Contract
Exhibit 10.2
This Amendment to Facility Agreement (the “Facility Amendment”) contains representations and
warranties that the Lenders (“Lenders”) and Insulet Corporation (“Insulet”) made to each other.
These representations and warranties were made only for the purposes of the signing of the Facility
Amendment and solely for the benefit of the Lenders and Insulet as of specific dates, may be
subject to important limitations and qualifications agreed to by the Lenders and Insulet in
connection with the signing of the Facility Amendment, and may not be complete. Furthermore, these
representations and warranties may have been made for the purposes of allocating contractual risk
between the Lenders and Insulet instead of establishing these matters as facts, and may or may not
have been accurate as of any specific date and do not purport to be accurate as of the date of the
filing of the Facility Amendment by Insulet with the Securities and Exchange Commission.
Accordingly, you should not rely upon the representations and warranties contained in the Facility
Amendment as characterizations of the actual state of facts, since they were intended to be for the
benefit of, and to be limited to, the Lenders and Insulet.
AMENDMENT TO FACILITY AGREEMENT
AMENDMENT dated September 25, 2009 (this “Amendment”) to the FACILITY AGREEMENT (the
“Agreement”), dated as of March 13, 2009 (the “Agreement Date”), between Insulet
Corporation, a Delaware corporation (the “Borrower”), and those lenders set forth on the
signature page hereof (individually, a “Lender” and together, the “Lenders” and,
collectively with the Borrower, the “Parties”), pursuant to which the Lenders agreed to
lend to the Borrower up to $60,000,000, subject to the terms and conditions set forth in the
Agreement. Capitalized terms used but not otherwise defined herein shall have the respective
meanings assigned to them in the Agreement.
W I T N E S S E T H:
WHEREAS, on March 31, 2009, the Borrower borrowed from the Lenders an initial Disbursement of
$27,500,000 pursuant to the Agreement (the “Outstanding Principal Amount”);
WHEREAS, on the date hereof the Borrower and the Lenders have entered into a Securities
Purchase Agreement (the “SPA”), pursuant to which the Lenders have agreed to purchase from
the Borrower, and the Borrower has agreed to issue and sell to the Lenders, shares of the
Borrower’s Common Stock;
WHEREAS, concurrently with the Closing (as defined in the SPA), the Borrower and the Lenders
desire that the following events will occur: (i) the Borrower will prepay in full the Outstanding
Principal Amount and accrued and unpaid interest thereon to such date, (ii) the Notes issued on
March 13, 2009 by the Borrower to the Lenders in the Outstanding Principal Amount (the
“Original Notes”) will be cancelled and (iii) notwithstanding anything in the Agreement to
the contrary, the Lenders will effect a Disbursement of $32,500,000 to the Borrower pursuant to the
Agreement; and
WHEREAS, in connection with the foregoing, the Parties desire to amend the Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, the Lenders and
the Borrower agree as follows:
1. Concurrently with the Closing: (a) the Borrower shall prepay in full the Outstanding
Principal Amount and accrued and unpaid interest thereon to such date, and upon
receipt of such
prepayment, the Lenders shall cancel the Original Notes; and (b) notwithstanding anything in the
Agreement to the contrary, the Lenders will effect a Disbursement (the “New Disbursement”)
of $32,500,000 (the “New Principal Amount”) to the Borrower pursuant to the Agreement, and
the Borrower shall deliver to the Lenders Notes for the New Principal Amount in the form attached
hereto as Exhibit A.
2. Effective as of the Closing:
(a) The definition of Interest Rate set forth in the Agreement is amended and restated
in its entirety to read as follows: “8.5% simple interest per annum, payable on the
outstanding principal amount of each of the Notes.”
(b) The definition of Loan set forth in the Agreement is amended to read as follows:
“means the loan to be made available by the Lenders to the Borrower pursuant to Section 2.2
in the amount of thirty-two million five hundred thousand Dollars ($32,500,000)”.
(c) The definition of Notes in the Agreement is amended and restated in its entirety to
read as follows: “means the notes issued to the Lenders evidencing the Loan in the form
attached hereto as Exhibit A.”
(d) Section 2.2 of the Agreement (“Disbursements”) is amended and restated in its
entirety to read as follows: “Upon the Closing (as defined in that certain Securities
Purchase Agreement, dated as of September 25, 2009, by and among the Borrower and the
Lenders), the Lenders agree to advance to the Borrower the amount of the Loan (the
“Disbursement”).
(e) The last sentence of Section 2.3 of the Agreement (“Payments”) is amended to read
as follows: “Except in the event that the Lenders deliver a Put Notice to the Borrower in
accordance with the terms of Section 5.4 of the Agreement, in which case the terms of
Section 5.4 of the Agreement shall apply and no additional amounts per this Section 2.3
shall be due and payable, the Borrower may prepay the Loan at any time upon payment of the
principal amount outstanding and accrued and unpaid interest thereon to the date of
prepayment plus if such prepayment is effected (a) from the date hereof to April 18, 2010,
5% of such principal amount, (b) from April 19, 2010 to October 18, 2010, 4% of such
principal amount, (c) from October 19, 2010 to April 18, 2011, 3% of such principal amount,
(d) from April 19, 2011 to October 18, 2011, 2% of such principal amount, and (e) from and
after October 19, 2011, zero.”
(f) Section 2.7 of the Agreement (“Costs, Expenses and Losses”) is amended and restated
in its entirety to read as follows: “If, as a result of any failure by the Borrower to pay
any sums due under this Agreement on the due date therefor (after the expiration of any
applicable grace periods), the Lenders shall incur costs, expenses and/or losses, by reason
of the liquidation or redeployment of deposits from third parties or in connection with
obtaining funds to maintain any Disbursement, the Borrower shall pay to the Lenders upon
request by the Lenders, the amount of such costs, expenses and/or losses within fifteen (15)
days after receipt by it of a certificate from the Lenders setting
forth in reasonable
detail such costs, expenses and/or losses, along with supporting documentation. For the
purposes of the preceding sentence, “costs, expenses and/or losses” shall include, without
limitation, any interest paid or payable to carry any unpaid amount and any loss, premium,
penalty or expense which may be incurred in obtaining, liquidating or employing deposits of
or borrowings from third parties in order to make, maintain or fund the Loan or any portion
thereof.”
(g) Sections 2.9(b) and 2.9(c) (“Delivery of Warrants”) and 2.9(B) (“Commitment to
Provide Funding Fee”) of the Agreement are deleted.
(h) Section 5.5 of the Agreement (“General Acceleration Provision upon Events of
Default”) is amended to delete the phrase “cancel the Borrower’s right to request
Disbursements and” from the first sentence thereof.
(i) Schedule 2 to the Agreement is deleted.
(j) Exhibit A to the Agreement is replaced by Exhibit A attached
hereto.
(k) Exhibit B to the Agreement is deleted.
3. Notwithstanding anything in the Agreement to the contrary, the Borrower’s ability to issue
Disbursement Requests shall terminate as of the date of this Amendment.
4. Except as amended by this Amendment, the Agreement remains in full force and effect.
5. The Borrower hereby certifies to the Lenders that the representations and warranties in
Article 3 of the Agreement are true in all material respects on the date hereof with the same
effect as though such representations and warranties had been made on today’s date.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned Lender and the Borrowers have caused this Amendment
to be duly executed as of the date first written above.
| BORROWER: INSULET CORPORATION |
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| By: | /s/ Xxxxx XxXxxxx | |||
| Name: | Xxxxx XxXxxxx | |||
| Title: | Chief Executive Officer | |||
| LENDERS: DEERFIELD PRIVATE DESIGN FUND, L.P. |
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| By: | Deerfield Capital, L.P., its General Partner | |||
| By: | X.X. Xxxxx Capital LLC, its General Partner | |||
| By: | /s/Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Its: | President | |||
| DEERFIELD PRIVATE DESIGN INTERNATIONAL, L.P. |
||||
| By: | Deerfield Capital, L.P., its General Partner | |||
| By: | X.X. Xxxxx Capital LLC, its General Partner | |||
| By: | /s/Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Its: | President | |||
| DEERFIELD PARTNERS, L.P. |
||||
| By: | Deerfield Capital, L.P., its General Partner | |||
| By: | X.X. Xxxxx Capital LLC, its General Partner | |||
| By: | /s/Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Its: | President | |||
| DEERFIELD INTERNATIONAL LIMITED |
||||
| By: | /s/Xxxxx X. Xxxxx | |||
| Name: | Xxxxx X. Xxxxx | |||
| Its: | Authorized Signatory | |||
Exhibit A (“Form of Note”) to the Amendment to Facility Agreement has been omitted in accordance
with Item 601(b)(2) of Regulation S-K. Insulet Corporation will furnish supplementally a copy of
the omitted exhibit to the Securities and Exchange Commission upon request; provided, however, that
Insulet Corporation may request confidential treatment pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934, as amended, for any exhibit so furnished.
