exv10w1






Exhibit 10.1




$75,000,000




Insulet Corporation




5.375% Convertible Senior Notes Due 2013




Registration Rights Agreement




June 16, 2008                    




J.P. Morgan Securities Inc.

277 Park Avenue

New York, New York 10172




Merrill Lynch & Co.,

Merrill Lynch, Pierce, Fenner & Smith Incorporated

4 World Financial Center

New York, New York 10080




Ladies and Gentlemen:




     Insulet Corporation, a Delaware corporation (the “Company”), proposes to issue and sell to
J.P. Morgan Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated (the “Initial
Purchasers”), pursuant to the purchase agreement dated June 10, 2008, between the Company and the
Initial Purchasers (the “Purchase Agreement”), $75,000,000 aggregate principal amount of its 5.375%
Convertible Senior Notes due 2013 (the “Firm Notes”), and at the election of the Initial
Purchasers, up to an additional $10,000,000 aggregate principal amount of the Company’s 5.375%
Convertible Senior Notes due 2013 solely to cover over-allotments (the “Additional Notes” and,
together with the Firm Notes, the “Notes”), in each case, upon the terms and subject to the
conditions set forth in the Purchase Agreement.



     As an inducement to the Initial Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to the obligations of the Initial Purchasers thereunder, the Company
agrees with the Initial Purchasers, for the benefit of the Holders (as defined below), as follows:



     1. Certain Definitions.



     Capitalized terms used but not defined herein shall have the meanings given to such terms in
the Purchase Agreement. For purposes of this Registration Rights Agreement, the following terms
shall have the following meanings:




     (a) “Additional Notes” has the meaning specified in the first paragraph of this
Agreement.



 









 






     (b) “Additional Interest” has the meaning assigned thereto in Section 2(d).




     (c) “Additional Interest Payment Date” has the meaning assigned thereto in Section
2(d)(v).




     (d) “Affiliate” has the meaning set forth in Rule 405 under the Securities Act, except
as otherwise expressly provided herein.




     (e) “Agreement” means this Registration Rights Agreement, as the same may be amended
from time to time pursuant to the terms hereof.




     (f) “Automatic Shelf Registration Statement” has the meaning set forth in Rule 405
under the Securities Act.




     (g) “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed.




     (h) “Commission” means the Securities and Exchange Commission, or any other federal
agency at the time administering the Exchange Act or the Securities Act, whichever is the
relevant statute for the particular purpose.




     (i) “Company” has the meaning assigned thereto in the first paragraph of this
Agreement.




     (j) “Deferral Notice” has the meaning assigned thereto in Section 3(b).




     (k) “Deferral Period” has the meaning assigned thereto in Section 3(b).




     (l) “Effective Period” has the meaning assigned thereto in Section 2(a).




     (m) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.




     (n) “FINRA” means the Financial Industry Regulatory Authority, Inc.




     (o) “Holder” means each holder, from time to time, of Registrable Securities (including
the Initial Purchasers).




     (p) “Indemnified Holder” has the meaning assigned thereto in Section 6(a).




     (q) “Indenture” means the Indenture dated as of June 16, 2008 between the Company and
the Trustee, pursuant to which the Notes are being issued.




     (r) “Initial Purchasers” has the meaning assigned thereto in the first paragraph of
this Agreement.



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     (s) “Last Reported Sale Price” has the meaning assigned to it in the Indenture.




     (t) “Material Event” has the meaning assigned thereto in Section 3(a)(iv).




     (u) “Majority Holders” means, on any date, the holders of the majority in aggregate
amount of the Registrable Securites; provided that such aggregate amount, with respect to
Notes that are Registrable Securities will be based on the aggregate principal amount of
Notes that are Registrable Securities, and with respect to Shares that are Registrable
Securities, will be based on the average of the Last Reported Sale Prices of the Company’s
Common Stock for each of five consecutive trading days ending on a date chosen by the
Company in a reasonable manner to effect the intent of this Agreement multiplied by the
number of such Shares that are Registrable Securities; provided further that whenever the
consent or approval of the Majority Holders is required hereunder, any Registrable
Securities owned directly or indirectly by the Company or any Affiliate shall not be counted
in determining whether such consent or approval was given by the Majority Holders; provided
further that if the Company shall issue any additional Securities under the Indenture prior
to the effectiveness of any Shelf Registration Statement, such additional Securities, to the
extent they are Registrable Securities,and the Securities to be issued on June 16, 2008, to
the extent they are Registrable Securities, shall be treated together as one class for
purposes of determining whether the consent or approval of the Majority Holders has been
obtained.




     (v) “Notice and Questionnaire” means a written notice delivered to the Company
containing substantially the information called for by the Form of Selling Securityholder
Notice and Questionnaire attached as Annex A to the Offering Memorandum.




     (w) “Notice Holder” means, on any date, any Holder that has delivered a properly
completed Notice and Questionnaire to the Company on or prior to such date.




     (x) “Notes” has the meaning assigned thereto in the first paragraph of this Agreement.




     (y) “Offering Memorandum” means the Final Offering Memorandum dated June 10, 2008
relating to the offer and sale of the Notes.




     (z) “Person” means a corporation, limited liability company, association, partnership,
organization, business, individual, government or political subdivision thereof or
governmental agency.




     (aa) “Prospectus” means the prospectus included in any Shelf Registration Statement
(including, without limitation, a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in reliance upon Rule
430A, 430B or 430C under the Securities Act), as amended or supplemented by any amendment or
prospectus supplement, including post-effective



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amendments, and all materials incorporated by reference or explicitly deemed to be
incorporated by reference in such Prospectus.




     (bb) “Purchase Agreement” has the meaning assigned thereto in the first paragraph of
this Agreement.




     (cc) “Registrable Securities” means the Securities; provided, however, that such
Securities shall not be Registrable Securities if as of the applicable date of determination
(i) such Securities have ceased to be outstanding; (ii) in the circumstances contemplated by
Section 2(a), a registration statement registering such Securities under the Securities Act
has been declared or becomes effective and such Securities have been sold or otherwise
transferred or disposed of by the Holder thereof pursuant to such effective registration
statement; or (iii) such Securities are eligible to be sold to the public by the Holder
thereof without restriction pursuant to Rule 144.




     (dd) “Registration Default” has the meaning assigned thereto in Section 2(d).




     (ee) “Registration Expenses” has the meaning assigned thereto in Section 5.




     (ff) “Rule 144,” “Rule 144A,” “Rule 405,” “Rule 415” and “Rule 433” mean, in each case,
such rule as promulgated under the Securities Act.




     (gg) “Securities” means the Notes and the Shares.




     (hh) “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.




     (ii) “Shares” means the shares of common stock of the Company, par value $0.001 per
share (the “Common Stock”), into which the Notes are convertible or that have been issued
upon any conversion of Notes into common stock of the Company.




     (jj) “Shelf Inspectors” has the meaning assigned thereto in Section 3(a)(vii).




     (kk) “Shelf Registration Statement” means the shelf registration statement referred to
in Section 2(a), as amended or supplemented by any amendment or supplement, including
post-effective amendments and any additional information contained in a form of prospectus
or prospectus supplement that is deemed retroactively to be a part of the Shelf Registration
Statement pursuant to Rules 430A, 430B or 430C, and all materials incorporated by reference
or explicitly deemed to be incorporated by reference in such Shelf Registration Statement,
which may be an Automatic Shelf Registration Statement.




     (ll) “Special Counsel” shall have the meaning assigned thereto in Section 5.




     (mm) “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, or any
successor thereto, and the rules, regulations and forms promulgated thereunder, all as the
same shall be amended from time to time.



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     (nn) “Trustee” shall have the meaning assigned such term in the Indenture.



     Unless the context otherwise requires, any reference herein to a “Section” or “clause” refers
to a Section or clause, as the case may be, of this Agreement, and the words “herein,” “hereof” and
“hereunder” and other words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision. Unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any successor statute, rule or regulation
thereto) as it may be amended from time to time.



     2. Registration Under the Securities Act.




     (a) The Company agrees that if:




     (i) on the six-month anniversary of the last date of original issuance
of the Notes any Registrable Securities are held by any Person other than
the Company, an Affiliate of the Company or an Initial Purchaser;




     (ii) at any time after the six-month anniversary of the last date of
original issuance of the Notes the conditions set forth in paragraph (c)(1)
of Rule 144 are not satisfied with respect to the Securities; or




     (iii) an Initial Purchaser or an Affiliate that holds Registrable
Securities requests;




the Company shall file an Automatic Shelf Registration Statement, if the Company is eligible
to do so and has not already done so (provided such previously filed Automatic Shelf
Registration Statement covers all Holders of Registrable Securities determined as of the
date such subsequent obligation arose), and, if the Company is not eligible for an Automatic
Shelf Registration Statement, then in lieu of the foregoing the Company shall file a Shelf
Registration Statement for the registration of, and the sale on a continuous or delayed
basis by the Holders of, all of the Registrable Securities pursuant to Rule 415 or any
similar rule that may be adopted by the Commission, and use its commercially reasonable
efforts to cause the Shelf Registration Statement to become or be declared effective under
the Securities Act, (x) on the day that is six months after the last date of original
issuance of the Notes, in the case of clause (i) above, (y) as soon as practicable in the
case of clause (ii) above and (z) by the 30th day after the date of receipt of
notice requesting registration from an Initial Purchaser or an Affiliate that has delivered
a properly completed Notice and Questionnaire to the Company on or prior to such date, but
not before the six-month anniversary of the last date of original issuance of the Notes, in
the case of clause (iii). It being understood that if there are no Registrable Securities
entitled to be included in the Shelf Registration Statement at such time that the Company
shall have no obligation to file such Shelf Registration Statement at such time.




     The Company agrees to use its commercially reasonable efforts to keep such Shelf
Registration Statement continuously effective, subject to Section 3(b), until the earliest
of (x) one year from the last date of original issuance of the Notes; (y) the date by



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which all Registrable Securities have been sold pursuant to such Shelf Registration
Statement; and (z) such date as each of the Registrable Securities covered by the Shelf
Registration Statement ceases to be a Registrable Security (the “Effective Period”).




     (b) The Company further agrees that it shall cause the Shelf Registration Statement,
the related Prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, as of the time of sale of any Securities under such Shelf
Registration Statement, and as of the date of any such amendment or supplement, (i) to
comply in all material respects with the applicable requirements of the Securities Act and
(ii) not to 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
case of the Prospectus, in the light of the circumstances under which they were made) not
misleading, and the Company agrees to furnish to the Holders such number of copies as such
Holders may reasonably request of any supplement or amendment prior to its being used or
promptly following its filing with the Commission; provided, however, that the Company shall
have no obligation to deliver to Holders copies of any amendment consisting exclusively of
an Exchange Act report or other Exchange Act filing otherwise publicly available on the
Commission’s Edgar database. If the Shelf Registration Statement, as amended or
supplemented from time to time, ceases to be effective for any reason at any time during the
Effective Period (other than because all Registrable Securities registered thereunder shall
have been sold pursuant thereto or shall have otherwise ceased to be Registrable
Securities), the Company shall use its commercially reasonable efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof.




     (c) Each Holder agrees that if such Holder wishes to sell Registrable Securities
pursuant to the Shelf Registration Statement and related Prospectus, it will do so only in
accordance with this Section 2(c), Section 3(c) and Section 4. From and after the date the
Shelf Registration Statement is initially effective and until the tenth (10th)
Business Day prior to the expiration of the Effective Period, the Company shall, as promptly
as is reasonably practicable after the date a Notice and Questionnaire is delivered by a
Notice Holder, and in any event within (x) ten (10) Business Days after the date such Notice
and Questionnaire is received by the Company, (y) if a Notice and Questionnaire is so
received during a Deferral Period, ten (10) Business Days after the expiration of such
Deferral Period or (z) if a Notice and Questionnaire is received prior to a Deferral Period,
but a Deferral Period occurs prior to ten (10) Business Days after such receipt, ten (10)
Business Days after the expiration of such Deferral Period,




     (i) if required by applicable law, file with the Commission a post-effective amendment
to the Shelf Registration Statement or prepare and, if required by applicable law, file a
supplement to the related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document so that the Holder
delivering such Notice and Questionnaire is named as a selling security holder in the Shelf
Registration Statement and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of the Registrable Securities in accordance with
applicable law and, if the Company shall file a post-



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effective amendment to the Shelf Registration Statement and such amendment is not
automatically effective, use its commercially reasonable efforts to cause such
post-effective amendment to be declared or to otherwise become effective under the
Securities Act as promptly as is reasonably practicable;




     (ii) provide such Holder with as many copies of any documents filed pursuant to Section
2(c)(i) as such Holder may reasonably request in connection with the Securities covered by
such Holder’s Notice and Questionnaire; and




     (iii) notify such Holder as promptly as reasonably practicable after the effectiveness
under the Securities Act of any post-effective amendment filed pursuant to Section 2(c)(i);




provided that if such Notice and Questionnaire is delivered during a Deferral Period, the
Company shall so inform the Holder delivering such Notice and Questionnaire and shall take
the actions set forth in this Section 2(c) above upon expiration of the Deferral Period in
accordance with Section 3(b). Notwithstanding anything contained herein to the contrary,
the Company shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Shelf Registration Statement or related Prospectus or
prospectus supplement; provided, however, that any Holder that becomes a Notice Holder
pursuant to the provisions of this Section 2(c) (whether or not such Holder was a Notice
Holder at the time the Shelf Registration Statement was declared or otherwise became
effective) shall be named as a selling securityholder in the Shelf Registration Statement or
related Prospectus in accordance with the requirements of this Section 2(c).




     (d) If any of the following events (any such event a “Registration Default”) shall
occur, then additional interest (the “Additional Interest”) shall become payable by the
Company to Holders in respect of the Notes as follows:




     (i) if on the day that is six months after the last date of original issuance of the
Notes, Registrable Securities are held by any Person other than an Affiliate of the Company,
the Company or an Initial Purchaser and the Shelf Registration Statement has not been filed
with and declared effective by the Commission by such date (other than pursuant to Section
3(b) hereof), and the Company does not file and have declared effective a Shelf Registration
Statement within five (5) Business Days, then, commencing on the day following the
Registration Default, Additional Interest shall accrue on the principal amount of the
outstanding Notes that are Registrable Securities at a rate of 0.25% per annum for the first
90-day period following the Registration Default, and thereafter at a rate of 0.50% per
annum;




     (ii) at any time after the six-month anniversary of the last date of original issuance
of the Notes the conditions set forth in paragraph (c)(1) of Rule 144 are not satisfied with
respect to the Securities and the Shelf Registration Statement has not been filed with and
declared effective by the Commission at or prior to the later of (x) the six month
anniversary of the last date of original issuance of the Notes and (y) the time



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that such conditions cease to be satisfied (other than pursuant to Section 3(b)
hereof), and the Company does not file and have declared effective a Shelf Registration
Statement within five (5) Business Days, then, commencing on such later date, Additional
Interest shall accrue on the principal amount of the outstanding Notes that are Registrable
Securities at a rate of 0.25% per annum for the first 90-day period following the
Registration Default, and thereafter at a rate of 0.50% per annum;




     (iii) if the Shelf Registration Statement has become or been declared effective but
such Shelf Registration Statement ceases to be effective or the prospectus contained therein
ceases to be usable in connection with the resales of Registrable Securities at any time
during the Effective Period (other than pursuant to Section 3(b) hereof), and the Company
does not cure the Registration Default within five (5) Business Days by a post-effective
amendment or a report filed pursuant to the Exchange Act, then, commencing on the day such
Shelf Registration Statement ceases to be effective, Additional Interest shall accrue on the
principal amount of the outstanding Notes that are Registrable Securities at a rate of 0.25%
per annum for the first 90-day period following such date on which the Shelf Registration
Statement ceases to be effective, and thereafter at a rate of 0.50% per annum;




     (iv) if the aggregate duration of Deferral Periods in any period exceeds the number of
days permitted in respect of such period pursuant to Section 3(b) hereof, then, commencing
on the day the aggregate duration of Deferral Periods in any period exceeds the number of
days permitted in respect of such period, Additional Interest shall accrue on the principal
amount of the outstanding Notes that are Registrable Securities at a rate of 0.25% per annum
for the first 90-day period following the Registration Default, and thereafter at a rate of
0.50% per annum;




     (v) by the one year anniversary of the last date of issuance of the Notes, the Company
has failed to (x) exchange the beneficial interests in the Restricted Global Note (as
defined in the Indenture) for beneficial interests in the Unrestricted Global Note (as
defined in the Indenture) in accordance with Section 2.06(c) or Section 2.12 of the
Indenture or otherwise or (y) exchange the certificates representing the Shares that contain
the legends described in Section 2.06(d) of the Indenture for certificates representing the
Shares that do not contain such legends in accordance with Section 2.06(c) of the Indenture,
Additional Interest shall accrue on the principal amount of the outstanding Notes at a rate
of 0.25% per annum for the first 90-day period following the Registration Default, and
thereafter at a rate of 0.50% per annum;




provided, however, that the Additional Interest rate on the Notes shall not exceed in the
aggregate 0.50% per annum and shall not be payable under more than one clause above for any
given period of time, except that if Additional Interest would be payable under more than
one clause above, but at a rate of 0.25% per annum under one clause and at a rate of 0.5%
per annum under the other, then the Additional Interest rate shall be the higher rate of
0.5% per annum; provided further, however, that Additional Interest on the Notes that are
Registrable Securities as a result of clauses (i) through (iv) above, shall cease to accrue
upon the earlier of (x) the one-year anniversary of the last date of original



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issuance of the Notes and (y)(1) the filing and effectiveness of the Shelf Registration
Statement (in the case of clauses (i) and (ii) above), (2) the effectiveness of the Shelf
Registration Statement which had ceased to remain effective (in the case of clause (iii)
above), (3) the termination of the Deferral Period that caused the limit on the aggregate
duration of Deferral Periods in a period set forth in Section 3(b) to be exceeded (in the
case of clause (iv) above), (4) the date the Notes cease to be Registrable Securities or (5)
the date the Notes cease to be outstanding (as determined in accordance with the terms of
the Indenture). Additional Interest on the Notes as a result of clause (v) above shall cease
to accrue upon the earlier of (1) the exchange of the beneficial interests in the Restricted
Global Note (as defined in the Indenture) for beneficial interests in the Unrestricted
Global Note (as defined in the Indenture) in accordance with Section 2.06(c) and Section
2.12 of the Indenture or otherwise and (y) the exchange of the certificates representing the
Shares that contain the legends described in Section 2.06(d) of the Indenture for
certificates representing the Shares that do not contain such legends in accordance with
Section 2.06(c) of the Indenture and (2) the date the Notes cease to be outstanding (as
determined in accordance with the terms of the Indenture).




     Additional Interest on the Notes, if any, will be payable in arrears in cash on
December 15 and June 15 of each year (the “Additional Interest Payment Date”) to holders of
record of outstanding Notes that are Registrable Securities at the close of business on
December 1 or June 1 (whether or not a Business Day), as the case may be, immediately
preceding the relevant Additional Interest Payment Date; provided that (x) any accrued and
unpaid Additional Interest with respect to any Notes or portion thereof submitted for
conversion shall be paid in the manner and to the extent provided for the payment of
interest in Section 15.02(h) of the Indenture and (y) that any accrued and unpaid Additional
Interest with respect to any Notes or portion thereof submitted for repurchase on a
Fundamental Change Repurchase Date (as defined in the Indenture), and not withdrawn in
compliance with Section 16.02 of the Indenture, shall be paid in the manner provided for the
payment of interest in Section 16.01(a) of the Indenture. Following the cure of all
Registration Defaults requiring the payment of Additional Interest to the Holders of Notes
that are Registrable Securities pursuant to this Section 2(d), the accrual of Additional
Interest will cease (without in any way limiting the effect of any subsequent Registration
Default requiring the payment of Additional Interest). Additional Interest on the Notes, if
any, will accrue beginning on the date provided for in clauses 2(d)(i) through (v) above, as
applicable, to, but excluding, the date on which all Registration Defaults have been cured.
If a Holder converts some or all of the Notes into Shares, such Holder will not be entitled
to receive Additional Interest on such Shares.




     The Company shall notify the Trustee as promptly as reasonably practicable upon the
happening of each and every Registration Default. The Trustee shall be entitled, on behalf
of Holders, to seek any available remedy for the enforcement of this Agreement, including
for the payment of any Additional Interest if any becomes due. Notwithstanding the
foregoing, the parties agree that the sole monetary damages payable for a violation of the
terms of this Agreement with respect to which additional monetary amounts are expressly
provided shall be as set forth in this Section 2(d). Nothing shall



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preclude a Notice Holder or Holder from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.



     3. Registration Procedures.



     The following provisions shall apply to the Shelf Registration Statement filed pursuant to
Section 2:




     (a) The Company shall:




     (i) notify the Holders of Registrable Securities at least 10 (ten) Business Days before
filing any Shelf Registration Statement pursuant to Section 2 of the Company’s intent to
file such Shelf Registration Statement and seeking a determination from such Holder as to
whether such Holder elects to have its Registrable Securities included in such Shelf
Registration Statement;




     (ii) before filing any Shelf Registration Statement or Prospectus or any amendments or
supplements thereto with the Commission, furnish to each Initial Purchaser copies of all
such documents proposed to be filed and use its commercially reasonable efforts to reflect
in each such document when so filed with the Commission such comments as such Initial
Purchasers reasonably shall propose within three (3) Business Days of the delivery of such
copies to the Initial Purchasers; provided, however, that the Company shall be permitted to
file prospectus supplements or post-effective amendments to reflect additional selling
securityholders without prior review of the Initial Purchasers;




     (iii) use its commercially reasonable efforts to prepare and file with the Commission
such amendments and post-effective amendments to the Shelf Registration Statement and file
with the Commission any other required document as may be necessary to keep such Shelf
Registration Statement continuously effective until the expiration of the Effective Period;
cause the related Prospectus to be supplemented by any required prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all Securities covered by such Shelf
Registration Statement during the Effective Period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Shelf Registration Statement as so
amended or such Prospectus as so supplemented;




     (iv) as promptly as reasonably practicable, notify the Notice Holders (A) when such
Shelf Registration Statement or the Prospectus included therein or any amendment or
supplement to the Prospectus or post-effective amendment has been filed with the Commission,
and, with respect to such Shelf Registration Statement or any post-effective amendment that
is not an Automatic Shelf Registration Statement, when the same is declared or has become
effective, provided, that the availability of such Shelf Registration Statement or any
Prospectus or post-effective amendment on the Commission’s EDGAR database shall be
considered notice for the purpose of this



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Section 3(a)(iv), (B) of any request (but not the nature or details regarding such
request), following the effectiveness of the Shelf Registration Statement, by the Commission
or any other federal or state governmental authority for amendments or supplements to the
Shelf Registration Statement or related Prospectus (other than any such request relating to
a review of the Company’s Exchange Act filings), (C) of the issuance by the Commission of
any stop order suspending the effectiveness of such Shelf Registration Statement or the
initiation or written threat of any proceedings for that purpose, (D) of the receipt by the
Company of any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or written threat of
any proceeding for such purpose, (E) of the occurrence of any event or the existence of any
fact (but not the nature of or details concerning such event or fact) (a “Material Event”)
as a result of which any Shelf Registration Statement shall contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or any Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that no notice by the Company shall
be required pursuant to this clause (E) in the event that the Company either promptly files
a prospectus supplement, amendment to the Shelf Registration Statement to update the
Prospectus or a Form 8-K or other appropriate Exchange Act report that is incorporated by
reference into the Shelf Registration Statement, which, in either case, contains the
requisite information with respect to such Material Event that results in such Shelf
Registration Statement or Prospectus, as the case may be, no longer containing any untrue
statement of material fact or omitting to state a material fact required to be stated
therein or necessary to make the statements contained therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not misleading, (F) of
the determination by the Company that a post-effective amendment to the Shelf Registration
Statement (other than for the purpose of naming a Notice Holder as a selling securityholder
therein) will be filed with the Commission, which notice may, at the discretion of the
Company (or as required pursuant to Section 3(b)), state that it constitutes a Deferral
Notice, in which event the provisions of Section 3(b) shall apply or (G) at any time when a
Prospectus is required (or but for the exemption contained in Rule 172 would be required) to
be delivered under the Securities Act, that the Shelf Registration Statement, Prospectus,
Prospectus amendment or supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities Act and the rules and
regulations of the Commission thereunder;




     (v) prior to any public offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use its commercially reasonable efforts to register or qualify, or
cooperate with the Notice Holders included therein and their respective counsel in
connection with the registration or qualification of Securities for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States as any such
Notice Holders reasonably request in writing and do any and all other acts or things
reasonably necessary or advisable to enable the offer and sale in such jurisdictions of the
Securities covered by the Shelf Registration Statement; prior to any public offering of the



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Registrable Securities pursuant to the Shelf Registration Statement, use its
commercially reasonable efforts to keep each such registration or qualification (or
exemption therefrom) effective during the Effective Period in connection with such Notice
Holder’s offer and sale of Registrable Securities pursuant to such registration or
qualification (or exemption therefrom) and use its commercially reasonable efforts to
provide for the disposition in such jurisdictions of such Registrable Securities in the
manner set forth in the Shelf Registration Statement and the related Prospectus; provided
that for purposes of this Section 3(a)(v), the Company will not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified or to take
any action which would subject it to general service of process or to taxation in any such
jurisdiction where it is not then so subject;




     (vi) use its commercially reasonable efforts to lift any suspension of the
qualification of any of the Registrable Securities for sale in any jurisdiction in which
they have been qualified for sale, in each case at the earliest practicable date;




     (vii) upon reasonable written notice, and only in connection with a disposition of
Securities under the Shelf Registration Statement, for a reasonable period prior to the
filing of the Shelf Registration Statement, and throughout the Effective Period (but not
during a Deferral Period), (i) make reasonably available for inspection by a representative
of, and Special Counsel acting for, the Majority Holders and any underwriter (and its
counsel) participating in any disposition of Securities pursuant to such Shelf Registration
Statement (collectively, the “Shelf Inspectors”), all relevant and material financial and
other records and pertinent corporate documents of the Company and its subsidiaries and (ii)
use commercially reasonable efforts to have its officers, employees, accountants and counsel
make available all relevant material information reasonably requested by such
representative, Special Counsel or any such underwriter in connection with such Shelf
Registration Statement, in each case as is reasonable and customary for similar “due
diligence” examinations of issuers of similar size and business of the Company; provided,
however, that such persons shall first agree with the Company that any information that is
reasonably designated by the Company as confidential at the time of delivery shall be kept
confidential by such persons and shall be used solely for the purposes of exercising rights
under this Agreement and satisfying “due diligence” obligations under the Securities Act and
such person shall not engage in trading any securities of the Company until such material
non-public information becomes properly publicly available, unless (w) disclosure of such
information is required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (x) disclosure of such information is required by law,
including any disclosure requirements pursuant to federal securities laws in connection with
the filing of any Shelf Registration Statement or the use of any Prospectus or prospectus
supplement referred to in this Agreement upon a customary opinion of counsel for such
persons delivered and reasonably satisfactory to the Company, (y) such information becomes
generally available to the public other than as a result of a disclosure or failure to
safeguard by any such person, or (z) such information becomes available to any such person
from a source (other than the Company, its Affiliates, officers, employees, accountants,
agents and counsel) and such source is not bound by a confidentiality agreement; provided,
further,



-12-









 







that with respect to any Special Counsel engaged by the Majority Holders, the foregoing
inspection and information gathering shall be coordinated by one counsel designated by the
Majority Holders;




     (viii) if requested by the Majority Holders, their Special Counsel or the managing
underwriters (if any) in connection with an underwritten offering of the Registrable
Securities pursuant to the Shelf Registration Statement, use its commercially reasonable
efforts to cause (i) its counsel to deliver an opinion relating to the Shelf Registration
Statement and the Securities in a customary form, (ii) its officers to execute and deliver
all customary documents and certificates reasonably requested by the Majority Holders, their
Special Counsel or the managing underwriters (if any) and (iii) its registered independent
public accounting firm to provide a comfort letter or letters relating to the Shelf
Registration Statement in a reasonable and customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of Auditing Standards No.
72 or any successor statement thereto, covering matters of the type customarily covered in
comfort letters in connection with secondary underwritten offerings; provided, that in no
event shall the Company be required to furnish such opinions, documents or comfort letters
pursuant to the provisions of this Section in more than three underwritten offerings.




     (ix) if reasonably requested in writing by any Initial Purchaser or any Notice Holder
as a result of the “due diligence” examination referred to in Section 3(a)(vii) above,
promptly incorporate in a prospectus supplement or post-effective amendment to the Shelf
Registration Statement such information as such Initial Purchaser or such Notice Holder
shall, on the basis of a written opinion of Special Counsel, determine to be required to be
included therein by applicable law and make any required filings of such prospectus
supplement or such post-effective amendment; provided, that the Company shall not be
required to take any actions under this Section 3(a)(ix) that are not, in the reasonable
opinion of counsel for the Company, in compliance with applicable law; provided, further,
that the Company shall have no liability for Additional Interest under this Agreement if it
reasonably objects to making such additional filing and if such additional filing would
otherwise cause the Company to pay Additional Interest.




     (x) as promptly as practicable furnish to each Notice Holder and the Initial
Purchasers, upon their request and without charge, at least one (1) conformed copy of the
Shelf Registration Statement and any amendments thereto, including financial statements but
excluding schedules, all documents incorporated or deemed to be incorporated therein by
reference and all exhibits; provided, however, that the Company shall have no obligation to
deliver to Notice Holders or the Initial Purchasers a copy of any amendment publicly
available on the Company’s website or in the Commission’s EDGAR database;




     (xi) during the Effective Period, deliver to each Notice Holder in connection with any
sale of Registrable Securities pursuant to the Shelf Registration Statement, upon their
request and without charge, as many copies of the Prospectus relating to such Registrable
Securities (including each preliminary prospectus) and any amendment or supplement thereto
as such Notice Holder may reasonably request; and the



-13-









 







Company hereby consents (except during such periods that a Deferral Notice is
outstanding and has not been revoked) to the use of such Prospectus or each amendment or
supplement thereto by each Notice Holder in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement thereto in
the manner set forth therein and subject to applicable law; and




     (xii) during the Effective Period, cooperate with the Notice Holders to facilitate the
timely preparation and delivery of certificates representing Securities to be sold pursuant
to the Shelf Registration Statement free of any restrictive legends, unless required by
applicable law, and in such denominations as permitted by the Indenture and registered in
such names as the Holders thereof may request in writing at least two (2) Business Days
prior to sales of Securities pursuant to such Shelf Registration Statement; provided, that
nothing herein shall require the Company to deliver certificated Securities to any
beneficial holder of Securities, except as required by the Indenture; provided further
however, such Notice Holders shall pay any such tax that is due because such Notice Holder
requests any shares of Common Stock to be issued in a name other than the holder’s name as
provided for in Sections 2.06(a) and 15.02(e) of the Indenture.




     (b) Upon (A) the issuance by the Commission of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of proceedings with
respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities
Act, (B) the occurrence of any event or the existence of any Material Event as a result of
which the Shelf Registration Statement shall contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to make the
statements therein not misleading, or any Prospectus shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading, or (C) the occurrence or existence of any corporate development or
business reason that, in the sole discretion of the Company, makes it appropriate to suspend
the availability of the Shelf Registration Statement and the related Prospectus, including,
without limitation, the acquisition of assets, pending corporate developments, public
filings with Commission and similar events, the Company will (i) in the case of clause (B)
above, subject to the second sentence of this provision, use its commercially reasonable
efforts to prepare and file an amendment to such Shelf Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by reference or
file any other required document that would be incorporated by reference into such Shelf
Registration Statement and Prospectus so that (1) such Shelf Registration Statement does not
contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading, and (2)
such Prospectus does not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, as thereafter
delivered or made available to the purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective amendment to the Shelf Registration
Statement, subject to the second sentence of this provision, use its commercially reasonable
efforts to cause it to be



-14-









 







declared effective or otherwise become effective and (ii) give notice to the Notice
Holders that the availability of the Shelf Registration Statement is suspended (a “Deferral
Notice”). The Company will use its commercially reasonable efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as
reasonably practicable, (y) in the case of clause (B) above, as soon as, in the sole
judgment of the Company, public disclosure of such Material Event would not be prejudicial
to or contrary to the interests of the Company or, if necessary to avoid unreasonable burden
or expense, as soon as practicable thereafter and (z) in the case of clause (C) above, as
soon as, in the sole discretion of the Company, such suspension is no longer appropriate;
provided that the period during which the availability of the Shelf Registration Statement
and any Prospectus is suspended (the “Deferral Period”), without the Company incurring any
obligation to pay Additional Interest pursuant to Section 2(d), shall not exceed forty-five
(45) days in the aggregate in any ninety (90) day period or an aggregate of ninety (90) days
in any 12-month period.




     (c) Each Holder agrees that upon receipt of any Deferral Notice from the Company, such
Holder shall forthwith discontinue (and cause any placement or sales agent or underwriters
acting on their behalf to discontinue) the disposition of Registrable Securities pursuant to
the Shelf Registration Statement until such Holder (i) shall have received copies of such
amended or supplemented Prospectus and, if so directed by the Company, such Holder shall
deliver to the Company (at the Company’s expense) all copies, other than permanent file
copies, then in such Holder’s possession of the Prospectus covering such Registrable
Securities at the time of receipt of such notice or (ii) shall have received notice from the
Company that the disposition of Registrable Securities pursuant to the Shelf Registration
may continue. Each Holder shall keep confidential any communication received by it from the
Company regarding the suspension of the use of the Prospectus, except as required by
applicable law.




     (d) The Company may require each Holder as to which any registration pursuant to
Section 2(a) is being effected to furnish to the Company such information regarding such
Holder and such Holder’s intended method of distribution of such Registrable Securities as
the Company may from time to time reasonably request in writing, but only to the extent such
information is required to comply with the Securities Act.




     (e) The Company shall provide a CUSIP number for all Registrable Securities covered by
the Shelf Registration Statement not later than the effective date of such Shelf
Registration Statement and provide the Trustee and the transfer agent for the Shares with
printed certificates for the Registrable Securities that are in a form eligible for deposit
with The Depository Trust Company.




     (f) The Company shall use commercially reasonable efforts to provide such information
as is required for any filings required to be made with FINRA.




     (g) Until the expiration of the Effective Period, the Company will not resell, and will
use its commercially reasonable efforts to prevent its “affiliates” (as defined in



-15-









 







Rule 144) from reselling, any of the Securities that have been reacquired by any of
them except pursuant to an effective registration statement under the Securities Act.




     (h) The Company shall cause the Indenture to be qualified under the Trust Indenture Act
in a the manner prescribed by the Trust Indenture Act and shall enter into any necessary
supplemental indentures in connection therewith.




     (i) The Company shall enter into such customary agreements and take such other
reasonable and lawful actions in connection therewith (including those reasonably requested
by the Majority Holders) in order to expedite or facilitate disposition of such Registrable
Securities.



     4. Holders’ Obligations.




     (a) In addition to the other limitations and requirements described herein, each Holder
agrees, by acquisition of the Registrable Securities, that no Holder shall be entitled to
sell any of such Registrable Securities pursuant to the Shelf Registration Statement or to
receive a Prospectus relating thereto, unless such Holder has furnished the Company with a
completed Notice and Questionnaire as required pursuant to Section 2(c) hereof (including
the information required to be included in such Notice and Questionnaire) and the
information set forth in the next sentence. Each Notice Holder agrees to notify the Company
as promptly as practicable of any inaccuracy or change in information previously furnished
by such Notice Holder to the Company or of the occurrence of any event in either case as a
result of which any Prospectus relating to such registration contains or would contain an
untrue statement of a material fact regarding such Notice Holder or such Notice Holder’s
intended method of disposition of such Registrable Securities or omits to state any material
fact regarding such Notice Holder or such Notice Holder’s intended method of disposition of
such Registrable Securities necessary to make the statements therein, in light of
circumstances in which they were made, not misleading, and promptly to furnish to the
Company (i) any additional information required to correct and update any previously
furnished information or required so that such Prospectus shall not contain, with respect to
such Notice Holder or the disposition of such Registrable Securities, an untrue statement of
a material fact or omit to state a material fact necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading and (ii) any other
information regarding such Notice Holder and the distribution of such Registrable Securities
as may be required to be disclosed in the Shelf Registration Statement under applicable law
or pursuant to Commission comments. Each Holder further agrees not to sell any Registrable
Securities pursuant to the Shelf Registration Statement without delivering, causing to be
delivered, or, if permitted by applicable law, making available, a Prospectus to the
purchaser thereof and, following termination of the Effective Period, to notify the Company,
within ten (10) Business Days of a request by the Company, of the amount of Registrable
Securities sold pursuant to the Shelf Registration Statement and, in the absence of a
response, the Company may assume that all of the Holder’s Registrable Securities were so
sold in compliance with applicable law and this Agreement unless and until the Company is
notified otherwise.



-16-









 






     (b) Any sale of any Registrable Securities by any Holder shall constitute a
representation and warranty by such Holder that the information relating to such Holder and
its plan of distribution is as set forth in the Prospectus delivered by such Holder in
connection with such disposition, that such Prospectus does not as of the time of such sale
contain any untrue statement of a material fact relating to or provided by such Holder or
its plan of distribution and that such Prospectus does not as of the time of such sale omit
to state any material fact relating to or provided by such Holder or its plan of
distribution necessary to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading. Each Holder further agrees that
such Holder will not make any offer relating to the Registrable Securities that would
constitute an “issuer free writing prospectus” (as defined in Rule 433) or that would
otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be
filed by the Company with the Commission or retained by the Company under Rule 433 of the
Securities Act, unless it has obtained the prior written consent of the Company.




     (c) The Holders shall not offer Registrable Securities under the Shelf Registration
Statement in an underwritten offering without the Company’s prior written consent. Any
underwritten offering agreed to by the Company shall be on terms and conditions agreed to by
the Company in connection with such offering. The Company shall not be required to
undertake more than three underwritten offerings pursuant to this Agreement.



     5. Registration Expenses.



     The Company agrees to bear and to pay or cause to be paid promptly after request being made
therefor all fees and expenses incident to the Company’s performance of or compliance with this
Agreement, including, but not limited to, (a) all Commission and any FINRA registration and filing
fees and expenses, (b) all fees and expenses in connection with the qualification of the Securities
for offering and sale under the state securities and blue sky laws referred to in Section 3(a)(v)
hereof, including reasonable fees and disbursements of one counsel for the placement agent or
underwriters, if any, in connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of the Shelf Registration Statement, the
related Prospectus, each amendment or supplement to each of the foregoing, the certificates
representing the Securities and all other documents relating hereto, (d) fees and expenses of the
Trustee under the Indenture, any escrow agent or custodian, and of the registrar and transfer agent
for the Shares, (e) in connection with an underwritten offering, fees, disbursements and expenses
of counsel and the registered independent public accounting firm of the Company (including the
expenses of any opinions or “cold comfort” letters required by or incident to such performance and
compliance) and (f) reasonable fees, disbursements and expenses of one counsel for all Holders
retained in connection with the Shelf Registration Statement, as selected by the Company (unless
reasonably objected to by the Majority Holders, in which case the Majority Holders shall select
such counsel for the Holders) (“Special Counsel”), and fees, expenses and disbursements of any
other Persons, including special experts, retained by the Company in connection with such
registration (collectively, the “Registration Expenses”). To the extent that any reasonable and
proper Registration Expenses are incurred, assumed or paid by any Holder or any underwriter or
placement agent therefor, the Company shall reimburse such Person for the full amount of the
Registration Expenses so incurred,



-17-









 







assumed or paid promptly after receipt of a documented request therefor. Notwithstanding the
foregoing, the Holders of the Registrable Securities being registered shall pay all underwriting
discounts and commissions and placement agent fees and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other advisors or experts
retained by such Holders (severally or jointly), other than the Special Counsel and experts
specifically referred to above.



     6. Indemnification.




     (a) The Company shall indemnify and hold harmless each Notice Holder (including,
without limitation, each Initial Purchaser), its Affiliates, their respective officers,
directors, employees, representatives and agents, and each Person, if any, who controls such
Notice Holder within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 6 and Section 7 as an “Indemnified Holder”) from
and against any loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, without limitation, any loss, claim, damage, liability or action
relating to purchases and sales of Registrable Securities), to which that Indemnified Holder
may become subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact contained in any
such Shelf Registration Statement or any Prospectus forming part thereof, or (ii) the
omission or alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein (in the case of any Prospectus, in the
light of the circumstances under which they were made) not misleading, and shall reimburse
each Indemnified Holder promptly upon demand for any legal or other expenses reasonably
incurred by that Indemnified Holder in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, an untrue
statement or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any information provided by such
Indemnified Holder in writing to the Company expressly for use therein including its Notice
and Questionnaire. This indemnity agreement shall be in addition to any liability that the
Company may otherwise have.




     (b) Each Notice Holder (including, without limitation, each Initial Purchaser) shall
indemnify and hold harmless the Company, its Affiliates, their respective officers,
directors, employees, representatives and agents, and each Person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act (collectively referred
to for purposes of this Section 6(b) and Section 7 as the Company), from and against any
loss, claim, damage or liability, joint or several, or any action in respect thereof, to
which the Company may become subject, whether commenced or threatened, under the Securities
Act, the Exchange Act, any other federal or state statutory law or regulation, at common law
or otherwise, insofar as such loss, claim, damage, liability or



-18-









 







action arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any such Shelf Registration Statement or any
Prospectus forming part thereof, or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the statements
therein (in the case of any Prospectus, in the light of the circumstances under which they
were made) not misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance upon and in
conformity with any information furnished to the Company in writing by such Notice Holder
expressly for use therein including its Notice and Questionnaire, and shall reimburse the
Company for any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending or preparing to defend against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that no such Notice Holder shall be liable for any
indemnity claims hereunder in excess of the amount of net proceeds received by such Notice
Holder from the sale of Registrable Securities pursuant to such Shelf Registration
Statement. This indemnity agreement will be in addition to any liability which any such
Notice Holder may otherwise have.




     (c) Promptly after receipt by an indemnified party under this Section 6 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party pursuant to Section 6(a) or
6(b), notify the indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under this Section 6 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 party shall not relieve it from any liability that it may have to an
indemnified party otherwise than under this Section 6. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the indemnified party under
this Section 6 for any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than the reasonable costs of
investigation; provided, however, that an indemnified party shall have the right to employ
its own counsel in any such action, but the fees, expenses and other charges of such counsel
for the indemnified party will be at the expense of such indemnified party unless (1) the
employment of counsel by the indemnified party has been authorized in writing by the
indemnifying party, (2) the indemnified party has reasonably concluded (based upon advice of
counsel to the indemnified party) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict exists (based upon advice of
counsel to the indemnified party) between the indemnified party and the indemnifying party
(in which case the indemnifying party will



-19-









 







not have the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in each of which
cases the reasonable fees, disbursements and other charges of counsel will be at the expense
of the indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other charges of more
than one separate firm of attorneys (in addition to any local counsel) at any one time for
all such indemnified party or parties. Each indemnified party, as a condition of the
indemnity agreements contained in Sections 6(a) and 6(b), shall use its reasonable efforts
to cooperate with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses or counsel as contemplated by
this section, the indemnifying party agrees that it 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 such indemnifying party of a request in writing setting
forth proposed settlement terms from the indemnified party and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with the aforesaid request
prior to the date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party (which consent shall not be unreasonably withheld),
effect any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter
of such proceeding and (ii) does not include a statement or admission of fault, culpability
or a failure to act, by or on behalf of the indemnified party.




     (d) The provisions of this Section 6 and Section 7 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Notice Holder, the
Company, or any of the indemnified Persons referred to in this Section 6 and Section 7, and
shall survive the sale by a Notice Holder of Registrable Securities covered by the Shelf
Registration Statement.



     7. Contribution.



     If the indemnification provided for in Section 6 is unavailable or insufficient to hold
harmless an indemnified party under Section 6(a) or 6(b), then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or action in respect
thereof,



-20-









 




(i) in such proportion as shall be appropriate to reflect the relative benefits received by the
Company from the offering and sale of the Notes, on the one hand, and a Holder with respect to the
sale by such Holder of Registrable Securities, on the other, or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative fault
of the Company on the one hand and such Holder on the other with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as
well as any other relevant equitable considerations. The relative benefits received by the Company
on the one hand and a Holder on the other with respect to such offering and such sale shall be
deemed to be in the same proportion as the total net proceeds from the offering of the Notes
(before deducting expenses) received by or on behalf of the Company, on the one hand, and the total
net proceeds (before deducting expenses) received by such Holder upon a resale of the Registrable
Securities, on the other, bear to the total gross proceeds from the sale of all Registrable
Securities pursuant to the Shelf Registration Statement in the offering of the Registrable
Securities from which the contribution claim arises. The relative fault 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 the Company or information
supplied by the Company on the one hand or to any information contained in the relevant Notice and
Questionnaire supplied by such Holder on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such untrue statement or
omission. The Notice Holders’ respective obligations to contribute pursuant to this Section 7 are
several in proportion to the respective number of Registrable Securities they have sold pursuant to
the Shelf Registration Statement and not joint. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 7 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified party as a result
of the loss, claim, damage or liability, or action in respect thereof, referred to above in this
Section 7 shall be deemed to include, for purposes of this Section 7, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending or
preparing to defend any such action or claim. Notwithstanding the provisions of this Section 7, an
indemnifying party that is a Holder shall not be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities sold by such indemnifying party
to any purchaser exceeds the amount of any damages which such indemnifying party has otherwise paid
or become liable to pay by reason of any 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.




     8. Information Requirements.



     The Company covenants that, if at any time before the end of the Effective Period the Company
is not subject to the reporting requirements of the Exchange Act, it will cooperate with any Holder
and take such further customary action as any Holder may reasonably request in writing (including,
without limitation, making such representations as any such Holder may reasonably request), all to
the extent required from time to time to enable such Holder to sell



-21-









 







Registrable Securities without registration under the Securities Act within the limitation of
the exemptions provided by Rule 144 and Rule 144A under the Securities Act and customarily taken in
connection with sales pursuant to such exemptions. Upon the written request of any Holder, the
Company shall deliver to such Holder a written statement as to whether it has complied with such
filing requirements, unless such a statement has been included in the Company’s most recent report
filed pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding the foregoing,
nothing in this Section 8 shall be deemed to require the Company to register any of its securities
under any section of the Exchange Act.



     9. Miscellaneous.



          (a) Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to departures from the provisions hereof may not
be given, unless the Company has obtained the written consent of the Majority Holders.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose Registrable Securities
are being sold pursuant to the Shelf Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of a majority in aggregate
amount of the Registrable Securities being sold by such Holders pursuant to the Shelf Registration
Statement; provided that such aggregate amount, with respect to such Registrable Securities that
are Notes will be based on the aggregate principal amount of such Notes that are Registrable
Securities, and with respect to such Registrable Securities that are Shares, will be based on the
average of the Last Reported Sale Prices of the Company’s Common Stock for each of five consecutive
trading days ending on a date chosen by the Company in a reasonable manner to effect the intent of
this Agreement multiplied by the number of such Registrable Securities that are Shares.
Notwithstanding the foregoing sentence, (i) this Agreement may be amended by written agreement
signed by the Company and the Initial Purchasers, without the consent of the Holders, to cure any
ambiguity or to correct or supplement any provision contained herein that may be defective or
inconsistent with any other provision contained herein, or to make such other provisions in regard
to matters or questions arising under this Agreement that shall not adversely affect the interests
of the Holders. Each Holder at the time of any such amendment, modification, supplement, waiver or
consent or thereafter shall be bound by any such amendment, modification, supplement, waiver or
consent effected pursuant to this Section 9(a), whether or not any notice, writing or marking
indicating such amendment, modification, supplement, waiver or consent appears on the Registrable
Securities or is delivered to such Holder.




          (b) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail, telecopier or air courier guaranteeing
next-day delivery:





     (1) If to the Company, initially at the address set forth in the Indenture;




     (2) If to the Initial Purchasers, initially at c/o J.P. Morgan Securities Inc.,
277 Park Avenue, New York, New York 10172 (fax: (212) 622-8358);



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Attention: Equity Syndicate Desk and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, 4 World Financial Center, New York, New York
10080 (fax: (212) 449-2785); Attention: Equity Capital Markets; and




     (3) If to a Holder, to the address of such Holder set forth in the register
(described in Section 2.06 of the Indenture), the Notice and Questionnaire or other
records of the Company.



          All such notices and communications shall be deemed to have been duly given: when delivered by
hand, if personally delivered; one (1) Business Day after being delivered to a next-day air
courier; five (5) Business Days after being deposited in the mail, if being delivered by
first-class mail; and when receipt is acknowledged by the recipient’s telecopier machine, if sent
by telecopier.




          Notwithstanding the foregoing, the notice required pursuant to Section 3(a)(i) shall be given
in the same manner that notices are required to be delivered to holders of Notes pursuant to the
Indenture.




          (c) Successors and Assigns. This Agreement shall be binding upon the Company and each
of its successors and assigns. Any Person who purchases any Securities from any Initial Purchaser
shall be deemed, for purposes of this Agreement, to be an assignee of such Initial Purchaser. This
Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of
the parties and shall inure to the benefit of and be binding upon each Holder, provided that
nothing herein shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Indenture. If any transferee of any Holder
shall acquire Registrable Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking
and holding such Registrable Securities, such Person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement and such Person shall
be entitled to receive the benefits hereof.




          (d) Counterparts. This Agreement may be executed in any number of counterparts (which
may be delivered in original form or by telecopier) and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.




          (e) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.




          (f) Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK
(WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF)..




          (g) Remedies. In the event of a breach by the Company or by any Holder of any of
their respective obligations under this Agreement, each Holder or the Company, as the case may be,
in addition to being entitled to exercise all rights granted by law, including recovery



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of damages (other than the recovery of damages for a breach by the Company of its obligations
under Section 3 hereof for which Additional Interest has been paid pursuant to Section 2 hereof),
will be entitled to specific performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby further agree that,
in the event of any action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.




          (h) No Inconsistent Agreements. The Company represents, warrants and agrees that (i)
it has not entered into and shall not on or after the date of this Agreement enter into any
agreement that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) it has not previously entered into any
agreement which remains in effect and does not currently contemplate entering into any agreement
granting any registration rights with respect to any of its debt securities to any Person other
than (a) this Agreement and (b) the Third Amended and Restated Investor Rights Agreement, dated
February 3, 2006, among the Company and the other parties thereto, as has been or may be amended or
supplement from time to time and (iii) without limiting the generality of the foregoing, without
the written consent of the Majority Holders, it shall not grant to any Person the right to request
the Company to register any securities of the Company under the Securities Act unless the rights so
granted are not in conflict or inconsistent with the provisions of this Agreement.




          (i) Piggyback on Registrations. The Company may grant registration rights that would
permit any person that is a third party the right to piggyback on any Shelf Registration Statement,
provided that if the managing underwriter, if any, of any underwritten offering conducted pursuant
to Section 4(c) hereof notifies the Company that the total amount of securities which the Notice
Holders and the holders of such piggyback rights intend to include in any Shelf Registration
Statement is so large as to materially threaten the success of such offering (including the price
at which such securities can be sold), then the amount, number or kind of securities to be offered
for the account of holders of such piggyback rights will be reduced to the extent necessary to
reduce the total amount of securities to be included in such offering to the amount, number and
kind recommended by the managing underwriter prior to any reduction in the amount of Registrable
Securities to be included in such Shelf Registration Statement; provided that it would not be a
default under the agreements granting such piggyback rights to make such reduction; provided
further that to the extent it would be such a default under any such agreement to make such
reduction, the Company will use its commercially reasonable efforts to obtain appropriate waivers.




          (j) Severability. The remedies provided herein are cumulative and not exclusive of
any remedies provided by law. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the



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intention of the parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any term, provision, covenant or restriction that may
be hereafter declared invalid, illegal, void or unenforceable.



          (k) Survival. The respective indemnities, agreements, representations, warranties and
each other provision set forth in this Agreement or made pursuant hereto shall remain in full force
and effect regardless of any investigation (or statement as to the results thereof) made by or on
behalf of any Holder, any director, officer or partner of such Holder, any agent or underwriter or
any director, officer or partner thereof, or any controlling Person of any of the foregoing, and
shall survive (x) the delivery and payment for the Notes pursuant to the Purchase Agreement and (y)
the transfer and registration of Registrable Securities by holders of Registrable Securities.



          (l) Securities Held by the Company, etc. Whenever the consent or approval of Holders
of a specified percentage of Securities is required hereunder, Securities held by the Company or
its Affiliates (other than subsequent Holders if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such required percentage.



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          If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to us a counterpart hereof, whereupon this instrument will become a binding agreement
between the Company and the Initial Purchasers in accordance with its terms.




	 	 	 	 	 
	 	Very truly yours,



THE COMPANY



INSULET CORPORATION

 	 
	 	By:  	/s/ R. Anthony Diehl
 	 
	 	 	Name:  	R. Anthony Diehl 	 
	 	 	Title:  	General Counsel and Secretary 	 



 









 






	 	 	 	 	 



Accepted: June 16, 2008




	 	 	 	 	 
	By:  	J.P. MORGAN SECURITIES INC.
 	 	 
	 	 	 
	By:  	/s/ Jason M. Wood
 	 	 
	 	Name:  	Jason M. Wood 	 	 
	 	Title:  	Managing Director 	 	 
	 	 	 
	By:  	MERRILL LYNCH & CO.,
 MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
 	 	 
	 	 	 
	By:  	/s/ James Boylan
 	 	 
	 	Name:  	James Boylan 	 	 
	 	Title:  	Managing Director