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:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement (File No. 333-[ ]), including a prospectus, relating to the Shares. Such
registration statement, as amended at the time it became or becomes effective, including the
information, if any, deemed pursuant to Rule 430A, 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 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.
2. Purchase of the Shares by the Underwriters.
(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.
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 distributed to prospective purchasers has been issued by the
Commission, and each such Preliminary Prospectus, at the time of filing thereof, complied in
all material respects with the Securities Act and did not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any such Preliminary Prospectus.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale, did
not, and, at the Closing Date and as of the Additional Closing Date, as the case may be,
will not, contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in reliance
upon and in conformity with information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in such Time of
Sale Information. No statement of material fact that will be included in the Prospectus is
not included in the Time of Sale Information, and no statement of material fact included in
the Time of Sale Information that is required by the Securities Act to be included in the
Prospectus will be omitted therefrom.
(c) Issuer Free Writing Prospectus. Other than the Preliminary Prospectus and the
Prospectus, the Company (including its agents and representatives, other than the
Underwriters in their capacity as such) has not prepared, made, used, authorized, ap-
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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.
(d) Registration Statement and Prospectus. The Registration Statement has been
declared effective by the Commission. No order suspending the effectiveness of the
Registration Statement has been issued by the Commission and no proceeding for that purpose
or pursuant to Section 8A of the Securities Act against the Company or related to the
offering of the Shares has been initiated or, to the Company’s knowledge, threatened by the
Commission; as of the applicable effective date of the Registration Statement and any
amendment thereto, the Registration Statement complied and will comply in all material
respects with the Securities Act, and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and as of the date of the Prospectus and any
amendment or supplement thereto and as of the Closing Date and as of the Additional Closing
Date, as the case may be, the Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided
that the Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement and the Prospectus and any
amendment or supplement thereto.
(e) Financial Statements. The financial statements and the related notes thereto of
the Company and its consolidated subsidiary included in the Registration Statement, the Time
of Sale Information and the Prospectus comply in all material respects with the applicable
requirements of the Securities Act and present fairly, in all ma-
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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.
(f) No Material Adverse Change. Since the date of the most recent financial statements
of the Company included in the Registration Statement, the Time of Sale Information and the
Prospectus, (i) there has not been any material change in the capital stock or long-term
debt of the Company or its subsidiary, or any dividend or distribution of any kind declared,
set aside for payment, paid or made by the Company on any class of capital stock, or any
material adverse change, or any development involving a prospective material adverse change,
in or affecting the business, properties, management, financial position, stockholders’
equity, results of operations or prospects of the Company and its subsidiary taken as a
whole; (ii) neither the Company nor its subsidiary has entered into any transaction or
agreement that is material to the Company and its subsidiary taken as a whole or incurred
any liability or obligation, direct or contingent, that is material to the Company and its
subsidiary taken as a whole; and (iii) neither the Company nor its subsidiary has sustained
any material loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor disturbance or dispute or
any action, order or decree of any court or arbitrator or governmental or regulatory
authority, except in the case of each of clause (i), (ii) and (iii) above as otherwise
disclosed in or contemplated by the Registration Statement, the Time of Sale Information and
the Prospectus.
(g) Organization and Good Standing. The Company and its subsidiary have been duly
organized and are validly existing and in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business and are in good standing in
each jurisdiction in which their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to be in good standing, so qualified or have such
power or authority would not, individually or in the aggregate, have a material adverse
effect on the business, properties, financial position, stockholders’ equity, results of
operations or prospects of the Company and its subsidiary taken as a whole (a “Material
Adverse Effect”). The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than Sub-Q Solutions, Inc., a Delaware
corporation, which is listed in Exhibit 21.1 to the Registration Statement.
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(h) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the Prospectus under the heading
“Description of Capital Stock;” all the 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 preemptive or similar rights; except as described in or expressly
contemplated by the Time of Sale Information and the Prospectus, there are no outstanding
rights (including, without limitation, preemptive rights), warrants or options to acquire,
or instruments convertible into or exchangeable for, any shares of capital stock or other
equity interest in the Company or its subsidiary, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any capital stock of
the Company or its subsidiary, any such 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 Time of
Sale Information and the Prospectus under the heading “Description of Capital Stock;” and
all the outstanding shares of capital stock or other equity interests of the subsidiary of
the Company have been duly and validly authorized and issued, are fully paid and
non-assessable (except as otherwise described in the Registration Statement, the Time of
Sale Information and the Prospectus) and are owned directly or indirectly by the Company,
free and clear of any lien, charge, encumbrance, security interest, restriction on voting or
transfer or any other claim of any third party (except as otherwise described in the
Registration Statement, the Time of Sale Information and the Prospectus).
(i) Underwriting Agreement. The Company has full right, power and authority to execute
and deliver this Agreement and to perform its obligations hereunder; and all action required
to be taken for the due and proper authorization, execution and delivery by it of this
Agreement and the consummation by it of the transactions contemplated hereby has been duly
and validly taken. This Agreement has been duly authorized, executed and delivered by the
Company.
(j) The Shares. The Option Shares to be issued and sold by the Company hereunder have
been duly authorized by the Company and, when issued and delivered and paid for as provided
herein, will be duly and validly issued and will be fully paid and non-assessable and will
conform to the descriptions thereof in the Time of Sale Information and the Prospectus; and
the issuance of the Option Shares to be sold by the Company hereunder will not be subject to
any preemptive or similar rights.
(k) No Violation or Default. Neither the Company nor its subsidiary is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default,
and no event has occurred that, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or its subsidiary is a party or by which the Company or its subsidiary
is bound or to which any of the property or assets of the Company or its subsidiary is
subject; or (iii) in violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority, except, in
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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.
(l) No Conflicts. The execution and delivery by the Company of this Agreement do not,
and the performance by the Company of this Agreement, the issuance and sale of the Option
Shares by the Company and the consummation of the transactions contemplated by this
Agreement will not, (i) conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or its subsidiary
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or its subsidiary is a party or by which the Company or its
subsidiary is bound or to which any of the property or assets of the Company or its
subsidiary is subject, (ii) result in any violation of the provisions of the charter or
by-laws or similar organizational documents of the Company or its subsidiary or (iii) result
in the violation of any law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority, except in the case of clauses
(i) and (iii) above, for any such default, breach or violation that would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(m) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of this Agreement, the
issuance and sale of the Option Shares and the consummation of the transactions contemplated
by this Agreement, except for the registration of the Shares under the Securities Act, the
listing of the Shares on Nasdaq Global Market and such consents, approvals, authorizations,
orders and registrations or qualifications as may be required under applicable state
securities laws in connection with the purchase and distribution of the Shares by the
Underwriters.
(n) Legal Proceedings. Except as described in the Registration Statement, the Time of
Sale Information and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Company or its subsidiary
is or may be a party or to which any property of the Company or its subsidiary is or may be
the subject that, individually or in the aggregate, if determined adversely to the Company
or its subsidiary, would reasonably be expected to have a Material Adverse Effect or
materially and adversely affect the ability of the Company to perform its obligations under
this Agreement; the Company has not received any written notice that any such
investigations, actions, suits or proceedings are threatened or contemplated by any
governmental or regulatory authority or others; to the knowledge of the Company, no such
investigations, actions, suits or proceedings are so threatened or contemplated; and (i)
there are no current or pending legal, governmental or regulatory actions, suits or
proceedings that are required under the Securities Act to be described in the Registration
Statement that are not so described in the Registration Statement, the Time of Sale
Information and the Prospectus, and (ii) there are no statutes, regulations or contracts or
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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.
(o) Independent Accountants. Ernst & Young LLP, who has certified certain financial
statements of the Company and its subsidiary, is an independent registered public accounting
firm with respect to the Company and its subsidiary within the applicable rules and
regulations adopted by the Commission and the Public Accounting Oversight Board (United
States) and as required by the Securities Act.
(p) Title to Real and Personal Property. Except as described in the Registration
Statement, the Time of Sale Information and the Prospectus, the Company and its subsidiary
have good and marketable title in fee simple (in the case of real property) to, or have
valid rights to lease or otherwise use, all items of real and personal property that are
material to the respective businesses of the Company and its subsidiary, in each case free
and clear of all liens, encumbrances, claims and defects and imperfections of title except
those that (i) do not materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiary or (ii) would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(q) Title to Intellectual Property. Except as described in the Registration Statement,
the Time of Sale Information and the Prospectus, (i) the Company and its subsidiary own or
possess adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service xxxx registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) necessary for the conduct of
their respective businesses as described in the Registration Statement, the Time of Sale
Information and the Prospectus; (ii) the conduct of their respective businesses will not
conflict in any material respect with any such rights of others; and (iii) the Company and
its subsidiary have not received any written notice of any claim of infringement or conflict
with any such rights of others and no executive officer of the Company has received any
other notice of any such claim.
(r) No Undisclosed Relationships. No relationship, direct or indirect, exists between
or among the Company or its subsidiary, on the one hand, and the directors and officers of
the Company and, to the Company’s knowledge, the stockholders, customers or suppliers of the
Company or its subsidiary, on the other, that is required by the Securities Act to be
described in the Registration Statement and the Prospectus and that is not so described in
such documents and in the Time of Sale Information.
(s) Investment Company Act. The Company is not and, after giving effect to the
offering and sale of the Option Shares and the application of the proceeds thereof as
described in the Registration Statement, the Time of Sale Information and the Prospectus,
will not be required to register as an “investment company” or an entity “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940,
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as amended, and the rules and regulations of the Commission thereunder (collectively, the “Investment
Company Act”).
(t) Taxes. The Company and its subsidiary have paid all federal, state, local and
foreign taxes and filed all tax returns required to be paid or filed through the date
hereof, except for taxes being contested in good faith or where such failure to pay or file
would not reasonably be expected to have a Material Adverse Effect; and except as
otherwise disclosed in the Registration Statement, the Time of Sale Information and the
Prospectus, there is no tax deficiency that has been, or could reasonably be expected to be,
asserted against the Company or its subsidiary or any of their respective properties or
assets except as would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
(u) Licenses and Permits. The Company and its subsidiary possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or
the conduct of their respective businesses as described in the Registration Statement, the
Time of Sale Information and the Prospectus, except where the failure to possess or make the
same would not, individually or in the aggregate, have a Material Adverse Effect; and except
as described in the Registration Statement, the Time of Sale Information and the Prospectus,
neither the Company nor its subsidiary has received notice of any revocation or modification
of any such license, certificate, permit or authorization or has any reason to believe that
any such license, certificate, permit or authorization will not be renewed in the ordinary
course where such revocation, modification or failure to renew would not reasonably be
expected to have a Material Adverse Effect.
(v) No Labor Disputes. No labor disturbance by or dispute with employees of the
Company or its subsidiary exists or, to the knowledge of the Company, is contemplated or
threatened and the Company is not aware of any existing or imminent labor disturbance by, or
dispute with, the employees of the Company or its subsidiary, except as would not have a
Material Adverse Effect.
(w) Compliance with Environmental Laws. (i) The Company and its subsidiary (x) are in
compliance with any and all applicable federal, state, local and foreign laws, rules,
regulations, requirements, decisions and orders relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or
contaminants (collectively, “Environmental Laws”); (y) have received and are in compliance
with all permits, licenses, certificates or other authorizations or approvals required of
them under applicable Environmental Laws to conduct their respective businesses; and (z)
have not received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, and (ii) there are no costs or liabilities associated with
Environmental Laws of or relating to the Company or its subsidiary, except in the case of
each of (i)(x) and (i)(y) above, for any such failure to comply, or failure to receive
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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.
(x) Compliance with ERISA. Each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is
maintained, administered or contributed to by the Company or any of its affiliates for
employees or former employees of the Company and its affiliates has been maintained in all
material respects in compliance with its terms and the requirements of
any applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no
prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any such plan, excluding transactions effected pursuant
to a statutory or administrative exemption; and for each such plan that is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding
deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived,
and the fair market value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeds the present value of all benefits accrued under
such plan determined using reasonable actuarial assumptions.
(y) Accounting Controls. The Company and its subsidiary maintain a system of “internal
control over financial reporting” designed to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles, including, but not
limited to, internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(z) Insurance. The Company and its subsidiary have insurance covering their respective
properties, operations, personnel and business, which insurance is in amounts and insures
against such losses and risks as are prudent and customary in the business in which they are
engaged; and neither the Company or its subsidiary has received written notice from any
insurer or agent of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such insurance or (ii) it will not be
able to renew its existing insurance coverage as and when such coverage expires or to obtain
substantially similar coverage at reasonable cost from similar insurers as may be necessary
to continue its business.
(aa) No Unlawful Payments. Neither the Company or its subsidiary nor, to the knowledge
of the Company, any director, officer, agent, employee or other person acting on behalf of
the Company or its subsidiary has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to political
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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.
(bb) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiary are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting
Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”), in each case, to the extent applicable to the
Company, and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or its subsidiary with respect to
the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(cc) Compliance with OFAC. None of the Company, its subsidiary or, to the best
knowledge of the Company, any director, officer, agent, employee or affiliate of the Company
or its subsidiary is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will
not directly or indirectly use the proceeds of the offering of the Option Shares hereunder,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the activities of
any person currently subject to any U.S. sanctions administered by OFAC.
(dd) No Restrictions on Subsidiaries. Except as described in the Registration
Statement, the Time of Sale Information and the Prospectus, the subsidiary of the Company is
not currently prohibited, directly or indirectly, under any agreement or other instrument to
which it is a party or is subject, from paying any dividends to the Company, from making any
other distribution on such subsidiary’s capital stock, from repaying to the Company any
loans or advances to such subsidiary from the Company or from transferring any of such
subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
(ee) No Broker’s Fees. Neither the Company nor its subsidiary is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would
give rise to a valid claim against the Company or its subsidiary or any Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale
of the Shares.
(ff) No Registration Rights. Other than the Selling Stockholders with respect to the
Underwritten Shares, no person has the right to require the Company or its subsidiary to
register any securities for sale under the Securities Act by reason of the filing of the
Registration Statement with the Commission or the issuance and sale of the Option Shares,
except such as has been previously waived.
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(gg) No Stabilization. The Company has not taken, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization of
the price of the Stock in violation of Regulation M under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) or any manipulation of the price of the Stock.
(hh) Margin Rules. Neither the issuance, sale and delivery of the Option Shares being
issued by the Company hereunder nor the application of the proceeds thereof by the Company
as described in the Registration Statement, the Time of Sale Information and the Prospectus will violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(ii) Forward-Looking Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the
Registration Statement, the Time of Sale Information and the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(jj) Statistical and Market Data. Nothing has come to the attention of the Company
that has caused the Company to believe that the statistical and market-related data included
in the Registration Statement, the Time of Sale Information and the Prospectus is not based
on or derived from sources that are reliable and accurate in all material respects.
(kk) Xxxxxxxx-Xxxxx Act. The Company has taken all necessary actions to ensure that,
upon effectiveness of the Registration Statement, it will be in compliance with all
provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Xxxxxxxx-Xxxxx Act”) that are then in effect and which the
Company is required to comply with as of the effectiveness of the Registration Statement,
and is actively taking steps to ensure that it will be in compliance with other provisions
of the Xxxxxxxx-Xxxxx Act not currently in effect, upon the effectiveness of such
provisions, or which will become applicable to the Company at all times after the
effectiveness of the Registration Statement.
(ll) Status Under the Securities Act. The Company is not an “ineligible issuer” as
defined under the Securities Act at the times specified in the Securities Act in connection
with the offering of the Shares.
4. Representations and Warranties of the Selling Stockholders. Each Selling
Stockholder severally and not jointly 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 Underwritten
Shares to be sold by such Selling Stockholder hereunder, have
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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.
(b) 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
Underwritten Shares to be sold by such Selling Stockholder and the consummation by such
Selling Stockholder of the transactions herein and therein contemplated
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 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 authority, except in the case of clauses (i) and (iii) above, for any such
default, breach or violation that would not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, properties, financial position,
stockholders’ equity, results of operations or prospects of such Selling Stockholder.
(c) Title to Shares. Such Selling Stockholder has marketable title to the Underwritten
Shares to be sold at the Closing Date by such Selling Stockholder hereunder, free and clear
of all liens, encumbrances, equities or adverse claims; such Selling Stockholder will have,
immediately prior to the Closing Date, marketable title to the Underwritten 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 certificates
representing such Underwritten Shares and payment therefor pursuant hereto, marketable title
to such Underwritten Shares, free and clear of all liens, encumbrances, equities or adverse
claims, will pass to the several Underwriters.
(d) 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 Stock.
(e) Time of Sale Information. The Time of Sale Information, at the Time of Sale, did
not, and at the Closing Date and at 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, however, that the
representation and warranty set forth in this paragraph are limited to statements or
omissions made in reli-
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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).
(g) Registration Statement and Prospectus. As of the applicable effective date of the
Registration Statement and any amendment thereto, the Registration Statement complied
and will comply in all material respects with the Securities Act, and did
not and will not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary 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 and as of the Additional Closing Date, as the case may be, the
Prospectus will not contain any untrue statement of a material fact or omit to state a
material fact 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, however, that the representations and warranties set forth in this
paragraph are limited to statements or omissions made in reliance upon information furnished
to the Company by such Selling Stockholder for inclusion in the Registration Statement, the
Prospectus (or any amendment or supplement thereto) or any Issuer Free Writing Prospectus.
(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
-15-
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.
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 and will file any Issuer Free Writing Prospectus (to the extent not
previously delivered) to the extent required by Rule 433 under the Securities Act. The
Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to
the extent not previously delivered) to the Underwriters in New York City as soon as
practicable following the date hereof, but in no event later than 10:00 A.M., New York City
time, on the second business day next succeeding the date of this Agreement in such
quantities as the Representatives may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the
Representatives, three signed copies of the Registration Statement as originally filed and
each amendment thereto, in each case including all exhibits and consents filed therewith;
and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as
originally filed and each amendment thereto (without exhibits) and (B) during the Prospectus
Delivery Period (as defined below), as many copies of the Prospectus (including all
amendments and supplements thereto) and each Issuer Free Writing Prospectus as the
Representatives may reasonably request. As used herein, the term “Prospectus Delivery
Period” means such period of time after the first date of the public offering of the Shares
as in the opinion of counsel for the Underwriters a prospectus relating to the Shares is
required by law to be delivered (or required to be delivered but for Rule 172 under the
Securities Act) in connection with sales of the Shares by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing,
using, authorizing, approving, referring to or filing any Issuer Free Writing
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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
-17-
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.
6. Further Agreements of the Selling Stockholders. Each Stockholder covenants and
agrees with each Underwriter that:
(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.
7. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the
planning for use of, any “free writing prospectus,” as defined in Rule 405 under the
Securities Act (which term includes use of any written information furnished to the
Commission by the Company and not incorporated by reference into the Registration Statement
and any press release issued by the Company), other than (i) a free writing prospectus that
contains no “issuer information” (as defined in Rule 433(h)(2) under the Securities Act)
that was not included (including through incorporation by reference) in the Preliminary
Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free
Writing Prospectus listed on Annex B or prepared pursuant to Section 3(c) or 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).
8. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing
Date, as the case may be, as provided herein is subject to the performance by the Company and each
Selling Stockholder of their respective covenants and other obligations hereunder and to the
following additional conditions:
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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.
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 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.
(b) Indemnification of the Underwriters by the Selling Stockholders. Each Selling Stockholder
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 furnished to the Company in writing 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 Time of Sale Information (including any Time of Sale
Information that has subsequently been amended).
(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 Selling
Stockholder to the same extent as the indemnity set forth in paragraph (a) above, but only with
respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in the Registration Statement, the
Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time
of Sale Information, it being understood and agreed upon that the only such information furnished
by any Underwriter consists of the following information in the Prospectus furnished on behalf of
each Underwriter: the last sentence on the front cover page relating to the delivery of the Shares
and the information contained in the [ ] paragraphs 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; pro-
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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.
(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,
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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.
(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, in no event shall an Underwriter be
required to contribute any amount in excess of the amount by which the total underwriting discounts
and commissions received by such Underwriter with respect to the offering of the Shares exceeds the
amount of any damages that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 9 are several in proportion to
their respective purchase obligations hereunder and not joint.
(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.
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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.
12. Defaulting Underwriter.
(a) If, on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the Shares that it has agreed to purchase
hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the
purchase of such Shares by other persons satisfactory to the Company 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.
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 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-
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penses (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 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; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
17. Miscellaneous.
(a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken
by the Representatives on behalf of the Underwriters, and any such action taken by the
Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o 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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(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
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If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
| Very truly yours, INSULET CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| 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
