exv10w1






	 	 	 	 	 



Exhibit 10.1


This  Facility Agreement
(the “Facility Agreement”) contains representations and warranties that the Lenders
(“Lenders”) and Insulet Corporation (“Insulet”) made to each other. These
representations and warranties were made only for the purposes of the signing of the Facility
Agreement and solely for the benefit of the Lenders and Insulet as of specific dates, may be
subject to important limitations and qualifications agreed to by the Lenders and Insulet in
connection with the signing of the Facility Agreement, and may not be complete. Furthermore,
these representations and warranties may have been made for the purposes
of allocating contractual risk between the Lenders and Insulet instead of establishing these
matters as facts, and may or may not have been accurate as of any specific date and do not
purport to be accurate as of the date of the filing of the Facility Agreement by Insulet with the
Securities and Exchange Commission. Accordingly, you should not rely upon the representations
and warranties contained in the Facility Agreement as characterizations of the actual state
of facts, since they were intended to be for the benefit of, and to be limited to, the Lenders
and Insulet.


FACILITY AGREEMENT


     FACILITY AGREEMENT (this “Agreement”), dated as of March 13, 2009 (the “Agreement
Date”), between Insulet Corporation, a Delaware corporation (the “Borrower”), and those
lenders set forth on Schedule 1 attached hereto (individually, a “Lender” and together,
the “Lenders” and, together with the Borrower, the “Parties”).


W I T N E S S E T H:


     WHEREAS, the Borrower wishes to borrow from the Lenders up to Sixty Million Dollars
($60,000,000) for the purpose described in Section 2.1; and


     WHEREAS, the Lenders desire to make loans to the Borrower from time to time for such purpose.


     NOW, THEREFORE, in consideration of the mutual agreements set forth herein, the Lenders and
the Borrower agree as follows:


ARTICLE 1


DEFINITIONS


     Section 1.1 General Definitions. Wherever used in this Agreement, the Exhibits or the
Schedules attached hereto, unless the context otherwise requires, the following terms have the
following meanings:


     “Additional Amounts” has the meaning given to it in Section 2.6(b).


     “Affiliate” means, with respect to any Person, any other Person:


     (a) that owns, directly or indirectly, in the aggregate of more than fifty percent
(50%) of the beneficial ownership interest of such Person; or


     (b) that directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such Person; or


     (c) that directly or indirectly is a general partner, controlling shareholder, or
managing member of such Person.


     “Approved Fund” means, with respect to any Lender, any Person (other than a natural
Person) that (a) is or will be engaged in making, purchasing, holding or otherwise investing in
notes, commercial loans and similar extensions of credit in the ordinary course of its business or
(b) is advised or managed by (i) such Lender, (ii) any Affiliate of such Lender or (iii) any Person
(other than an individual) or any Affiliate of any Person (other than an individual) that
administers or manages such Lender.


     “Business Day” means a day on which banks are open for business in The City of New
York.


 








 





     “Cash and Cash Equivalents” means with respect to any date of determination, the
amount shown as such on the consolidated balance sheet of the Borrower and its Subsidiaries at the
time such balance sheet is filed with the SEC on Form 10-Q or Form 10-K under the Exchange Act or
otherwise made available to the Borrower’s stockholders.



     “Code” means the Internal Revenue Code of 1986, as amended, and any Treasury
Regulations promulgated thereunder.



     “Common Stock” means the common stock, par value $0.001 per share, of the Borrower.



     “Default” means any event which, at the giving of notice, lapse of time or fulfillment
of any other applicable condition (or any combination of the foregoing), would constitute an Event
of Default.



     “Disbursement” has the meaning given to it in Section 2.2.



     “Disbursement Date” means the date on which a Disbursement occurs.



     “Disbursement Request” has the meaning given to it in Section 2.2.



     “Dollars” and the “$” sign mean the lawful currency of the United States of
America.



     “Event of Default” has the meaning given to it in Section 5.5.



     “Evidence of Disbursement” has the meaning given to it in Section 2.2.



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



     “Excluded Taxes” means all income taxes, minimum or alternative minimum income taxes,
any tax determined based upon income, capital gains, gross income, sales, net profits, windfall
profits or similar items, franchise taxes (or any other tax measured by capital, capital stock or
net worth), gross receipts taxes, branch profits taxes, margin taxes (or any other taxes imposed on
or measured by net income, or imposed in lieu of net income) payable by the Lenders in any
jurisdiction to any Government Authority (or political subdivision or taxing authority thereof) in
connection with any payments received under this Agreement by the Lenders, or any similar tax
imposed in connection with the execution and delivery of, and the performance of its obligations
under, this Agreement.



     “Final Payment” means such amount as may be necessary to repay the Loan in full and
any other amounts owing by the Borrower to the Lenders pursuant to the Financing Documents.



     “Final Payment Date” means the earlier of (i) the date on which the Borrower repays
the outstanding principal of the Loan (together with any other amounts accrued and unpaid under
this Agreement) to the Lenders pursuant to this Agreement and (ii) September 16, 2012.



     “Financing Documents” means this Agreement, the Notes, the Registration Rights
Agreement, the Security Agreement, the Warrants and any other document or instrument delivered by
the Borrower in connection with any of the foregoing whether or not specifically mentioned herein
or therein.



 









 





     “Finished Goods Inventory” means with respect to any date of determination, the amount
shown as such in the footnotes to the consolidated financial statements of the Borrower and its
Subsidiaries at the time such financial statement are filed with the SEC on Form 10-Q or Form 10-K
under the Exchange Act or otherwise made available to the Borrower’s stockholders.



     “GAAP” means generally accepted accounting principles consistently applied as set
forth in the opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of comparable stature and authority
within the accounting profession).



     “Government Authority” means any government, governmental department, ministry,
cabinet, commission, board, bureau, agency, tribunal, regulatory authority, instrumentality,
judicial, legislative, fiscal, or administrative body or entity, whether domestic or foreign,
federal, state or local, having jurisdiction over the matter or matters and Person or Persons in
question, including, without limitation, the SEC.



     “Gross Profit” means, for any fiscal quarter of the Borrower, the gross profit
(loss) for such quarter as reported in the Borrower’s filings with the SEC, provided that (i) any
gross profit recorded in any single fiscal quarter from the sale of the OmniPod System Starter Kits
solely for investigational use shall be capped at $1 million and (ii) any gross profit recorded in
any fiscal quarter related to the favorable settlement of a legal dispute or proceeding between the
Borrower and a third party shall be excluded in its entirety.



     “Indebtedness” means the following, whether direct or contingent:




     (a) all indebtedness for borrowed money;




     (b) the deferred purchase price of assets or services which in accordance with GAAP
would be shown to be a liability (or on the liability side of a balance sheet);




     (c) all guaranty obligations;




     (d) the maximum amount of all letters of credit issued or acceptance facilities
established for the account of the Borrower and, without duplication, all drafts drawn
thereunder (other than letters of credit supporting other indebtedness of Borrower and which
are otherwise permitted hereunder);




     (e) all capitalized lease obligations;




     (f) all indebtedness of another Person secured by any Lien on any property of the
Borrower, whether or not such indebtedness has been assumed or is recourse;




     (g) all obligations under take-or-pay or similar arrangements or under any interest
rate swaps, caps, floors, collars and other interest hedge or protection agreements,
treasury locks, equity forward contracts, currency agreements or commodity purchase or
option agreements or other interest or exchange rate or commodity price hedging agreements
and any other derivative instruments, in each case, whether the Borrower is liable
contingently or otherwise, as obligor, guarantor or otherwise, or in respect of which
obligations the Borrower otherwise assures a creditor against loss;



 









 






     (h) indebtedness created or arising under any conditional sale or title retention
agreement; and




     (i) obligations of the Borrower with respect to withdrawal liability to or on behalf of
any “multi employer plan” as defined in Section 4001(a) of ERISA.



     “Indemnified Person” has the meaning given to it in Section 6.11.



     “Indemnity” has the meaning given to it in Section 6.11.



     “Interest Rate” means 9.75% simple interest per annum, payable on the outstanding
principal amount of each of the Notes.



     “Lien” means any lien, pledge, preferential arrangement, mortgage, security interest,
deed of trust, charge, assignment, hypothecation, title retention, privilege or other encumbrance
on or with respect to property or interest in property having the practical effect of constituting
a security interest, in each case with respect to the payment of any obligation with, or from the
proceeds of, any asset or revenue of any kind.



     “Loan” means the loan to be made available by the Lenders to the Borrower pursuant to
Section 2.2 in the maximum aggregate amount of sixty million Dollars ($60,000,000) or, as the
context may require, the principal amount thereof from time to time outstanding.



     “Loss” has the meaning given to it in Section 6.11.



     “Major Transaction” has the meaning set forth in the Warrants.



     “Material Adverse Effect” means a material adverse effect on (a) the business,
operations, condition (financial or otherwise) or property of the Borrower, (b) the validity or
enforceability of any provision of any Financing Document, (c) the ability of the Borrower to
timely perform its Obligations or (d) the rights and remedies of the Lenders under any Financing
Document.



     “Notes” means the notes issued to the Lenders evidencing the Loan in the form attached
hereto as Exhibit A.



     “Obligations” means all obligations (monetary or otherwise) of the Borrower arising
under or in connection with the Financing Documents.



     “Organizational Documents” means the Certificate of Incorporation and Bylaws, each as
in effect from time to time, of the Borrower.



     “Permitted Indebtedness” means the principal of (and premium, if any), interest on,
and all fees and other amounts (including, without limitation, any reasonable out-of-pocket costs,
enforcement expenses (including reasonable out-of-pocket legal fees and disbursements), collateral
protection expenses and other reimbursement or indemnity obligations relating thereto) payable by
Borrower and/or its Subsidiaries under or in connection with: (i) Indebtedness of Borrower in favor
of the Lenders arising under this Agreement or any other Financing Document, (ii) Indebtedness
existing as of the date hereof and set forth in a schedule to this Agreement (which the Borrower
represents to not be in excess of $105,734,375 and any Permitted Refinancing Indebtedness used to
refinance such Indebtedness, (iii) future Indebtedness in respect of purchase money financing,
capital



 









 







lease obligations and equipment financing and letters of credit, in each case in the ordinary
course of business, (iv) Indebtedness to trade creditors incurred in the ordinary course of
business, (v) intercompany Indebtedness, (vi) Indebtedness in respect of workers’ compensation
claims, self-insurance obligations, indemnities, bankers’ acceptances, performance and surety
bonds, appeal or other similar bonds, in each case in the ordinary course of business, in any such
case, any reimbursement obligations in connection therewith (vii) Indebtedness arising from the
honoring by a bank or other financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within 15
Business Days and (viii) Indebtedness arising from agreements providing for indemnifications,
provided that the amount of such Indebtedness does not exceed $1,000,000.



     “Permitted Liens” means: (i) [Intentionally omitted]; (ii) Liens in favor of the
Lenders; (iii) statutory Liens created by operation of applicable law; (iv) Liens arising in the
ordinary course of business and securing obligations that are not overdue or are being contested in
good faith by appropriate proceedings; (v) Liens for Taxes not yet due and payable or that are
being contested in good faith by appropriate proceedings; (vi) licenses and sub-licenses granted in
the ordinary course of Borrower’s business and, with respect to any licenses where Borrower is the
licensee or sublicensee, any interest or title of a licensor or sublicensor under any such license
or sublicense; (vii) any option or other agreement to purchase any asset of the Borrower or any
Subsidiary the disposition of which is not otherwise prohibited hereby; (viii) Liens in favor of
the Borrower and/or any of its Subsidiaries; (ix) survey exceptions, easements or reservations of,
or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other restrictions as to the use of real property
that were not incurred in connection with Indebtedness; (x) Liens incurred in the ordinary course
of business in connection with workers’ compensation, unemployment insurance and other types of
social security, (xi) Liens resulting from operation of law with respect to any judgments, awards
or orders to the extent such judgments, awards or orders do not cause of constitute an Event of
Default; (xii) Liens upon specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances issued or created for the
account of such Person to facilitate the purchase, shipment or storage of such inventory or other
goods; (xiii) Liens securing reimbursement obligations with respect to commercial letters of credit
which encumber documents and other property relating to such letters of credit and products and
proceeds thereof; (xiv) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual, or warranty requirements of the Borrower or any of its
Subsidiaries, including rights of offset and set-off; (xv) Liens securing Indebtedness represented
by the accrual of interest, the payment of interest on any Permitted Indebtedness in the form of
additional Permitted Indebtedness with the same terms; (xvi) Liens on raw materials or on
manufactured products or other goods as security for any drafts or bills of exchange drawn in
connection with the importation of such raw materials or manufactured products; (xvii) Liens
arising from precautionary UCC financing statements regarding operating leases or consignments;
(xviii) Liens occurring solely by filing of a UCC statement which filing has not been consented to
by the Borrower or any Subsidiary; (xix) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the
ordinary course of business, as well as obligations under bids, trade contracts and leases
(exclusive of obligations for the payment of borrowed money) and cash deposits in connection with
acquisitions otherwise permitted hereby; (xx) Liens in favor of financial institutions arising in
connection with Borrower’s accounts maintained in the ordinary course of Borrower’s business held
at such institutions to secure standard fees for services charged by, but not financing made
available by, such institutions.



 









 





     “Permitted Refinancing Indebtedness” means any Indebtedness of the Borrower or any of
its Subsidiaries issued in exchange for, or the net proceeds of which are used to renew, refund,
refinance, replace, defease or discharge Permitted Indebtedness of the Borrower or any of its
Subsidiaries; provided that:



     (1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the
Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued
interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred
in connection therewith);



     (2) such Permitted Refinancing Indebtedness is unsecured or has a final maturity date later
than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater
than the Weighted Average Life to Maturity of, the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged; and



     (3) if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged
is subordinated in right of payment to the Loan, such Permitted Refinancing Indebtedness is
subordinated in right of payment to the Loan on terms at least as favorable to the Lenders as those
contained in the documentation governing the Indebtedness being renewed, refinanced, replaced,
defeased or discharged.



     “Person” means and includes any natural person, individual, partnership, joint
venture, corporation, trust, limited liability company, limited company, joint stock company,
unincorporated organization, government entity or any political subdivision or agency thereof, or
any other entity.



     “Receivables” means with respect to any date of determination, the amount shown as
such on the consolidated balance sheet of the Borrower and its Subsidiaries at the time such
balance sheet is filed with the SEC on Form 10-Q or Form 10-K under the Exchange Act or otherwise
made available to the Borrower’s stockholders.



     “Registration Rights Agreement” means the Registration Rights Agreement, dated as of
the date hereof, among the Borrower and the Lenders.



     “Requisite Lenders” shall mean at any time Lenders then holding more than 50% of the
sum of the aggregate unpaid principal amount of the Loan then outstanding.



     “SEC” means the United States Securities and Exchange Commission.



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



     “Security Agreement” means the Security Agreement, dated as of the date hereof, among
the Borrower and the Lenders granting to the Lenders a first priority security interest in the
collateral identified therein.



     “Subsidiary” means with respect to any Person, any corporation, partnership, trust,
limited liability company, association or other business entity of which more than 50% of the total
voting power of shares of stock or other ownership interests entitled (without regard to the
occurrence of any contingency) to vote in the election of the members of the board of directors or
equivalent



 









 







governing body is at the time owned or controlled, directly or indirectly by that Person or
one or more of the other Subsidiaries or Affiliates of that Person or a combination thereof.



     “Taxes” means all deductions or withholdings for any and all present and future taxes,
levies, imposts, stamp or other duties, fees, assessments, deductions, withholdings, all other
similar governmental charges, and all liabilities with respect thereto.



     “Warrants” means the warrants attached hereto as part of Exhibit C issued pursuant to
Section 2.9.



     Section 1.2 Interpretation. In this Agreement, unless the context otherwise requires, all
words and personal pronouns relating thereto shall be read and construed as the number and gender
of the party or parties requires and the verb shall be read and construed as agreeing with the
required word and pronoun; the division of this Agreement into Articles and Sections and the use of
headings and captions is for convenience of reference only and shall not modify or affect the
interpretation or construction of this Agreement or any of its provisions; the words “herein,”
“hereof,” “hereunder,” “hereinafter” and “hereto” and words of similar import refer to this
Agreement as a whole and not to any particular Article or Section hereof; the words “include,”
“including,” and derivations thereof shall be deemed to have the phrase “without limitation”
attached thereto unless otherwise expressly stated; references to a specified Article, Exhibit,
Section or Schedule shall be construed as a reference to that specified Article, Exhibit, Section
or Schedule of this Agreement; and any reference to any of the Financing Documents means such
document as the same shall be amended, supplemented or modified and from time to time in effect.



     Section 1.3 Business Day Adjustment. If the day by which a payment is due to be made is not a
Business Day, that payment shall be made by the next succeeding Business Day unless that next
succeeding Business Day falls in a different calendar month, in which case that payment shall be
made by the Business Day immediately preceding the day by which such payment is due to be made.



ARTICLE 2




AGREEMENT FOR THE LOAN




     Section 2.1 Use of Proceeds. The Borrower shall use the proceeds from the Loan for operating
expenses and general corporate purposes.



     Section 2.2 Disbursements. The Lenders agree to advance to Borrower Loans (a
“Disbursement”) in the amount for the first Disbursement of $27,500,000 and subsequent
Disbursements (without duplication) as set forth in Exhibit B, upon the Borrower’s request (a
“Disbursement Request”) in the form of Schedule 2, delivered to the Lenders not less than
15 Business Days prior to the date designated by the Borrower in the Disbursement Request for such
Disbursement. Against each Disbursement, the Borrower shall deliver to the Lenders a completed
receipt (the “Evidence of Disbursement”) in the form of Schedule 3, which receipt shall not
be effective until the Disbursement is actually advanced to the Borrower. The Borrower’s ability
to issue Disbursement Requests shall terminate on November 15, 2010. The Lenders shall fulfill
each Disbursement Request in accordance with their respective allocations set forth on Schedule 1
attached hereto.



 









 





     Section 2.3 Payment. (a) The Borrower shall remit the Final Payment to the Lenders on the
earlier to occur of (i) the Final Payment Date and (ii) except as contemplated by Section 5.6, upon
the written request of the Requisite Lenders, an Event of Default. The Borrower may prepay the
Loan at any time without premium or penalty.



     Section 2.4 Transaction Fee. On the date hereof, the Borrower has paid to Deerfield
Management Company, L.P. a transaction fee of $1,200,000.



     Section 2.5 Payments. Payments of any amounts due to the Lenders under this Agreement shall
be made in Dollars in immediately available funds prior to 11:00 a.m New York City time on such
date that any such payment is due, at such bank or places, as the Lenders shall from time to time
designate in writing at least 5 Business Days prior to the date such payment is due. The Borrower
shall pay all and any costs (administrative or otherwise) imposed by banks, clearing houses, or any
other financial institution, in connection with making any payments under any of the Financing
Documents, except for any costs imposed by the Lenders’ banking institutions.



     Section 2.6 Taxes, Duties and Fees.




     (a) The Borrower shall pay or cause to be paid all present and future Taxes (other than
Excluded Taxes, if any), if any, now or at any time hereafter levied or /imposed by any
Government Authority, by any department, agency, political subdivision or taxing or other
authority thereof or therein, by any organization of which the applicable Government
Authority is a member, or by any jurisdiction through which the Borrower makes payments
hereunder, on all amounts due under this Agreement, and all payments of principal and other
amounts due under this Agreement shall be made without deduction for or on account of any
such Taxes, except for Excluded Taxes, which may be deducted or withheld from payments made
by the Borrower only if such deduction or withholding is required by applicable law.




     (b) If the Borrower is required to withhold any such non-excluded Taxes or is prevented
by operation of law or otherwise from paying or causing to be paid such non-excluded Taxes
except for Excluded Taxes, the principal or other amounts due under this Agreement (as
applicable) shall be increased to such amount as shall be necessary to remit to the Lenders
the full amount they would have received (taking into account any such non-excluded Taxes
except for Excluded Taxes imposed on amounts payable by the Borrower under this
Section 2.6(b)) had such payment been made without deduction of such non-excluded Taxes (all
and any of such additional amounts, herein referred to as the “Additional Amounts”).




     (c) Notwithstanding anything to the contrary herein, Additional Amounts shall not be
payable to the extent the obligation to withhold or deduct (i) exists on the day a Lender
becomes a party to this Agreement or the date a new lending office is designated except to
the extent that such Lender was entitled at the time of such assignment or designation to
receive Additional Amounts, or (ii) would not have arisen but for the failure of a Lender or
assignee to deliver a properly completed and duly executed form establishing an exemption
from or reduction in Tax required under applicable law as a condition to the exemption or
reduction absent a change in applicable law (including treaties), which such Lender is
eligible to provide.



 









 






     (d) If Section 2.6(b) above applies and the Lenders so require the Borrower shall
deliver to the Lenders official tax receipts evidencing payment (or certified copies of
them) of the Additional Amounts within thirty (30) days of the date of payment.




     (e) If the Lenders receive a refund from a Government Authority to which the Borrower
has paid withholding Taxes pursuant to this Section 2.6, the Lenders shall pay such refund
to the Borrower.



     Section 2.7 Costs, Expenses and Losses.




     (a) If, as a result of any failure by the Borrower to pay any sums due under this
Agreement on the due date therefor (after the expiration of any applicable grace periods),
or to borrow in accordance with a Disbursement Request made pursuant to Section 2.2, the
Lenders shall incur costs, expenses and/or losses, by reason of the liquidation or
redeployment of deposits from third parties or in connection with obtaining funds to make or
maintain any Disbursement, the Borrower shall pay to the Lenders upon request by the
Lenders, the amount of such costs, expenses and/or losses within fifteen (15) days after
receipt by it of a certificate from the Lenders setting forth in reasonable detail such
costs, expenses and/or losses, along with supporting documentation. For the purposes of the
preceding sentence, “costs, expenses and/or losses” shall include, without limitation, any
interest paid or payable to carry any unpaid amount and any loss, premium, penalty or
expense which may be incurred in obtaining, liquidating or employing deposits of or
borrowings from third parties in order to make, maintain or fund the Loan or any portion
thereof.




     (b) If any Lender fails to disburse any additional portion of the Loan in accordance
with a Disbursement Request made pursuant to Section 2.2, the Loan amount then outstanding
shall be reduced by Disbursement Amount specified in the Disbursement Request.



     Section 2.8 Interest Rate. The principal amount outstanding under the Loan shall bear
interest at the Interest Rate (calculated on the basis of the actual number of days elapsed in each
month). Interest shall be paid quarterly in arrears commencing on June 1, 2009 and on the first
Business Day of each September, December, March and June thereafter.



     Section 2.9 Delivery of Warrants




     (a) On the date hereof, the Borrower shall issue to the Lenders Warrants to purchase an
aggregate of 3,750,000 shares of Common Stock at an initial Exercise Price (as defined in
the Warrants) of $3.13.




     (b) Concurrently with each Disbursement, the Borrower shall issue to Lenders Warrants
to purchase three hundred thousand (300,000) shares of Common Stock in the form annexed
hereto as Exhibit C containing an initial Exercise Price equal to 120% of the average of the
Volume Weighted Average Price (as defined in subsection (c) below) of the Common Stock for
each of the fifteen (15) consecutive Trading Days beginning with the first full Trading Day
following receipt by the Lenders of a Disbursement Request.



 









 






     (c) As used herein, the “Volume Weighted Average Price” for the Common Stock as
of any date means the volume weighted average price (based on regular hours trading) of the
Common Stock on the NASDAQ Global Select Market (“NASDAQ”) as reported by Bloomberg
Financial L.P. using the AQR function or an equivalent, reliable reporting service mutually
acceptable to and hereafter designated by the Lenders and the Borrower (“Bloomberg”)
or, if NASDAQ is not the principal trading market for the Common Stock, the volume weighted
average sale price of the Common Stock on the principal trading market for the Common Stock
on the principal securities exchange or trading market where the Common Stock is listed or
traded as reported by Bloomberg, or, if no volume weighted average sale price is reported
for the Common Stock, then the last closing trade price of the Common Stock as reported by
Bloomberg, or, if no last closing trading price is reported for the Common Stock by
Bloomberg, the average of the bid prices of any market makers for the Common Stock in the
over the counter market maintained by the Financial Industry Regulatory Authority, Inc. or
in the “pink sheets” maintained by the Pink OTC Market, Inc. If the Volume Weighted Average
Price cannot be calculated for the Common Stock on such date in the manner provided above,
the Volume Weighted Average Price shall be the fair market value as mutually determined by
the Lenders and the Borrower.




     (d) All Warrants issued pursuant to this Section 2.9 shall be allocated among the
Lenders as set forth on Schedule 1.




     (e) Notwithstanding anything herein to the contrary, the number of shares of Common
Stock into which a Warrant is exercisable and the Exercise Price of any such Warrant on any
relevant issue date pursuant to subsection (b) above shall be adjusted to reflect any
adjustments in the number of shares of Common Stock into which such Warrant is exercisable
that would have taken effect pursuant to the terms of the Warrant had such Warrant been
issued on the date hereof and remained outstanding through the date of such issuance.



     Section 2.9(A) Interest on Late Payments. Without limiting the remedies available to the
Lenders under the Financing Documents or otherwise, to the maximum extent permitted by applicable
law, if the Borrower fails to make any payment of principal or interest with respect to the Loan
when due (after the expiration of any applicable grace periods), the Borrower shall pay, in respect
of the outstanding principal amount and overdue interest of the Loan, interest at the rate per
annum equal to the Interest Rate plus eight percent (8%) for so long as such payment remains
outstanding. Such interest shall be payable on demand.



     Section 2.9 (B) Commitment to Provide Funding Fee. On each date interest is required to be
paid to the Lenders under this Agreement, the Borrower shall pay to the Lenders a fee (calculated
on the basis of the actual days elapsed in each month) of the product of (i) 2.75% per annum and
(ii) the difference between $60,000,000 and the aggregate principal amount of the Notes outstanding
on each day of the month, in accordance with their respective allocations set forth on Schedule 1
hereto.



ARTICLE 3




REPRESENTATIONS AND WARRANTIES




 









 





     Section 3.1 Representations and Warranties of the Borrower. The Borrower represents and
warrants as of the date hereof and as of each Disbursement Date as follows:



     (a) The Borrower is a corporation duly incorporated and validly existing under the laws
of the State of Delaware.




     (b) The Borrower is conducting its business in compliance with its Organizational
Documents. The Organizational Documents of the Borrower (including all amendments thereto)
as currently in effect have been made available to the Lenders and remain in full force and
effect with no defaults outstanding thereunder.




     (c) The Borrower has full power and authority to enter into each of the Financing
Documents and to make the borrowings and the other transactions contemplated thereby.




     (d) All authorizations, consents, approvals, registrations, exemptions and licenses
with or from Government Authorities or other Persons that are necessary for the conduct of
its business as currently conducted, for the borrowing hereunder, the execution and delivery
of the Financing Documents and the performance by the Borrower of the Obligations, have been
obtained and are in full force and effect, except (i) for such registrations and filings in
connection with the issuance of the Warrants and shares of Common Stock pursuant the
Financing Documents that are necessary to comply with federal and state securities laws,
rules and regulations, and (ii) filings contemplated by the Security Agreement.




     (e) Each Financing Document has been duly authorized, executed and delivered by the
Borrower and constitutes the valid and legally binding obligation of the Borrower,
enforceable in accordance with its terms, except as such enforceability may be limited by
(i) applicable insolvency, bankruptcy, reorganization, moratorium or other similar laws
affecting creditors’ rights generally, and (ii) applicable equitable principles (whether
considered in a proceeding at law or in equity).




     (f) No Default or Event of Default (or any other default or event of default, however
described) has occurred under any of the Financing Documents.




     (g) Neither the entering into any of the Financing Documents nor the compliance with
any of its terms conflicts with, violates or results in a breach of any of the terms of, or
constitutes a default or event of default (however described) or requires any consent under,
any agreement to which the Borrower is a party or by which it is bound, or violates any of
the terms of the Organizational Documents or any judgment, decree, resolution, award or
order or any statute, rule or regulation applicable to the Borrower or its assets.




     (h) The Borrower is not engaged in or the subject of any litigation, arbitration,
administrative regulatory compliance proceeding, or investigation, nor are there any
litigation, arbitration, administrative regulatory compliance proceedings or investigations
pending or, to the knowledge of the Borrower, threatened before any court or arbitrator or
before or by any Government Authority against the Borrower, except for those that have been
publicly disclosed in reports filed with the SEC and the Borrower is not aware of any facts
reasonably likely to give rise to any such proceedings other than as may have been publicly
disclosed in such reports.



 









 






     (i) The Borrower (i) is capable of paying its debts as they fall due, is not unable and
has not admitted its inability to pay debts as they fall due, (ii) is not bankrupt or
insolvent and (iii) has not taken action, and no such action has been taken by a third
party, for the Borrower’s winding up, dissolution, or liquidation or similar executory or
judicial proceeding or for the appointment of a liquidator, custodian, receiver, trustee,
administrator or other similar officer for the Borrower or any or all of its assets or
revenues.




     (j) No Lien exists on Borrower’s property, except for Permitted Liens.




     (k) The obligation of the Borrower to make any payment under this Agreement (together
with all charges in connection therewith) is absolute and unconditional, and there exists no
right of setoff or recoupment, counterclaim, cross-claim or defense of any nature whatsoever
to any such payment.



     Section 3.2 Borrower Acknowledgment. The Borrower acknowledges that it has made the
representations and warranties referred to in Section 3.1 with the intention of persuading the
Lenders to enter into the Financing Documents and that the Lenders have entered into the Financing
Documents on the basis of, and in full reliance on, each of such representations and warranties.
The Borrower represents and warrants to the Lenders that none of such representations and
warranties omits any matter the omission of which makes any of such representations and warranties
misleading.



     Section 3.3 Representations and Warranties of the Lenders. Each of the Lenders represents and
warrants to the Borrower as of the date hereof and as of each date Warrants are granted pursuant to
this Agreement that:




     (a) It is acquiring the Warrants and the shares of Common Stock issued upon exercise of
the Warrants (the “Exercise Shares”) solely for its account for investment and not
with a view to or for sale or distribution of the Warrants or Exercise Shares or any part
thereof. The entire legal and beneficial interests of the Warrants and Exercise Shares such
Lender is acquiring is being acquired for, and will be held for, its account only.




     (b) The Warrants and the Exercise Shares have not been registered under the Securities
Act on the basis that no distribution or public offering of the stock of the Borrower is to
be effected. It realizes that the basis for the exemptions may not be present if,
notwithstanding its representations, such Lender has a present intention of acquiring the
securities for a fixed or determinable period in the future, selling (in connection with a
distribution or otherwise), granting any participation in, or otherwise distributing the
securities. None of the Lenders has such present intention.




     (c) The Warrants and the Exercise Shares must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption for such registration is
available.




     (d) Neither the Warrants nor the Exercise Shares may be sold pursuant to Rule 144
adopted under the Securities Act unless certain conditions are met, including, among other
things, the existence of a public market for the shares, the availability of certain current
public information about the Borrower, the resale following the required holding period



 









 







under Rule 144 and the number of shares being sold during any three month period not
exceeding specified limitation.




     (e) It will not make any disposition of all or any part of the Warrants or Exercise
Shares until:




     (i) The Borrower shall have received a letter secured by such Lender from the
SEC stating that no action will be recommended to the SEC with respect to the
proposed disposition;




     (ii) There is then in effect a registration statement under the Securities Act
covering such proposed disposition and such disposition is made in accordance with
said registration statement; or




     (iii) Such Lender shall have notified the Borrower of the proposed disposition
and, in the case of a sale or transfer in a so-called “4(1) and a half” transaction,
shall have furnished counsel for the Borrower with an opinion of counsel,
substantially in the form annexed as Exhibit C to the Warrant. The Borrower agrees
that it will not require an opinion of counsel with respect to transactions under
Rule 144 of the Securities Act.




     (f) It understands and agrees that all certificates evidencing the shares to be issued
to the Lenders upon exercise of the Warrants may bear the following legend:




“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER SAID ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SAID ACT
INCLUDING, WITHOUT LIMITATION, PURSUANT TO RULES 144 OR 144A UNDER SAID ACT OR PURSUANT TO A
PRIVATE SALE EFFECTED UNDER APPLICABLE FORMAL OR INFORMAL SEC INTERPRETATION OR GUIDANCE,
SUCH AS A SO-CALLED “4(1) AND A HALF” SALE.”




“THE SALE, TRANSFER OR ASSIGNMENT OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS OF A CERTAIN REGISTRATION RIGHTS AGREEMENT DATED AS OF MARCH 13, 2009,
AS AMENDED FROM TIME TO TIME, AMONG THE COMPANY AND CERTAIN HOLDERS OF ITS OUTSTANDING
SECURITIES. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY.”




     (g) Such Lender is an “accredited investor” as defined in Regulation D promulgated the
Securities Act.




     (h) Such Lender is a limited partnership duly organized and validly existing under the
laws of the jurisdiction of its formation.



 









 






     (i) Each Financing Document to which it is a party has been duly authorized, executed
and delivered by such Lender and constitutes the valid and legally binding obligation of
such Lender, enforceable in accordance with its terms, except as such enforceability may be
limited by (i) applicable insolvency, bankruptcy, reorganization, moratorium or other
similar laws affecting creditors’ rights generally, and (ii) applicable equitable principles
(whether considered in a proceeding at law or in equity).




     (j) Such Lender agrees that (i) it does not hold a short position in the Common Stock
on the date hereof, (ii) it shall not enter into a short selling transaction with respect to
the Common Stock during the period commencing on receipt of a Disbursement Request and
ending on the date of the specific Disbursement that is the subject of the Disbursement
Request.



ARTICLE 4




[Intentionally omitted]




ARTICLE 5




BORROWER COVENANTS AND EVENTS OF DEFAULT




     Section 5.1 Affirmative Covenants. Unless the Lenders shall otherwise agree:




     (a) The Borrower shall (i) maintain its corporate existence and qualify and remain
qualified to do its business as currently conducted, except where the failure to so maintain
such qualification would not reasonably be expected to have a Material Adverse Effect and
(ii) maintain all approvals necessary for the Financing Documents to be in effect.




     (b) The Borrower shall comply in all material respects with all applicable laws,
rules, regulations and orders of any Government Authority, except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings or where the
failure to so comply, individually or in the aggregate, would not reasonably be expected to
have a Material Adverse Effect.




     (c) The Borrower shall obtain, make and keep in full force and effect all licenses,
contracts, consents, approvals and authorizations from and registrations with Government
Authorities that may be required to conduct its business, except to the extent that the
failure to do so would not reasonably be expected to have a Material Adverse Effect.




     (d) The Borrower shall promptly notify the Lenders of the occurrence of (i) any Default
or Event of Default; or (ii) any claims, litigation, arbitration, mediation or
administrative or regulatory proceedings that are instituted or threatened against the
Borrower; or (iii) each event which, at the giving of notice, lapse of time, determination
of materiality or fulfillment of any other applicable condition (or any combination of the
foregoing), would constitute an event of default (however described) under any of the
Financing Documents.



 









 






     (e) The Borrower shall comply with the terms of each of the Financing Documents.




     (f) (i) If the Borrower is not required to file reports pursuant to Sections 13 or
15(d) of the Exchange Act, the Borrower will provide quarterly financial statements for
itself and its Subsidiaries within 45 days after the end of each quarter, and annual
financial statements within 120 days after the end of each year; (ii) the Borrower will
timely file with the SEC (subject to appropriate extensions made under Rule 12b-25 of the
Exchange Act) any annual reports, quarterly reports and other periodic reports pursuant to
Section 13 or 15(d) of the Exchange Act; and (iii) the Borrower and its Subsidiaries will
provide to the Lenders copies of all documents, reports, financial data and other
information as the Lenders may reasonably request, and permit the Lenders to visit and
inspect any of the properties of the Borrower and its Subsidiaries, and to discuss its and
their affairs, finances and accounts with its and their officers, all at such times as the
Lenders may reasonably request; and (iv) the Lenders shall have the right to consult with
and advise the management of the Borrower and its Subsidiaries on matters relating to the
operation of the Borrower and it Subsidiaries.




     (g) The Borrower shall not issue any shares of Common Stock or securities convertible
or exercisable for Common Stock (an “Equity Financing”); except (i) in a registered public
offering or shelf takedown, (ii) in a transaction that does not require shareholder
approval, (iii) to partners in connection with a joint venture, distribution or other
partnering arrangement in a transaction that does not require shareholder approval,
(iv) upon the exercise of options granted to the Borrower’s employees, officers, directors
and consultants, (v) issuances of restricted stock to, or purchase of common stock under the
Borrower’s employee stock purchase plan by, employees, officers, directors or consultants or
(vi) upon the exercise of the Warrants. Borrower agrees to notify the Lenders as soon as
reasonably practicable prior to the consummation of an Equity Financing and in any event
simultaneously with the public announcement of any Equity Financing.



     Section 5.2 Negative Covenants. Unless the Requisite Lenders shall otherwise agree:




     (a) The Borrower shall not (i) liquidate or dissolve; (ii) enter into any merger,
consolidation or reorganization or transaction that has the same effect or (iii) sell or
transfer the Company’s assets in one transaction or a series of transactions for a purchase
price of more than $50,000,000, or (iv) sell or transfer more than 50% of the Company’s
assets.




     (b) The Borrower shall not (i) enter into any partnership, joint venture, syndicate,
pool, profit-sharing or royalty agreement or other combination, or engage in any transaction
with an Affiliate, whereby its income or profits are, or might be, shared with another
Person or enter into any management contract or similar arrangement whereby a substantial
part of its business is managed by another Person, (ii) distribute, or permit the
distribution of, any assets of the Borrower or its Subsidiaries, including its intangibles,
to any shareholders of the Borrower or the holder of any equity interest in any Subsidiary
of the Borrower or any of its Affiliates (other than the Borrower or a Subsidiary of the
Borrower); provided, however, that (A) with respect to the restrictions in clause (i), the
Borrower may enter into any collaborative arrangement, licensing agreement, joint venture or
partnership providing for the research, development or commercial exploitation of compounds,
products or services whereby payments received therefrom or its income or profits are, or
might be, shared in the ordinary course of business with another Person; and (B) with
respect to the restrictions in



 









 







clause (ii), royalties and other payments made by any partnership, joint venture,
syndicate, pool, profit-sharing or royalty agreement or other combination, to the parties
thereto in the ordinary course of business shall not be deemed to be a distribution of
assets. For purposes of clarity, the foregoing restrictions shall not limit the Borrower’s
ability to enter into international partnering arrangements, U.S. or international
distribution arrangements.




     (c) The Borrower shall not: (i) create, incur or suffer any Lien upon any of its
assets, now owned or hereafter acquired, except Permitted Liens; or (ii) assign, sell,
transfer or otherwise dispose of, any of the Financing Documents, or the rights and
obligations thereunder.




     (d) The Borrower shall not create, incur assume, guarantee or be remain liable with
respect to any Indebtedness, other than Permitted Indebtedness, or prepay any Indebtedness
(other than Permitted Indebtedness) or take any actions which impose on the Borrower an
obligation to prepay any Indebtedness, except Permitted Indebtedness.



     Section 5.3 Reimbursement of Taxes. The Borrower shall pay all Taxes, duties, fees or other
charges payable on or in connection with the execution, issue, delivery, registration, notarization
or enforcement of the Financing Documents and shall, upon notice from the Lenders, reimburse the
Lenders for any such Taxes, duties, fees or other charges paid by the Lenders thereon; provided,
however, that notwithstanding the foregoing, under no circumstances shall the Borrower have any
obligation to reimburse the Lenders for Excluded Taxes.



     Section 5.4 Major Transaction. If a Major Transaction occurs, the Lenders, in the exercise of
their sole discretion, may deliver a written notice to the Borrower (the “Put Notice”)
within 10 Business Days after the date of the announcement of such Major Transaction, that (a) 106%
of the outstanding principal of the Notes and (b) accrued and unpaid interest on the Notes, and (c)
any other amounts accrued or payable under the Financing Documents ((a), (b) and (c) together, the
“Put Price”) is immediately due and payable upon consummation of the Major Transaction. If
the Lenders deliver a Put Notice, then upon such consummation, the Borrower shall pay the Put Price
to the Lenders and the Obligations shall terminate.



     Section 5.5 General Acceleration Provision upon Events of Default. If one or more of the
events specified in this Section 5.5 shall have happened and be continuing beyond the applicable
cure period (each, an “Event of Default”), the Requisite Lenders, by written notice to the
Borrower, may cancel the Borrower’s right to request Disbursements and declare the principal of,
accrued and unpaid interest on, the Notes or any part of any of them (together with any other
amounts accrued or payable under this Agreement) to be, and the same shall thereupon become,
immediately due and payable, without any further notice and without any presentment, demand, or
protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further
action available at law or in equity, including, without limitation, the sale of the Loan and all
other rights acquired in connection with the Loan:




     (a) A Lender shall have failed to receive payment of (i) principal when due, or (ii)
interest and any other amounts due under the Loan or the Notes within five (5) Business Days
of their due date.




     (b) The Borrower shall have failed to comply with the due observance or performance of
any other covenant contained in this Agreement or any Note and such failure



 









 







could reasonable be expected to result in a Material Adverse Effect and shall not have
been cured by Borrower within 30 days after receiving written notice of such failure from
the Lenders.




     (c) Any representation or warranty made by the Borrower in any Financing Document shall
be have been incorrect, false or misleading as of the date it was made, deemed made,
reaffirmed or confirmed and as a result thereof, the Borrower could reasonably be expected
to incur a Material Adverse Effect.




     (d) (i) The Borrower shall generally be unable to pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts as they come due or shall make
a general assignment for the benefit of creditors; (ii) the Borrower shall declare a
moratorium on the payment of its debts; (iii) the commencement by the Borrower of
proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the
commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization, intervention or other similar relief
under any applicable law, or the consent by it to the filing of any such petition or to the
appointment of an intervenor, receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of all or substantially all of its assets; (iv) the commencement
against the Borrower of a proceeding in any court of competent jurisdiction under any
bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation,
winding up, dissolution, reorganization, arrangement, adjustment, or the appointment of an
intervenor, receiver, liquidator, assignee, trustee, sequestrator (or other similar
official), and any such proceeding shall continue undismissed, or any order, judgment or
decree approving or ordering any of the foregoing shall continue unstayed or otherwise in
effect, for a period of ninety (90) days; (v) the making by the Borrower of an assignment
for the benefit of creditors, or the admission by it in writing of its inability to pay its
debt generally as they become due; or (vi) any other event shall have occurred which under
any applicable law would have an effect analogous to any of those events listed above in
this subsection.




     (e) One or more judgments against the Borrower taken as a whole or attachments against
any of its property, which in the aggregate exceed $250,000, or which could have a Material
Adverse Effect remain(s) unpaid, unstayed on appeal, undischarged, unbonded or undismissed
for a period of thirty (30) days from the date of entry of such judgment.




     (f) Any license, permit or approval held by the Borrower from any Government Authority
shall have been suspended, canceled or revoked and such suspension, cancellation or
revocation could reasonably be expected to have a Material Adverse Effect, and such
suspension, cancellation or revocation shall not have been cured within 30 days.




     (g) Any authorization necessary for the execution, delivery or performance of any
Financing Document or for the validity or enforceability of any of the Obligations under any
Financing Document is not given or is withdrawn or ceases to remain in full force or effect.




     (h) The validity of or any Financing Document shall be contested by any legislative,
executive or judicial body of any jurisdiction, or any treaty, law, regulation, communiqué,
decree, ordinance or policy of any jurisdiction shall purport to render any material
provision of any Financing Document invalid or unenforceable or shall purport to



 









 







prevent or materially delay the performance or observance by the Borrower of the
Obligations, and the parties are unable to negotiate a replacement provision pursuant to
Section 6.7 below.




     (i) The Borrower has failed to comply in any material respect with the reporting
requirements of the Exchange Act, unless corrected by the Borrower promptly (if capable of
such correction) through the filing of an amendment to an existing report or making an
appropriate subsequent filing with the SEC.




     (j) There is a failure to perform in any agreement to which the Borrower is a party
with a third party or parties resulting in a right by such third party or parties to
accelerate the maturity of any Indebtedness for borrowed money in an amount in excess of
$250,000.




     (j) If an Event of Default pursuant to the Warrants (as such term is defined in the
Warrants) shall have occurred.




     (k) The sum of Cash, Cash Equivalents, Receivables and Finished Goods Inventory on the
last day of each calendar quarter is less than the greater of $15,000,000 or fifty percent
(50%) of the Loan then outstanding.




     (l) The shares of Common Stock cease to be listed, traded or publicly quoted on the
NASDAQ Global Market and are not promptly re-listed or requoted on either the New York Stock
Exchange, the NYSE Arca or the NASDAQ Stock Market LLC (or their respective successors).



     Section 5.6 Automatic Acceleration on Dissolution or Bankruptcy. Notwithstanding any other
provisions of this Agreement, if an Event of Default under Section 5.5(d) shall occur, the
principal of the Loan (together with any other amounts accrued or payable under this Agreement)
shall thereupon become immediately due and payable without any presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by the Borrower.



     Section 5.7 Recovery of Amounts Due. If any amount payable hereunder is not paid as and when
due, the Borrower hereby authorizes each Lender to proceed, to the fullest extent permitted by
applicable law, without prior notice, by right of set-off, banker’s lien or counterclaim, against
any moneys or other assets of the Borrower to the full extent of all amounts payable to the
Lenders.



ARTICLE 6




MISCELLANEOUS




     Section 6.1 Notices. Any notice, request or other communication to be given or made under
this Agreement shall be in writing. Such notice, request or other communication shall be deemed to
have been duly given or made when it shall be delivered by hand, overnight mail, international
courier (confirmed by facsimile), or facsimile (with a hard copy delivered within two (2) Business
Days) to the Party to which it is required or permitted to be given or made at such Party’s address
specified below or at such other address as such Party shall have designated by notice to the other
Parties.



 









 




For the Borrower:



Insulet Corporation

9 Oak Parks Drive

Bedford, MA 01730

Facsimile: (781) 457-5011

Attention: R. Anthony Diehl



with a courtesy copy to:



Goodwin Procter LLP

Exchange Place

Boston, MA 02109

Facsimile: (617) 523-1231

Attention: Raymond C. Zemlin

                  Jocelyn M. Arel



For the Lenders c/o:



Deerfield Private Design Fund, L.P.

780 Third Avenue, 37th Floor

New York, New York 10017

Facsimile: (212) 573-8111

Attention: James E. Flynn



with a courtesy copy to:



Katten Muchin Rosenman LLP

575 Madison Avenue

New York, New York 10022-2585

Facsimile: (212) 894-5827

Attention: Robert I. Fisher




     Section 6.2 Waiver of Notice. Whenever any notice is required to be given to the Lenders or
the Borrower under the any of the Financing Documents, a waiver thereof in writing signed by the
person or persons entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice.



     Section 6.3 Reimbursement of Legal and Other Expenses. If any amount owing to the Lenders
under any Financing Document shall be collected through enforcement of this Agreement, any
refinancing or restructuring of the Loan in the nature of a work-out, settlement, negotiation, or
any process of law, or shall be placed in the hands of third Persons for collection, the Borrower
shall pay (in addition to all monies then due in respect of the Loan or otherwise payable under any
Financing Document) reasonable, documented attorneys’ and other fees and expenses reasonably
incurred by the Lenders in respect of such collection.



     Section 6.4 Applicable Law and Consent to Non-Exclusive New York Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the State of New



 









 







York, without giving effect to the conflicts of laws principles thereof other than Sections
5-1401 and 5-1402 of the General Obligations Law of such State.




     (a) Any rights of the Lenders arising out of or relating to any Financing Document,
may, at the option of the Lenders, be enforced by the Lenders in the courts of the United
States of America located in the Southern District of the State of New York or in any other
courts having jurisdiction. For the benefit of the Lenders, the Borrower hereby
irrevocably agrees that any legal action, suit or other proceeding arising out of any
Financing Document may be brought in the courts of the State of New York or of the United
States of America for the Southern District of New York. The Borrower irrevocably consents
to the service of any and all process in any such legal action, suit or other proceeding by
the mailing of copies of such process to the Borrower at its address specified in Section
6.1 by registered mail, return receipt requested. By the execution and delivery of this
Agreement, the Borrower hereby irrevocably consents and submits to the jurisdiction of any
such court in any such action, suit or other proceeding. Final judgment against the
Borrower in any such action, suit or other proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment. Nothing contained in any
Financing Document shall affect the right of the Lenders to commence legal proceedings in
any court having jurisdiction, or concurrently in more than one jurisdiction, or to serve
process, pleadings and other legal papers upon the Borrower in any manner authorized by the
laws of any such jurisdiction.




     (b) The Borrower irrevocably waives, to the fullest extent permitted by applicable
law, any objection which it may now or hereafter have to the laying of venue of any action,
suit or other proceeding arising out of or relating to any Financing Document, brought in
the courts of the State of New York or in the United States District Court for the Southern
District of New York, and any claim that any such action, suit or other proceeding brought
in any such court has been brought in an inconvenient forum.




     (c) The Borrower hereby waives any and all rights to demand a trial by jury in any
action, suit or other proceeding arising out of any Financing Document or the transactions
contemplated by any Financing Document.




     (d) To the extent that the Parties may, in any suit, action or other proceeding
brought in any court arising out of or in connection with any Financing Document, be
entitled to the benefit of any provision of law requiring the Borrower or the Lenders, as
applicable, in such suit, action or other proceeding to post security for the costs of the
Borrower or the Lenders, as applicable, or to post a bond or to take similar action, the
Parties hereby irrevocably waive such benefit, in each case to the fullest extent now or
hereafter permitted under any applicable laws.



     Section 6.5 Successor and Assigns. This Agreement shall bind and inure to the respective
successors and assigns of the Parties, except that the Borrower may not assign or otherwise
transfer all or any part of its rights under this Agreement or the Obligations without the prior
written consent of each Lender. Notwithstanding anything to the contrary contained herein, if any
assignment or participation is to any Person that is not a “United States person” within the
meaning of Section 7701(a)(30) of the Code, then such Person shall submit to the Borrower, on or
before the date of such assignment or participation an IRS Form W-8BEN (or any successor form)
certifying as to such Person’s status for purposes of determining exemption from United States



 









 







withholding tax, information reporting and backup withholding with respect to all payments to
be made to such Person. Any attempted assignment or participation in violation of this Section 6.5
shall be void and of no force and effect.



     Section 6.6 Entire Agreement. The Financing Documents contain the entire understanding of the
Parties with respect to the matters covered thereby and supersede any and all other written and
oral communications, negotiations, commitments and writings with respect thereto. The provisions
of this Agreement may be waived, modified, supplemented or amended only by an instrument in writing
signed by the authorized officer of each Party.



     Section 6.7 Severability. If any provision contained in this Agreement shall be invalid,
illegal or unenforceable in any respect under any law, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby. The Parties shall
endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to that of the
invalid, illegal or unenforceable provision.



     Section 6.8 Counterparts. This Agreement may be executed in several counterparts, and by each
Party on separate counterparts, each of which and any photocopies and facsimile copies thereof
shall be deemed an original, but all of which together shall constitute one and the same agreement.



     Section 6.9 Survival.




     (a) This Agreement and all agreements, representations and warranties made in the
Financing Documents, and in any document, certificate or statement delivered pursuant
thereto or in connection therewith shall be considered to have been relied upon by the
other Parties and shall survive the execution and delivery of this Agreement and the making
of the Loan hereunder regardless of any investigation made by any such other Party or on
its behalf, and shall continue in force until all amounts payable under the Financing
Documents shall have been fully paid in accordance with the provisions hereof and thereof,
and the Lenders shall not be deemed to have waived, by reason of making the Loan, any
Default that may arise by reason of such representation or warranty proving to have been
false or misleading, notwithstanding that the Lenders may have had notice or knowledge of
any such Default or may have had notice or knowledge that such representation or warranty
was false or misleading at the time any Disbursement was made hereunder.




     (b) The obligations of the Borrower under Section 2.6 and the obligations of the
Borrower and the Lenders under this Article VI hereof shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loan, or the termination of this Agreement or any provision hereof.



     Section 6.10 Waiver. Neither the failure of, nor any delay on the part of, any Party in
exercising any right, power or privilege hereunder, or under any agreement, document or instrument
mentioned herein, shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege hereunder, or under any agreement, document or instrument mentioned
herein, preclude other or further exercise thereof or the exercise of any other right, power or
privilege; nor shall any waiver of any right, power, privilege or default hereunder, or under any
agreement, document or instrument mentioned herein, constitute a waiver of any other right, power,



 









 







privilege or default or constitute a waiver of any default of the same or of any other term or
provision. No course of dealing and no delay in exercising, or omission to exercise, any right,
power or remedy accruing to the Lenders upon any default under this Agreement, or any other
agreement shall impair any such right, power or remedy or be construed to be a waiver thereof or an
acquiescence therein; nor shall the action of the Lenders in respect of any such default, or any
acquiescence by it therein, affect or impair any right, power or remedy of the Lenders in respect
of any other default. All rights and remedies herein provided are cumulative and not exclusive of
any rights or remedies otherwise provided by law.



     Section 6.11 Indemnity.




     (a) The Parties shall, at all times, indemnify and hold each other harmless (the
“Indemnity”) and each of their respective directors, partners, officers, employees,
agents, counsel and advisors (each, an “Indemnified Person”) in connection with any
losses, claims (including the cost of defending against such claims), damages, liabilities,
penalties, or other expenses arising out of, or relating to, the Financing Documents, the
extension of credit hereunder or the Loan or the use or intended use of the Loan, which an
Indemnified Person may incur or to which an Indemnified Person may become subject (each, a
“Loss”). The Indemnity shall not apply to the extent that a court or arbitral
tribunal with jurisdiction over the subject matter of the Loss, and over the Lenders or the
Borrower, as applicable, and such other Indemnified Person that had an adequate opportunity
to defend its interests, determines that such Loss resulted from the gross negligence or
willful misconduct of the Indemnified Person, which determination results in a final,
non-appealable judgment or decision of a court or tribunal of competent jurisdiction. The
Indemnity is independent of and in addition to any other agreement of any Party under any
Financing Document to pay any amount to the Lenders or the Borrower, as applicable, and any
exclusion of any obligation to pay any amount under this subsection shall not affect the
requirement to pay such amount under any other section hereof or under any other agreement.




     (b) Without prejudice to the survival of any other agreement of any of the Parties
hereunder, the agreements and the obligations of the Parties contained in this Section 6.11
shall survive the termination of each other provision hereof and the payment of all amounts
payable to the Lenders hereunder.



     Section 6.12 No Usury. The Financing Documents are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of acceleration or otherwise, shall the amount
paid or agreed to be paid to the Lenders for the Loan exceed the maximum amount permissible under
applicable law. If from any circumstance whatsoever fulfillment of any provision hereof, at the
time performance of such provision shall be due, shall involve transcending the limit of validity
prescribed by law, then, ipso facto, the obligation to be fulfilled shall be reduced to the limit
of such validity, and if from any such circumstance the Lenders shall ever receive anything which
might be deemed interest under applicable law, that would exceed the highest lawful rate, such
amount that would be deemed excessive interest shall be applied to the reduction of the principal
amount owing on account of the Loan, or if such deemed excessive interest exceeds the unpaid
balance of principal of the Loan, such deemed excess shall be refunded to the Borrower. All sums
paid or agreed to be paid to the Lenders for the Loan shall, to the extent permitted by applicable
law, be deemed to be amortized, prorated, allocated and spread throughout the full term of the Loan
until payment in full so that the deemed rate of interest on account of the Loan is uniform
throughout the



 









 







term thereof. The terms and provisions of this paragraph shall control and supersede every
other provision of this Agreement and the Notes.



     Section 6.13 Further Assurances. From time to time, the Borrower shall perform any and all
acts and execute and deliver to the Lenders such additional documents as may be necessary or as
requested by the Lenders to carry out the purposes of any Financing Document or any or to preserve
and protect the Lenders’ rights as contemplated therein.



     Section 6.14 Amendments and Waivers. This Agreement may be amended and any provision waived
only in writing signed by the Borrower and the Requisite Lenders.



     Section 6.15 Right to Assign. No Lender may at any time, sell, transfer, or assign all or a
portion of its rights and obligations hereunder (including all or a portion of its rights and
obligations with respect to the Notes), except to (i) any existing Lender, (ii) any Affiliate or
Approved Fund of any existing Lender or (iii) any other Person acceptable (which acceptance shall
not be reasonably withheld or delayed) to the Borrower; provided, however, that prior to the
disbursement of the full amount of the Loan the aggregate outstanding principal amount (determined
as of the effective date of the applicable Assignment) of the Notes subject to any such sale,
transfer or assignment shall be in a minimum amount of $7,000,000, unless such transfer is made to
an existing Lender or an Affiliate or Approved Fund of any existing Lender, is of the assignor’s
(together with its Affiliates and Approved Funds) entire interest hereunder or is made with the
prior consent of the Borrower.



[SIGNATURE PAGE FOLLOWS]




 









 




     IN WITNESS WHEREOF, the undersigned Lender and the Borrower have caused this Agreement to be
duly executed as of the 13th day of March, 2009.



	 	 	 	 	 	 	 	 	 
	BORROWER	 	 	 	LENDER
	INSULET CORPORATION.	 	 	 	DEERFIELD PRIVATE DESIGN FUND, L.P.
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Duane DeSisto
	 	 	 	By:
	 	/s/ James Flynn
	 

	 	 
	 	 	 	 	 	 
	 

	 	Name: Duane DeSisto
	 	 	 	 	 	Name James Flynn
	 

	 	Title: President and Chief
Executive Officer
	 	 	 	 	 	Title General Partner
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	DEERFIELD PRIVATE DESIGN
INTERNATIONAL, L.P.
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ James Flynn
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name James Flynn
	 

	 	 	 	 	 	 	 	Title General Partner
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	DEERFIELD PARTNERS, L.P.
	 

	 	 	 	 	 	By:
	 	/s/ James Flynn
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name James Flynn
	 

	 	 	 	 	 	 	 	Title General Partner
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	DEERFIELD INTERNATIONAL LIMITED
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:
	 	/s/ James Flynn
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Name James Flynn
	 

	 	 	 	 	 	 	 	Title General Partner





The following Exhibits and Schedules
to the Facility Agreement have been omitted in accordance
with Item 601(b)(2) of Regulation S-K.


EXHIBITS


Exhibit A   Form of Note


Exhibit B   Disbursements


SCHEDULE


Schedule 1   Schedule of Lenders  	 	


Schedule 2   Form of Disbursement Request


Schedule 3   Form of Evidence of Disbursement		


Insulet Corporation will furnish supplementally
a copy of any omitted or partially omitted schedule or exhibit to the Securities and Exchange
Commission upon request; provided, however, that Insulet Corporation may request confidential
treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any
schedule or exhibit so furnished.