INSULET CORPORATION [ ] Shares of Common Stock Underwriting Agreement
Exhibit 1.1
INSULET CORPORATION
[ ] Shares of Common Stock
[ ], 2007
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
several Underwriters listed
in Schedule 1 hereto
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 X.X. Xxxxxx Securities Inc. (“JPMorgan”)
and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) are
acting as representatives (each a “Representative” and together, the “Representatives”), an
aggregate of [ ] shares of Common Stock, par value $0.001 per share, of the Company (the
“Underwritten Shares”). At the option of the Underwriters, the Company proposes to issue and sell
up to an additional [ ] shares of Common Stock of the Company (the “Option Shares”). The
Underwritten Shares and the Option Shares are herein referred to as the “Shares.” The shares of
Common Stock of the Company to be outstanding after giving effect to the sale of the Shares are
herein referred to as the “Stock.”
The Company and each Selling Stockholder hereby confirms its agreement with the several
Underwriters concerning the purchase and sale of the Underwritten Shares, and the Company hereby
confirms its agreement with the several Underwriters concerning the purchase and sale of the Option
Shares, as follows:
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 each prospectus included in such registration statement (and any amendments
thereto) before it became or becomes effective, any prospectus filed with the Commission pursuant
to Rule 424(a) under the Securities Act and the prospectus included in the Registration Statement
at the time of its effectiveness that omits Rule 430 Information, and the term “Prospectus” means
the prospectus in the form first used (or made available upon request of purchasers pursuant to
Rule 173 under the Securities Act) in connection with confirmation of sales of the Shares. Any
reference herein to the term “Registration Statement” shall be deemed to include the abbreviated
registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration Statement”). Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the Prospectus.
At the Time of Sale (as defined below), the Company had prepared the following information: a
Preliminary Prospectus dated [ ], 2007 and each “free writing prospectus” (as defined
pursuant to Rule 405 under the Securities Act) listed on Annex B hereto (collectively with the
pricing information set forth on Annex A hereto, the “Time of Sale Information”).
“Time of Sale” means [ ] (Eastern time) on the date of this Agreement.
(a) Each Selling Stockholder agrees, severally and not jointly, to sell the Underwritten
Shares to the several Underwriters as provided in this Agreement, and each Underwriter, on the
basis of the representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from each Selling
Stockholder at a purchase price per share of $[ ] (the “Purchase Price”) the number of
Underwritten Shares (to be adjusted by you so as to eliminate fractional shares) determined by
multiplying the aggregate number of Underwritten Shares to be sold by such Selling Stockholder as
set forth opposite its name in Schedule 2 hereto by a fraction, the numerator of which is the
aggregate number of Underwritten 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 Underwritten Shares to be purchased by all the Underwriters from all of the Selling
Stockholders hereunder.
In addition, the Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and the Underwriters, on the basis of the
representations, warranties and agreements herein contained and subject to the conditions set forth
herein, shall have the option to purchase, severally and not jointly, from the Company the Option
Shares at the Purchase Price.
If any Option Shares are to be purchased, the number of Option Shares to be purchased by each
Underwriter shall be the number of Option Shares which bears the same ratio to the aggregate number
of Option Shares being purchased as the number of Underwritten Shares set forth opposite the name
of such Underwriter in Schedule 1 hereto (or such number increased as set forth in Section 12
hereof) bears to the aggregate number of Underwritten Shares being pur-
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chased from the Selling Stockholders by the several Underwriters, subject, however, to such
adjustments to eliminate any fractional Shares as the Representatives in their sole discretion
shall make.
The Underwriters may exercise the option to purchase the Option Shares at any time in whole,
or from time to time in part, on or before the thirtieth day following the date of the Prospectus,
by written notice from the Representatives to the Company. Such notice shall set forth the
aggregate number of Option Shares as to which the option is being exercised and the date and time
when the Option Shares are to be delivered and paid for, which may be the same date and time as the
Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date or later than
the tenth full business day (as hereinafter defined) after the date of such notice (unless such
time and date are postponed in accordance with the provisions of Section 12 hereof). Any such
notice shall be given at least two business days prior to the date and time of delivery specified
therein.
(b) The Company and 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 Representatives is advisable, and initially to offer the Shares on the terms set forth in
the Prospectus. The Company and the Selling Stockholders acknowledge and agree that the
Underwriters may offer and sell Shares to or through any affiliate of an Underwriter and that any
such affiliate may offer and sell Shares purchased by it to or through any Underwriter.
(c) Payment for the Underwritten Shares and any Option Shares shall be made by wire transfer
in immediately available funds to the accounts specified to to the representatives by the
Attorneys-in-Fact (as defined below), in the case of the Underwritten Shares, and by the Company,
in the case of the Option Shares, at the offices of Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M., New York City time, on [ ], 2007, in the
case of the Underwritten Shares, or at such other time or place on the same or such other date, not
later than the fifth business day thereafter, as the Representatives and the Attorneys-in-Fact may
agree upon in writing or, in the case of the Option Shares, on the date and at the time and place
specified by the Representatives in the written notice of the Underwriters’ election to purchase
such Option Shares. The time and date of such payment for the Underwritten Shares is referred to
herein as the “Closing Date,” and the time and date for such payment for the Option Shares, if
other than the Closing Date, is herein referred to as the “Additional Closing Date.”
Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as
the case may be, shall be made against delivery through the facilities of The Depository Trust
Company (“DTC”) to the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date in definitive form registered in such names and in such
denominations as the Representatives shall request in writing not later than two full business days
prior to the Closing Date or the Additional Closing Date, as the case may be, with any transfer
taxes payable in connection with the sale of the Shares duly paid by the Company or the Selling
Stockholders, as applicable. Any certificates representing the Shares will be made available for
inspection and packaging by the Representatives at the office of DTC or its designated custodian
not later than 1:00 P.M., New York City time, on the business day prior to the Closing Date or the
Additional Closing Date, as the case may be.
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(d) The Company and each Selling Stockholder acknowledges and agrees that the Underwriters are
acting solely in the capacity of an arm’s length contractual counterparty to the Company and 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 Representatives 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.
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proved or referred to and will not prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or solicitation of an offer to buy the Shares (each such
communication by the Company or its agents and representatives (other than a communication
referred to in clause (i) below), an “Issuer Free Writing Prospectus”) other than (i) any
document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act
or Rule 134 under the Securities Act or (ii) the documents listed on Annex B hereto and
other written communications approved in writing in advance by the Representatives. Each
such Issuer Free Writing Prospectus complied in all material respects with the Securities
Act, has been filed in accordance with the Securities Act (to the extent required thereby)
and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to
delivery of, such Issuer Free Writing Prospectus and any other Issuer Free Writing
Prospectus filed in accordance with the Securities Act, did not, and at the Closing Date and
as of the Additional Closing Date, as the case may be, will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with
respect to any statements or omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives expressly for use in
any Issuer Free Writing Prospectus.
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terial respects, the financial position of the Company and its subsidiary as of the dates indicated and the
results of their operations and the changes in their cash flows for the periods specified;
such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis throughout the
periods covered thereby (except as otherwise noted therein), and any supporting schedules
included in the Registration Statement present fairly, in all material respects, the
information required to be stated therein; and the other financial information included in
the Registration Statement, the Time of Sale Information and the Prospectus has been derived
from the accounting records of the Company and its subsidiary and presents fairly, in all
material respects, the information shown thereby.
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(i) Underwriting Agreement. The Company has full right, power and authority to execute
and deliver this Agreement and to perform its obligations hereunder; and all action required
to be taken for the due and proper authorization, execution and delivery by it of this
Agreement and the consummation by it of the transactions contemplated hereby has been duly
and validly taken. This Agreement has been duly authorized, executed and delivered by the
Company.
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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.
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other documents that are required under the Securities Act to be filed as exhibits to the
Registration Statement or described in the Registration Statement or the Prospectus that are
not so filed as exhibits to the Registration Statement or described in the Registration
Statement, the Time of Sale Information and the Prospectus.
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as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment
Company Act”).
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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.
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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.
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been obtained; 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
Underwritten 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.
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ance upon information furnished to the Company by such Selling
Stockholder for inclusion in the Time of Sale Information.
(f) Free Writing Prospectus. Such Selling Stockholder (including its agents and
representatives, other than the Company or the Underwriters in their capacity as such) has
not used or referred to any “free writing prospectus” (as defined in Rule 405 under the
Securities Act) relating to the Shares, other than any Issuer Free Writing Prospectus listed
on Annex B or prepared pursuant to Section 3(c) or 5(c).
(h) Material Information. As of the date hereof and as of the Closing Date, the sale
of the Underwritten 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 Time of Sale Information or the Prospectus.
Each Selling Stockholder represents and warrants that certificates in negotiable form
representing all of the Underwritten Shares to be sold by such Selling Stockholder hereunder have
been placed in custody under a Custody Agreement relating to such Underwritten Shares, in the form
heretofore furnished to you, duly executed and delivered by such Selling Stockholder to the
Company, as custodian (the “Custodian”), and that such Selling Stockholder has duly executed and
delivered a Power of Attorney, in the form heretofore furnished to you, appointing the persons
indicated in Schedule 3 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 Underwritten 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, the Custody Agreement and the Power of Attorney.
Each Selling Stockholder agrees that the Underwritten 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
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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 Selling Stockholder agrees that the
obligations of such Selling Stockholder hereunder shall not be terminated by operation of law,
whether by the death or incapacity of such 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 such
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 Underwritten Shares hereunder, certificates representing such Underwritten 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.
(a) Required Filings. The Company will file the final Prospectus with the Commission
within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the
Securities Act and will file any Issuer Free Writing Prospectus (to the extent not
previously delivered) to the extent required by Rule 433 under the Securities Act. The
Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to
the extent not previously delivered) to the Underwriters in New York City as soon as
practicable following the date hereof, but in no event later than 10:00 A.M., New York City
time, on the second business day next succeeding the date of this Agreement in such
quantities as the Representatives may reasonably request.
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Prospectus, and before filing any amendment or supplement to the Registration Statement
or the Prospectus, the Company will furnish to the Representatives and counsel for the
Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement
for review and will not prepare, use, authorize, approve, refer to or file any such Issuer
Free Writing Prospectus or file any such amendment or supplement to which the
Representatives reasonably object.
(d) Notice to the Representatives. The Company will advise the Representatives
promptly, and, upon the request of the Representatives, will confirm such advice in writing,
(i) when the Registration Statement has become effective; (ii) when any amendment to the
Registration Statement has been filed or becomes effective; (iii) when any supplement to the
Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been
filed; (iv) of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or the receipt of any comments from the
Commission relating to the Registration Statement or any other request by the Commission for
any additional information; (v) of the issuance by the Commission of any order suspending
the effectiveness of the Registration Statement or preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding
for that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of
any event within the Prospectus Delivery Period as a result of which the Prospectus, the
Time of Sale Information or any Issuer Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances existing when the Prospectus, the Time of Sale
Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not
misleading; and (vii) of the receipt by the Company of any notice with respect to any
suspension of the qualification of the Shares for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and the Company will use its
best efforts to prevent the issuance of any such order suspending the effectiveness of the
Registration Statement, preventing or suspending the use of any Preliminary Prospectus or
the Prospectus or suspending any such qualification of the Shares and, if any such order is
issued, will obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance of the Prospectus. (1) If during the Prospectus Delivery Period
(i) any event shall occur or condition shall exist as a result of which the Prospectus as
then amended or supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light
of the circumstances existing when the Prospectus is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law,
the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission, and furnish to the Underwriters
and to such dealers as the Representatives may designate, such amendments or supplements to
the Prospectus as may be necessary so that the Prospectus as so amended or supplemented will
not include any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the
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light of the circumstances existing when the Prospectus as so amended or supplemented is
delivered to a purchaser, not misleading or so that the Prospectus will comply with law and
(2) if at any time prior to the Closing Date (i) any event shall occur or condition shall
exist as a result of which the Time of Sale Information as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances at the
Time of Sale, not misleading or (ii) it is necessary to amend or supplement the Time of Sale
Information to comply with law, the Company will immediately notify the Underwriters thereof
and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the
extent required) and furnish to the Underwriters, and to such dealers as the Representatives
may designate, such amendments or supplements to the Time of Sale Information as may be
necessary so that the Time of Sale Information as so amended or supplemented will not
include any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances existing at the
Time of Sale, not misleading or so that the Time of Sale Information will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and will continue such qualifications in effect so long as required for
distribution of the Shares.
(g) Earning Statement. The Company will make generally available to its security
holders and the Representatives as soon as practicable an earning statement that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months beginning with the first
fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158)
of the Registration Statement.
(h) Clear Market. For a period of 90 days after the date of the initial public
offering of the Shares, the Company will not (i) offer, pledge, announce the intention to
sell, sell, contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, any shares of Stock or any securities convertible into
or exercisable or exchangeable for Stock or (ii) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of the Stock,
whether any such transaction described in clause (i) or (ii) above is to be settled by
delivery of Stock or such other securities, in cash or otherwise, without the prior written
consent of the Representatives, other than the Shares to be sold hereunder, any shares of
Stock issued upon the exercise or conversion of options, warrants or other securities
exercisable or exchangeable for or convertible into shares of Stock outstanding on the date
hereof, any shares of Stock issued under existing equity compensation plans and any shares
of Stock (or options, warrants or convertible securities in respect thereof) issued in
connection with a bona fide merger or acquisition transaction. Notwithstanding the
foregoing, if (1) during the last 17 days of the 90-day restricted period, the Company
issues an earnings release or material news or a material event relating to the Company
occurs;
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or (2) prior to the expiration of the 90-day restricted period, the Company announces
that it will release earnings results during the 16-day period beginning on the last day of
the 90-day restricted period, the restrictions imposed by this Agreement shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event. In addition, the
Representatives hereby waive the similar clear market provisions contained in Section 4(h)
of that certain Underwriting Agreement, dated May 14, 2007, by and among the Company and the
several underwriters named therein to the extent necessary to permit the sale of any Shares
to be sold by the Company hereunder.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the
Option Shares sold by it hereunder as described in the Registration Statement, the Time of
Sale Information and the Prospectus under the heading “Use of Proceeds.”
(j) No Stabilization. The Company will not take, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization of
the price of the Stock in violation of Regulation M under the Exchange Act or in any
manipulation of the price of the Stock.
(k) Exchange Listing. The Company will use its best efforts to list the Stock on the
Nasdaq Global Market.
(l) Reports. For a period of two years from the Closing Date, the Company will furnish
to the Representatives, as soon as they are available, copies of all reports or other
communications (financial or other) furnished to holders of the Stock, and copies of any
reports and financial statements furnished to or filed with the Commission or any national
securities exchange or automatic quotation system, except to the extent copies of such
documents are available on XXXXX.
(m) Record Retention. The Company will retain, in accordance with Rule 433 under the
Securities Act, copies of each Issuer Free Writing Prospectus that is not filed with the
Commission.
(n) Filings. The Company will file with the Commission such reports as may be required
by Rule 463 under the Securities Act.
(a) Clear Market. Such Selling Stockholder shall be bound by the terms of the Lock-Up
Agreement set forth as Exhibit D hereto. In addition, the Representatives hereby waive the
provisions of such Lock-Up Agreement and of any existing lock-up agreement between the
Selling Stockholders and the Representatives to the extent necessary to permit the sale by
the Selling Stockholders of the Underwritten Shares hereunder.
(b) Tax Form. It will deliver to the Representatives prior to or at the Closing Date a
properly completed and executed United States Treasury Department Form W-9
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(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.
(a) It has not and will not use, authorize use of, refer to, or participate in the
planning for use of, any “free writing prospectus,” as defined in Rule 405 under the
Securities Act (which term includes use of any written information furnished to the
Commission by the Company and not incorporated by reference into the Registration Statement
and any press release issued by the Company), other than (i) a free writing prospectus that
contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act)
that was not included (including through incorporation by reference) in the Preliminary
Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free
Writing Prospectus listed on Annex B or prepared pursuant to Section 3(c) or 5(c) above or
(iii) any free writing prospectus prepared by such Underwriter and approved by the Company
in advance in writing (each such free writing prospectus referred to in clause (i) or (iii),
an “Underwriter Free Writing Prospectus”).
(b) It has not and will not distribute any Underwriter Free Writing Prospectus referred
to in clause (a)(i) in a manner reasonably designed to lead to its broad unrestricted
dissemination.
(c) It has not and will not use, without the prior written consent of the Company, any
free writing prospectus that contains the final terms of the Shares unless such terms have
previously been included in a free writing prospectus filed with the Commission;
provided that Underwriters may use a term sheet substantially in the form of Annex C
hereto without the consent of the Company; provided further that any
Underwriter using such term sheet shall notify the Company, and provide a copy of such term
sheet to the Company, prior to, or substantially concurrently with, the first use of such
term sheet.
(d) It will, pursuant to reasonable procedures developed in good faith, retain copies
of each free writing prospectus used or referred to by it, in accordance with Rule 433 under
the Securities Act.
(e) It is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering (and will promptly notify the Company if any such proceeding
against it is initiated during the Prospectus Delivery Period).
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(a) Registration Compliance; No Stop Order. The Registration Statement (or if a
post-effective amendment thereto is required to be filed under the Securities Act,
such post-effective amendment) shall have become effective, and the Representatives
shall have received notice thereof, not later than 5:00 P.M., New York City time, on the
date hereof; no order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceeding for such purpose or pursuant to Section 8A under the Securities
Act shall be pending before or, to the Company’s knowledge, threatened by the Commission;
the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the
Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to
the extent required by Rule 433 under the Securities Act) and in accordance with Section
5(a) hereof; and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The 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 or the Additional Closing Date, as the case
may be; and the statements of the Company and its officers and of each Selling Stockholder
made in any certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date or the Additional Closing Date, as the case may be.
(c) No Material Adverse Change. Since the date of the most recent financial statements
of the Company included in the Registration Statement, the Prospectus and the time of Sale
Information, no event or condition of a type described in Section 3(f) hereof shall have
occurred or shall exist, which event or condition is not described in the Time of Sale
Information (excluding any amendment or supplement thereto) and the Prospectus (excluding
any amendment or supplement thereto) and the effect of which in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Shares on the Closing Date or the Additional Closing Date, as the case may
be, on the terms and in the manner contemplated by this Agreement, the Registration
Statement, the Time of Sale Information and the Prospectus.
(d) Officer’s and Selling Stockholders’ Certificates. The Representatives shall have
received on and as of the Closing Date or the Additional Closing Date, as the case may be, a
certificate of the chief financial officer or chief accounting officer of the Company and
one additional senior executive officer of the Company who is satisfactory to the
Representatives (i) confirming that such officers have carefully reviewed the Registration
Statement, the Time of Sale Information and the Prospectus and, to the best knowledge of
such officers, the representations 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 such Closing Date and (iii) to the effect set forth in paragraphs (a) and (c)
above and a certificate of the Selling Stockholders, in form and substance reasonably
satisfactory to the Representatives, (A) confirming that the repre-
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sentations of such Selling Stockholders set forth in Sections 4(e), 4(f) and 4(g) 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 or the
Additional Closing Date, as the case may be, Ernst & Young LLP shall have furnished to the
Representatives, at the request of the Company, letters, dated the respective dates of
delivery thereof and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Representatives, containing statements and information of the type
customarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in the Registration
Statement, the Time of Sale Information and the Prospectus; provided, that the
letter delivered on the Closing Date or the Additional Closing Date, as the case may be,
shall use a “cut-off” date no more than three business days prior to such Closing Date or
such Additional Closing Date, as the case may be.
(f) Opinion of Counsel for the Company. Xxxxxxx Procter LLP, counsel for the Company,
shall have furnished to the Representatives, at the request of the Company, their written
opinion, dated the Closing Date or the Additional Closing Date, as the case may be, and
addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Exhibit A hereto.
(g) Opinion of General Counsel for the Company. R. Xxxxxxx Xxxxx, Esq., in his
capacity as General Counsel for the Company and not in his personal capacity, shall have
furnished to the Representatives, at the request of the Company, his written opinion, dated
the Closing Date or the Additional Closing Date, as the case may be, and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Representatives, to the
effect set forth in Exhibit B hereto. The Underwriters acknowledge and agree that such
General Counsel shall not have any personal liability in connection with or arising from the
delivery or content of such opinion.
(h) Opinion of Counsel for the Selling Stockholders. Counsel for each Selling
Stockholder shall have furnished to the Representatives, at the request of such Selling
Stockholder, its written opinion, dated the Closing Date and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representatives, to the effect set
forth in Exhibit C hereto.
(i) Opinion of Counsel for the Underwriters. The Representatives shall have received
on and as of the Closing Date or the Additional Closing Date, as the case may be, an opinion
of Xxxxxx Xxxxxx & Xxxxxxx llp, counsel for the Underwriters, with respect to such
matters as the Representatives 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.
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(j) No Legal Impediment to Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any federal, state
or foreign governmental or regulatory authority that would, as of the Closing Date or the
Additional Closing Date, as the case may be, prevent the issuance or sale of
the Shares; and no injunction or order of any federal, state or foreign court shall
have been issued that would, as of the Closing Date or the Additional Closing Date, as the
case may be, prevent the issuance or sale of the Shares.
(k) Good Standing. The Representatives shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, satisfactory evidence of the good
standing of the Company and its subsidiary in their respective jurisdictions of organization
and their good standing as foreign entities in the jurisdictions set forth on Annex D
hereto.
(l) Exchange Listing. The Shares to be delivered on the Closing Date or Additional
Closing Date, as the case may be, shall have been approved for listing on the Nasdaq Global
Market, subject to official notice of issuance.
(m) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of
Exhibit D hereto, between you and certain shareholders, officers and directors of the
Company relating to sales and certain other dispositions of shares of Stock or certain other
securities, delivered to you on or before the date hereof, shall be in full force and effect
on the Closing Date or Additional Closing Date, as the case may be.
(n) Additional Documents. On or prior to the Closing Date or the Additional Closing
Date, as the case may be, the Company and the Selling Stockholders shall have furnished to
the Representatives such further certificates and documents as the Representatives may
reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
(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 to make the statements therein,
not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus or any Time of Sale Information (including any
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Time of Sale Information that has been subsequently amended), or caused by any omission or alleged
omission to state therein a material
fact necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading, in each case except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representatives 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, or any information relating to any Selling Stockholder
furnished to the Company in writing by such Selling Stockholder expressly for use therein.
-24-
vided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under 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 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 or (ii)
the Indemnifying Person has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person. It is understood and agreed that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in addition to any local counsel)
for all Indemnified Persons, and that all such fees and expenses shall be paid or reimbursed as
they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and
officers and any control persons of such Underwriter shall be designated in writing by the
Representatives, 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 Attorneys-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 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.
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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 Company and the Selling
Stockholders from the sale of the Shares and the total underwriting discounts received by the
Underwriters in connection therewith, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate offering price of the Shares. The relative fault of the Company
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.
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11. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company and the Selling Stockholders, if after the execution and
delivery of this Agreement and prior to the Closing Date or, in the case of the Option Shares,
prior to the Additional Closing Date (i) trading generally shall have been suspended or materially
limited on or by any of the New York Stock Exchange or the Nasdaq Global Market; (ii) trading of
any securities issued or guaranteed by the Company shall have been suspended on any exchange
or in any over-the-counter market; (iii) a general moratorium on commercial banking
activities shall have been declared by federal or New York State authorities; or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States, that, in the judgment of the
Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with
the offering, sale or delivery of the Shares on the Closing Date or the Additional Closing Date, as
the case may be, on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
(a) If, on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the Shares that it has agreed to purchase
hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the
purchase of such Shares by other persons satisfactory to the Company 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 or the Additional Closing Date, as the case may be, for
up to five full business days in order to effect any changes that in the opinion of counsel for the
Company, 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 or the Additional Closing Date, as the case may be, does not exceed
one-eleventh of the aggregate number of Shares to be purchased on such date, then the Company 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
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Shares that such Underwriter agreed to purchase on such date) of the Shares of such defaulting Underwriter
or Underwriters for which such
arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company and the Selling
Stockholders as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be, exceeds
one-eleventh of the aggregate amount of Shares to be purchased on such date, or if the
Company and the Selling Stockholders shall not exercise the right described in paragraph (b)
above, then this Agreement or, with respect to any Additional Closing Date, the obligation of the
Underwriters to purchase Shares on the Additional Closing Date, as the case may be, shall terminate
without liability on the part of the non-defaulting Underwriters. Any termination of this
Agreement pursuant to this Section 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.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident
to the performance of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the Shares and any taxes
payable in that connection; (ii) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus, any Time of Sale Information and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii) the fees and expenses of
the Company’s counsel and independent accountants; (iv) the fees and expenses incurred in
connection with the registration or qualification of the Shares under the laws of such
jurisdictions as the Representatives may designate (including the related fees and expenses of
counsel for the Underwriters); (v) the cost of preparing stock certificates; (vi) the costs and
charges of any transfer agent and any registrar; (vii) all expenses and application fees incurred
in connection with any filing with, and clearance of the offering by, the National Association of
Securities Dealers, Inc.; (viii) all expenses incurred by the Company in connection with any “road
show” presentation to potential investors; and (ix) all expenses and application fees related to
the listing of the Shares on the Nasdaq Global Market. Except as provided in Section 9 and this
Section 13, the Company shall not be responsible for the payment of any expenses of the
Underwriters, including fees and expenses of their counsel.
(b) If (i) this Agreement is terminated pursuant to Section 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
ex-
-28-
penses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters
in connection with this Agreement and the offering contemplated hereby.
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; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o X.X.
Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000);
Attention: Equity Syndicate Desk and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 with a copy to Xxxxxx X.
Xxxxxxxxx, Esq., Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(Fax: (000) 000-0000). Notices to the Company and the Selling Stockholders shall be given to them
at Insulet Corporation, 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).
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
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-30-
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
Very truly yours, INSULET CORPORATION |
||||
By: | ||||
Name: | ||||
Title: | ||||
SELLING STOCKHOLDERS |
||||
By: | ||||
Name: | ||||
As Attorney-in-Fact acting on behalf of the Selling Stockholders named in Schedule 2 to this Agreement. |
Accepted: [ ], 2007
X.X. XXXXXX SECURITIES INC. For itself and on behalf of the several Underwriters listed in Schedule 1 hereto. |
||||
By: | ||||
Authorized Signatory | ||||
XXXXXXX XXXXX & CO. XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED For itself and on behalf of the several Underwriters listed in Schedule 1 hereto. |
||||
By: | ||||
Authorized Signatory | ||||
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Schedule 1
Underwriter | Number of Shares | |
X.X. Xxxxxx Securities Inc. |
||
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
||
[ ] |
||
[ ] |
||
Total |
||
Schedule 2
Selling Stockholders | Number of Underwritten Shares | |||
[ ] |
[ ] | |||
[ ] |
[ ] | |||
[ ] |
[ ] |
Schedule 3
Attorneys-in-Fact
Xxxxx XxXxxxx
Xxxxxxx Xxxxx