth in Section 13 hereof
and except that the provisions of Section 9 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, the Selling Stockholders or any non-defaulting Underwriter for damages caused
by its default.
13. 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 Pricing Disclosure Package 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 state or foreign
securities or blue sky laws of such jurisdictions as the Representative may designate (including
the related fees and expenses of counsel for the Underwriters, up to a maximum of $10,000); (v) the
cost of preparing stock certificates; (vi) the costs and charges of any transfer agent and any
registrar; (vii) all expenses incurred by the Company in connection with any “road show”
presentation to potential investors; and (viii) all expenses and application fees related to the
listing of the Shares on the Nasdaq Market.
(b) If (i) this Agreement is terminated pursuant to Section 11, (ii) the Company or the
Selling Stockholders for any reason fail 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.
14. 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 9 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.
15. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Selling Stockholders and the Underwriters contained
in this Agreement or made by or on behalf of the Company, the Selling Stockholders or the
Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive
the delivery of and payment for the Shares and
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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, the Selling Stockholders or the Underwriters.
16. 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; (c) the term “subsidiary” has the meaning set forth in Rule
405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set forth
in Rule 1-02 of Regulation S-X under the Exchange Act.
17. Miscellaneous.
(a) Authority of the Representative. Any action by the Underwriters hereunder may be taken by
X.X. Xxxxxx Securities LLC on behalf of the Underwriters, and any such action taken by X.X. Xxxxxx
Securities LLC 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 Representative c/o X.X.
Xxxxxx Securities LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000);
Attention: Equity Syndicate Desk. Notices to the Company shall be given to it at 0 Xxx Xxxx
Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, (fax: (000) 000-0000); Attention: R. Xxxxxxx Xxxxx, Esq. with
a copy to Xxxxxxx X. Xxxxxx, Esq. Xxxxxxx Procter LLP, Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(fax: (000) 000-0000). Notices to the Selling Stockholders shall be given to the Attorneys-in-Fact
at Salix Ventures, 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 (fax: 000-000-0000);
Attention: Xxxxxxxxxxx Xxxxx Jr. and Neighborhood Holdings, Inc., 00 Xxxxxxxxxxxx Xxxxxx, Xxxxxx,
XX 00000; Attention: Xxxxxx Xxxxxx (fax: 000-000-0000).
(c) 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.
(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: | /s/ Xxxxx XxXxxxx | |||
| Name: | Xxxxx XxXxxxx | |||
| Title: | Chief Executive Officer | |||
| SELLING STOCKHOLDERS |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Attorney-in-Fact | |||
| By: | /s/ Xxxxxxxxxx Xxxxx, Xx. | |||
| Name: | Xxxxxxxxxx Xxxxx, Xx. | |||
| Title: | Attorney-in-Fact | |||
| As Attorneys-in-Fact acting on behalf of each of the Selling Stockholders named in Schedule 2 to this Agreement. |
||||
Accepted: June 23, 2011
| X.X. XXXXXX SECURITIES LLC |
For itself and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
several Underwriters listed
in Schedule 1 hereto.
By |
/s/ Xxxxx X. Xxxx | |||
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Schedule 1
| Underwriter | Number of Shares | |||
X.X. Xxxxxx Securities LLC |
768,947 | |||
Canaccord Genuity Inc. |
384,473 | |||
Total |
1,153,420 | |||
Schedule 2
| Number of | ||||
| Selling Stockholder | Shares: | |||
Salix Ventures II, L.P. |
419,074 | |||
Salix Affiliates II, L.P. |
19,860 | |||
Xxxxxxx X. Xxxxxx |
238,396 | |||
Xxxxxx X. Xxxxxx |
223,396 | |||
Xxxxxxxx Xxxxxxxx |
105,000 | |||
Xxxxx X. Xxxxxxxx, Xx. |
124,211 | |||
Xxxxxxx Xxxxxx |
23,483 | |||
Total |
1,153,420 | |||
Annex B
a. Pricing Disclosure Package
Base Prospectus dated June 6, 2011, Preliminary Prospectus dated June 22, 2011 and the free
writing prospectus attached as Annex C hereto.
b. Pricing Information Provided Orally by Underwriters
None.
Annex C
Insulet Corporation
Pricing Term Sheet
Issuer Free Writing Prospectus
Filed Pursuant to Rule 433
Registration Statement No. 333-174746
Supplementing the Preliminary
Prospectus Supplement dated June 22, 2011
(To Prospectus dated June 6, 2011)
Filed Pursuant to Rule 433
Registration Statement No. 333-174746
Supplementing the Preliminary
Prospectus Supplement dated June 22, 2011
(To Prospectus dated June 6, 2011)
PRICING TERM SHEET
DATED JUNE 23, 2011
DATED JUNE 23, 2011
INSULET CORPORATION LOGO)"/>
INSULET CORPORATION
1,153,420 SHARES OF COMMON STOCK
The information in this pricing term sheet supplements Insulet Corporation’s
preliminary prospectus supplement dated June 22, 2011 (the “Preliminary Prospectus
Supplement”) and the accompanying prospectus dated June 6, 2011 (the “Prospectus”) relating
to the offering by certain stockholders of Insulet Corporation (the “selling stockholders”)
of Insulet Corporation common stock, $0.001 par value per share (the “Common Stock”), and
supersedes the information in the Preliminary Prospectus Supplement and the Prospectus to
the extent inconsistent with the information in the Preliminary Prospectus Supplement and
the Prospectus. In all other respects, this term sheet is qualified in its entirety by
reference to the Preliminary Prospectus Supplement, including all other documents
incorporated by reference therein, and the Prospectus. References to “we,” “our,” “us” and
“the Company” refer only to Insulet Corporation and not to its consolidated subsidiaries.
Terms used herein but not defined herein shall have the respective meanings as set forth in
the Preliminary Prospectus Supplement. All references to dollar amounts are references to
U.S. dollars.
Securities:
|
Common Stock | |
Ticker
|
XXXX | |
Public offering price:
|
$19.77 per share / $22,803,113.40 total | |
Underwriting discount:
|
$1.1862 per share / $1,368,186.80 total | |
Sole Book-running
manager:
|
X.X. Xxxxxx Securities LLC | |
Lead manager:
|
Canaccord Genuity Inc. | |
Pricing date:
|
June 23, 2011 | |
Trade date:
|
June 24, 2011 | |
Expected settlement date:
|
June 29, 2011 (T+3) |
Listing:
|
The NASDAQ Global Market | |
Convertible Notes Offering:
|
Concurrently with this offering, we are making a public offering of $125 million principal amount of convertible senior notes (the “convertible notes”) (or up to $143.75 million principal amount of such convertible notes if the underwriter for such offering exercises its over-allotment option in full) by means of a separate prospectus. The consummation of this offering of Common Stock by the selling stockholders and the concurrent convertible notes offering are not contingent on each other. | |
Net proceeds:
|
We will not receive any proceeds from the offering of shares by the selling stockholders. We estimate that the net proceeds from the concurrent convertible notes offering will be approximately $120.8 million (or $139.0 million if the underwriter exercises its option to purchase additional convertible notes in full), after deducting the underwriter’s discounts and estimated offering expenses from the offering of the convertible notes. In addition, pursuant to the terms of the Acquisition Agreement (as defined in the Preliminary Prospectus Supplement), we have agreed to reimburse the selling stockholders for underwriters’ discounts and pay expenses related to this offering, which we estimate will amount to $1.5 million. | |
Use of proceeds:
|
We will use approximately $85 million of the net proceeds from the concurrent convertible notes offering to purchase approximately $70 million face amount of our outstanding 5.375% convertible senior notes due 2013 pursuant to individually negotiated transactions through X.X. Xxxxxx Securities LLC as our agent concurrently with the concurrent convertible notes offering. We intend to use the remainder of the net proceeds from such offering for general corporate purposes. |
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Capitalization
The following table sets forth our cash and cash equivalents and capitalization as of March
31, 2011:
| • | on an actual basis, | ||
| • | on a pro forma basis to give effect to the consummation of the Acquisition as if it had occurred on March 31, 2011; and | ||
| • | on a pro forma as adjusted basis to give effect to the sale of the convertible notes by us in the concurrent convertible notes offering (assuming the underwriter for such offering does not exercise its option to purchase additional convertible notes), the application of the net proceeds therefrom as described in “Use of proceeds” in this pricing term sheet, the consummation of the Acquisition and the offering by the selling stockholders. |
You should read this table in conjunction with “Use of proceeds” and “Unaudited pro forma condensed
combined financial statements” in the Preliminary Prospectus Supplement as well as “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and our consolidated
financial statements and the related notes thereto, each of which is incorporated by reference into
the Preliminary Prospectus Supplement from our Quarterly Report on Form 10-Q for the three months
ended March 31, 2011 and Neighborhood Diabetes’ consolidated financial statements and related notes
thereto, incorporated by reference into the Preliminary Prospectus Supplement from our Current
Report on Form 8-K, filed by us with the SEC on June 7, 2011.
| As of March 31, 2011 | ||||||||||||
| Pro forma for the acquisi- |
Pro Forma as | |||||||||||
| (in thousands, except share amounts) | Actual | tion | Adjusted | |||||||||
Cash and cash equivalents |
$ | 104,488 | $ | 66,696 | $ | 100,941 | (1) | |||||
5.375% convertible senior notes due 2013(2)(3) |
85,000 | 85,000 | 15,000 | |||||||||
Convertible notes offered in the concurrent convertible notes offering(3) |
— | — | 125,000 | |||||||||
Other long-term liabilities(4) |
1,492 | 1,581 | 1,581 | |||||||||
Stockholders’ equity: |
||||||||||||
Preferred stock, $0.001 par value per share;
5,000,000 shares authorized; no shares issued
and outstanding, actual, pro forma for the Acquisition and pro forma as adjusted |
— | — | — | |||||||||
Common stock, $0.001 par value per share;
100,000,000 shares authorized; 45,829,569 shares
issued and outstanding, actual; 47,027,200 shares
issued and outstanding, pro forma for the Acquisition and pro forma as adjusted |
46 | 47 | 47 | |||||||||
Additional paid-in capital |
453,435 | 477,865 | 477,757 | |||||||||
Accumulated deficit |
(393,701 | ) | (397,166 | ) | (397,166 | ) | ||||||
Total stockholders’ equity |
59,780 | 80,746 | 80,638 | |||||||||
Total capitalization |
$ | 146,272 | $ | 167,327 | $ | 222,219 | ||||||
| (1) | Includes the estimated net proceeds of the sale of the convertible notes in the concurrent convertible notes offering (net of underwriter’s discounts and estimated offering expenses from the offering of the convertible notes as described in “Net proceeds” in this pricing term sheet) of $120.8 million. We intend to use approximately |
-3-
| $85 million of the net proceeds of the concurrent convertible notes offering to purchase approximately $70 million face amount of our outstanding 5.375% convertible senior notes due 2013 concurrently with such offering pursuant to individually negotiated transactions, and to use the remainder of the net proceeds from the convertible notes offering for general corporate purposes. In addition, this reflects our reimbursement of estimated underwriting discounts and expenses approximately $1.5 million in connection with this offering. | ||
| (2) | In June 2008, we privately placed $85.0 million of our 5.375% convertible senior notes due 2013. See “Description of other material indebtedness.” | |
| (3) | In accordance with ASC 470-20, convertible debt that may be wholly or partially settled in cash is required to be separated into a liability and an equity component, such that interest expense reflects the issuer’s non-convertible debt interest rate. Upon issuance of the convertible notes pursuant to the concurrent convertible notes offering, a debt discount will be recognized as a decrease in debt and an increase in equity. The debt component will accrete up to the principal amount over the expected term of the debt. ASC 470-20 does not affect the actual amount that we are required to repay, and the amount shown in the table above for our 5.375% convertible senior notes due 2013 and the convertible notes offered in the concurrent convertible notes offering is the aggregate principal amount of the convertible notes and does not reflect the debt discount, fees and expenses that we have recognized with respect to our 5.375% convertible senior notes or will be required to recognize with respect to the convertible notes offered in the concurrent convertible notes offering. | |
| (4) | Represents the non-current portion of an agreement fee we received in March 2008 in connection with an amendment to the development and license agreement between us and Xxxxxx Diabetes Care, Inc. See note 2 to our consolidated financial statements for the three month period ended March 31, 2011 incorporated by reference herein. The “pro forma” adjustment represents the fair value of the potential additional cash consideration required under the terms of the Acquisition Agreement. |
This communication shall not constitute an offer to sell or the solicitation of any offer to
buy, nor shall there be any sale of the securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to the registration or qualification under the
securities laws of any such jurisdiction.
The Issuer has filed a registration statement (including a prospectus dated June 6, 2011 and a
preliminary prospectus supplement dated June 22, 2011) with the Securities and Exchange Commission,
or SEC, for the offering to which this communication relates. Before you invest, you should read
the prospectus in that registration statement, the preliminary prospectus supplement dated June 22,
2011 and other documents the Issuer has filed with the SEC for more complete information about the
Issuer and the offering. You may get these documents for free by visiting XXXXX on the SEC website
at xxx.xxx.xxx. Alternatively, copies may be obtained from X.X. Xxxxxx Securities LLC, c/o
Broadridge Financial Solutions, 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxx XX 00000, Attention: Prospectus
Department, or by calling (000) 000-0000.
This communication should be read in conjunction with the prospectus dated June 6, 2011 and
the preliminary prospectus supplement dated June 22, 2011. The information in this communication
supersedes the information in the preliminary prospectus supplement and the accompanying prospectus
to the extent inconsistent with the information in such preliminary prospectus supplement and the
accompanying prospectus.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS
COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY
GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
-4-
Annex D
| Foreign Jurisdiction(s) | ||||
| Name of the Company | State of Incorporation | in which Qualified | ||
Insulet Corporation
|
Delaware | Massachusetts |
| State/Jurisdiction of | Foreign Jurisdiction(s) in which | |||
| Name of Subsidiary | Incorporation | Subsidiary Is Qualified | ||
Sub-Q Solutions, Inc.
|
Delaware | Massachusetts | ||
Insulet MA Securities
Corporation
|
Massachusetts | N/A | ||
Neighborhood Holdings, Inc.
|
Delaware | Massachusetts | ||
Neighborhood Diabetes, Inc.
|
Massachusetts | Connecticut, Florida, Georgia, Maine, New Hampshire, New York, Pennsylvania, Rhode Island |
||
Xxxxxxxxx Chemists, Inc.
|
New York | N/A | ||
New York Diabetic Supply
Corp.
|
New York | N/A |
Exhibit A
FORM OF LOCK-UP AGREEMENT
June 23, 2011
X.X. XXXXXX SECURITIES LLC
As Representative of
the several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
As Representative of
the several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Insulet Corporation — Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as Representative of the several Underwriters, propose
to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Insulet Corporation, a
Delaware corporation (the “Company”) and the Selling Stockholders listed on Schedule 2 to the
Underwriting Agreement, providing for the public offering (the “Public Offering”) by the several
Underwriters named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of Common
Stock (as defined below) of the Company (the “Securities”). Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of
the Securities, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees that, without the prior written consent of X.X. Xxxxxx
Securities LLC on behalf of the Underwriters, the undersigned will not, during the period ending 90
days after the date of the final prospectus relating to the Public Offering (the “Prospectus”), (1)
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, any shares of common stock, $0.001 per share par value, of the
Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable for
Common Stock (including without limitation, Common Stock or such other securities which may be
deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of
the Securities and Exchange Commission and securities which may be issued upon exercise of a stock
option or warrant), or publicly disclose the intention to make any offer, sale, pledge or
disposition, (2) enter into any swap or other agreement that transfers, in whole or in part, any of
the economic consequences of ownership of the Common Stock or such other securities, whether any
such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock
or such other securities, in cash or otherwise or (3) make any demand for or exercise any right
with respect to the registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock.
Notwithstanding the foregoing, the undersigned may transfer the undersigned’s shares of Common
Stock or securities convertible into or exchangeable for Common Stock (i) pursuant to a Rule 10b5-l
Trading Plan of the undersigned in effect on the date hereof, (ii) as a bona fide gift or gifts or
by will or intestacy, (iii) to any trust for the direct or indirect benefit of the undersigned or
the immediate family of the undersigned, (iv) if the undersigned is a corporation, to an
“affiliate,” as such term is defined in Rule
501(a) of the General Rules and Regulations under the Securities Act of 1933, as amended, (v)
if the undersigned is a limited liability company, to a member or affiliated limited liability
company, (vi) if the undersigned is a partnership, to a partner or affiliated partnership or (vii)
if the undersigned is a trust, to its trustees, beneficiaries or settlors; provided that in the
case of clauses (ii) through (vii), (A) it shall be a condition to the transfer that the donee or
transferee execute an agreement stating that the donee or transferee is receiving and holding such
Common Stock subject to the provisions of this Letter Agreement and there shall be no further
transfer of such Common Stock except in accordance with this Letter Agreement, (B) any such
transfer shall not involve a disposition for value, (C) no filing or other public announcement by
any party (donor, donee, transferor, transferee, pledgor or pledgee) under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) shall be required or shall be voluntarily made in
connection with such transfer or distribution (other than a filing on a Form 5, Schedule 13D,
Schedule 13G or other filing made after the expiration of the 90-day period referred to above) and
(D) each party (donor, donee, transferor, transferee, pledgor or pledgee) shall not be required by
law (including without limitation the disclosure requirements of the Securities Act of 1933, as
amended, and the Exchange Act) to make, and shall agree to not voluntarily make, any public
announcement of the transfer or disposition. For purposes of this Letter Agreement, “immediate
family” shall mean any relationship by blood, marriage or adoption, not more remote than first
cousin.
In addition, notwithstanding the foregoing, the undersigned may enter into a new 10b5-1
Trading Plan so long as (a) the undersigned will not, during the period ending 90 days after the
date of the final prospectus relating to the Public Offering (the “Prospectus”), (1) 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, any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (including without limitation, Common Stock or such other securities
which may be deemed to be beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and securities which may be issued upon
exercise of a stock option or warrant), or publicly disclose the intention to make any offer, sale,
pledge or disposition, (2) enter into any swap or other agreement that transfers, in whole or in
part, any of the economic consequences of ownership of the Common Stock or such other securities,
whether any such transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise or (3) make any demand for or exercise
any right with respect to the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock and (b) no filing or other public
announcement by any party (donor, donee, transferor, transferee, pledgor or pledgee) under the
Exchange Act shall be required or shall be voluntarily made in connection with such entry into a
new 10b5-1 Trading Plan.
Notwithstanding the foregoing, nothing in this Letter Agreement will prohibit (i) any exercise
(including a cashless exercise) of options or warrants to purchase Common Stock or securities
convertible into or exchangeable for Common Stock or the conversion or exchange of any equity
security held by the undersigned into Common Stock; provided that any Common Stock received upon
such exercise, conversion or exchange will be subject to this Letter Agreement, or (ii) any
transaction with respect to shares of Common Stock acquired in the Public Offering or in market
transactions after completion of the Public Offering.
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the
registration or transfer of the securities described herein, are hereby authorized to decline to
make any transfer of securities if such transfer would constitute a violation or breach of this
Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations
-2-
of the undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, upon the earliest to occur, if any, of (i) the Underwriting
Agreement has not been executed before July 31, 2011, (ii) the Underwriting Agreement (other than
the provisions thereof which survive termination) terminates or has been terminated prior to
payment for and delivery of the Securities to be sold thereunder, or (iii) either the Underwriters
or the Selling Stockholders advise the other parties in writing, prior to the execution of the
Underwriting Agreement, that they have determined not to proceed with the Public Offering, the
undersigned shall be automatically released from all obligations under this Letter Agreement. The
undersigned understands that the Underwriters are entering into the Underwriting Agreement and
proceeding with the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement and any claim, controversy or dispute arising under or related to this
Letter Agreement shall be governed by and construed in accordance with the laws of the State of New
York, without regard to the conflict of laws principles thereof.
| Very truly yours, [NAME OF STOCKHOLDER] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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