EXHIBIT 10.1
CUBIST PHARMACEUTICALS, INC.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of
October 15, 1999 by and among (i) Cubist Pharmaceuticals, Inc., a Delaware
corporation (the "COMPANY"), (ii) each person listed on EXHIBIT A attached
hereto (collectively, the "INITIAL INVESTORS" and each individually, an "INITIAL
INVESTOR"), and (iii) each person or entity that subsequently becomes a party to
this Agreement pursuant to, and in accordance with, the provisions of Section 12
hereof (collectively, the "INVESTOR PERMITTED TRANSFEREES" and each individually
an "INVESTOR PERMITTED TRANSFEREE").
WHEREAS, the Company has agreed to issue and sell to the Initial
Investors, and the Initial Investors have agreed to purchase from the Company,
2,503,333 shares (the "PURCHASED SHARES") of the Company's common stock, $0.001
par value per share (the "COMMON STOCK"), all upon the terms and conditions set
forth in that certain Stock Purchase Agreement, dated of even date herewith,
between the Company and the Initial Investors (the "STOCK PURCHASE AGREEMENT");
and
WHEREAS, the terms of the Stock Purchase Agreement provide that it
shall be a condition precedent to the closing of the transactions thereunder,
for the Company and the Initial Investors to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings
provided therefor below or elsewhere in this Agreement as described below:
"BOARD" shall mean the board of directors of the Company.
"CLOSING" shall have the meaning ascribed to such term in the Stock
Purchase Agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and all of the rules and regulations promulgated thereunder.
"INVESTORS" shall mean, collectively, the Initial Investors and the
Investor Permitted Transferees; PROVIDED, HOWEVER, that the term "INVESTORS"
shall not include any of the Initial Investors or any of the Investor
Permitted Transferees that ceases to own or hold any Purchased Shares.
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"MAJORITY HOLDERS" shall mean, at the relevant time of reference
thereto, those Investors holding and/or having the right to acquire, as the
case may be, more than fifty percent (50%) of the Registrable Shares held by
all of the Investors.
"QUALIFYING HOLDER" shall have the meaning ascribed thereto in Section
12 hereof.
"REGISTRABLE SHARES" shall mean the Purchased Shares, PROVIDED,
HOWEVER, such term shall not, after the Mandatory Registration Termination Date,
include any of the Purchased Shares that become or have become eligible for
resale pursuant to Rule 144 or pursuant to Regulation S.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act and
any successor or substitute rule, law or provision.
"SEC" shall mean the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and
all of the rules and regulations promulgated thereunder.
2. EFFECTIVENESS; TERMINATION. This Agreement shall become
effective and legally binding only if the Closing occurs. This Agreement
shall terminate and be of no further force or effect, automatically and
without any action being required of any party hereto, upon the termination
of the Stock Purchase Agreement pursuant to Section 8 thereof.
3. MANDATORY REGISTRATION.
(a) Within ten (10) business days after the Closing, the Company will
prepare and file with the SEC a registration statement on Form S-3 for the
purpose of registering under the Securities Act all of the Registrable Shares
for resale by, and for the account of, the Investors as selling stockholders
thereunder (the "REGISTRATION STATEMENT"). The Registration Statement shall
permit the Investors to offer and sell, on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act, any or all of the Registrable
Shares. The Company agrees to use reasonable efforts to cause the Registration
Statement to become effective as soon as practicable. The Company shall be
required to keep the Registration Statement effective until such date that is
the earlier of (i) the date when all of the Registrable Shares registered
thereunder shall have been sold or (ii) the second anniversary of the Closing,
subject to extension as set forth below (such date is referred to herein as the
"MANDATORY REGISTRATION TERMINATION DATE"). Thereafter, the Company shall be
entitled to withdraw the Registration Statement and the Investors shall have no
further right to offer or sell any of the Registrable Shares pursuant to the
Registration Statement (or any prospectus relating thereto). In the event the
right of the selling Investors to use the Registration Statement (and the
prospectus relating thereto) is delayed or suspended pursuant to Sections 5(c)
or 11 hereof, the Company shall be required to extend the Mandatory Registration
Termination Date beyond the second anniversary of the Closing by the same number
of days as such delay or Suspension Period (as defined in Section 11 hereof).
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(b) The offer and sale of the Registrable Shares pursuant to the
Registration Statement shall not be underwritten.
4. "PIGGYBACK" REGISTRATION RIGHTS.
(a) If, at any time after the Mandatory Registration Termination
Date, the Company proposes to register any of its Common Stock under the
Securities Act, whether as a result of a primary or secondary offering of
Common Stock or pursuant to registration rights granted to holders of other
securities of the Company (but excluding in all cases any registrations to be
effected on Forms S-4 or S-8 or other applicable successor Forms), the
Company shall, each such time, give to the Investors holding Registrable
Shares written notice of its intent to do so. Upon the written request of any
such Investor given within 20 days after the giving of any such notice by the
Company, the Company shall use reasonable efforts to cause to be included in
such registration the Registrable Shares of such selling Investor, to the
extent requested to be registered; PROVIDED that (i) the number of
Registrable Shares proposed to be sold by such selling Investor is equal to
at least seventy-five percent (75%) of the total number of Registrable Shares
then held by such participating selling Investor, (ii) such selling Investor
agrees to sell those of its Registrable Shares to be included in such
registration in the same manner and on the same terms and conditions as the
other shares of Common Stock which the Company proposes to register, and
(iii) if the registration is to include shares of Common Stock to be sold for
the account of the Company or any party exercising demand registration rights
pursuant to any other agreement with the Company, the proposed managing
underwriter does not advise the Company that in its opinion the inclusion of
such selling Investor's Registrable Shares (without any reduction in the
number of shares to be sold for the account of the Company or such party
exercising demand registration rights) is likely to affect materially and
adversely the success of the offering or the price that would be received for
any shares of Common Stock offered, in which case the rights of such selling
Investor shall be as provided in Section 4(b) hereof.
(b) If a registration pursuant to Section 4(a) hereof involves an
underwritten offering and the managing underwriter shall advise the Company
in writing that, in its opinion, the number of shares of Common Stock
requested by the Investors to be included in such registration is likely to
affect materially and adversely the success of the offering or the price that
would be received for any shares of Common Stock offered in such offering,
then, notwithstanding anything in Section 4(a) to the contrary, the Company
shall only be required to include in such registration, to the extent of the
number of shares of Common Stock which the Company is so advised can be sold
in such offering, (i) first, the number of shares of Common Stock proposed to
be included in such registration for the account of the Company and/or any
stockholders of the Company (other than the Investors) that have exercised
demand registration rights, in accordance with the priorities, if any, then
existing among the Company and/or such stockholders of the Company with
registration rights (other than the Investors), and (ii) second, the shares
of Common Stock requested to be included in such registration by all other
stockholders of the Company who have piggyback registration rights
(including, without limitation, the Investors), PRO RATA among such other
stockholders (including, without limitation, the
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Investors) on the basis of the number of shares of Common Stock that each of
them requested to be included in such registration.
(c) In connection with any offering involving an underwriting of
shares, the Company shall not be required under Section 4 hereof or otherwise
to include the Registrable Shares of any Investor therein unless such
Investor accepts and agrees to the terms of the underwriting, which shall be
reasonable and customary, as agreed upon between the Company and the
underwriters selected by the Company.
5. OBLIGATIONS OF THE COMPANY. In connection with the Company's
obligation under Section 3 and 4 hereof to file the Registration Statement with
the SEC and to use its best efforts to cause the Registration Statement to
become effective as soon as practicable, the Company shall, as expeditiously as
reasonably possible:
(a) Prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all
Registrable Shares covered by the Registration Statement;
(b) Furnish to the selling Investors such number of copies of
a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents
(including, without limitation, prospectus amendments and supplements
as are prepared by the Company in accordance with Section 5(a) above)
as the selling Investors may reasonably request in order to facilitate
the disposition of such selling Investors' Registrable Shares;
(c) Notify the selling Investors, at any time when a
prospectus relating to the Registration Statement is required to be
delivered under the Securities Act, of the happening of any event as a
result of which the prospectus included in or relating to the
Registration Statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not
misleading; and, thereafter, the Company will promptly prepare (and,
when completed, give notice to each selling Investor) a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Shares, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading; PROVIDED that
upon such notification by the Company, the selling Investors will not
offer or sell Registrable Shares until the Company has notified the
selling Investors that it has prepared a supplement or amendment to
such prospectus and delivered copies of such supplement or amendment to
the selling Investors (it being understood and agreed by the Company
that the foregoing proviso shall in no way diminish or otherwise impair
the Company's obligation to promptly prepare a prospectus amendment or
supplement as above provided in this Section 5(c) and deliver copies of
same as above provided in Section 5(b) hereof); and
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(e) Use commercially reasonable efforts to register and
qualify the Registrable Shares covered by the Registration Statement
under such other securities or Blue Sky laws of such jurisdictions as
shall be reasonably appropriate in the opinion of the Company and the
managing underwriters, if any, PROVIDED that the Company shall not be
required in connection therewith or as a condition thereto to qualify
to do business or to file a general consent to service of process in
any such states or jurisdictions, and PROVIDED FURTHER that
(notwithstanding anything in this Agreement to the contrary with
respect to the bearing of expenses) if any jurisdiction in which any of
such Registrable Shares shall be qualified shall require that expenses
incurred in connection with the qualification therein of any such
Registrable Shares be borne by the selling Investors, then the selling
Investors shall, to the extent required by such jurisdiction, pay their
PRO RATA share of such qualification expenses.
6. FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Agreement
that the selling Investors shall furnish to the Company such information
regarding them and the securities held by them as the Company shall
reasonably request and as shall be required in order to effect any
registration by the Company pursuant to this Agreement.
7. EXPENSES OF REGISTRATION. All expenses incurred in
connection with the registration of the Registrable Shares pursuant to this
Agreement (excluding underwriting, brokerage and other selling commissions
and discounts), including without limitation all registration and
qualification and filing fees, printing, and fees and disbursements of
counsel for the Company, shall be borne by the Company.
8. DELAY OF REGISTRATION. The Investors shall not take any
action to restrain, enjoin or otherwise delay any registration as the result
of any controversy which might arise with respect to the interpretation or
implementation of this Agreement.
9. INDEMNIFICATION.
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each selling Investor, any investment banking firm acting as an
underwriter for the selling Investors, any broker/dealer acting on behalf of any
selling Investors and each officer and director of such selling Investor, such
underwriter, such broker/dealer and each person, if any, who controls such
selling Investor, such underwriter or broker/dealer within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue or alleged untrue statement
of any material fact contained in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading; and will reimburse such
selling Investor, such underwriter, broker/dealer or such officer, director
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or controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the indemnity agreement
contained in this Section 9(a) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such case for
any such loss, damage, liability or action to the extent that it arises out
of or is based upon an untrue statement or alleged untrue statement or
omission made in connection with the Registration Statement, any preliminary
prospectus or final prospectus relating thereto or any amendments or
supplements to the Registration Statement or any such preliminary prospectus
or final prospectus, in reliance upon and in conformity with written
information furnished expressly for use in connection with the Registration
Statement or any such preliminary prospectus or final prospectus by the
selling Investors, any underwriter for them or controlling person with
respect to them.
(b) To the extent permitted by law, each selling Investor will
severally and not jointly indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the Registration Statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, any investment banking firm acting as underwriter for the Company or the
selling Investors, or any broker/dealer acting on behalf of the Company or any
selling Investors, and all other selling Investors against any losses, claims,
damages or liabilities to which the Company or any such director, officer,
controlling person, underwriter, or broker/dealer or such other selling Investor
may become subject to, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereto) arise out
of or are based upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement or any preliminary prospectus or final
prospectus, relating thereto or in any amendments or supplements to the
Registration Statement or any such preliminary prospectus or final prospectus,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent and only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, in reliance upon and in conformity with written information
furnished by the selling Investor expressly for use in connection with the
Registration Statement, or any preliminary prospectus or final prospectus; and
such selling Investor will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, controlling person,
underwriter, broker/dealer or other selling Investor in connection with
investigating or defending any such loss, claim, damage, liability or action,
PROVIDED, HOWEVER, that the liability of each selling Investor hereunder shall
be limited to the proceeds (net of underwriting discounts and commissions, if
any) received by such selling Investor from the sale of Registrable Shares
covered by the Registration Statement, and PROVIDED, FURTHER, HOWEVER, that the
indemnity agreement contained in this Section 9(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the
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consent of those selling Investor(s) against which the request for indemnity
is being made (which consent shall not be unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this Section 9
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 9, notify the indemnifying party in writing of the commencement thereof
and the indemnifying party shall have the right to participate in and, to the
extent the indemnifying party desires, jointly with any other indemnifying party
similarly noticed, to assume at its expense the defense thereof with counsel
mutually satisfactory to the indemnifying parties with the consent of the
indemnified party which consent will not be unreasonably withheld, conditioned
or delayed. In the event that the indemnifying party assumes any such defense,
the indemnified party may participate in such defense with its own counsel and
at its own expense, PROVIDED, HOWEVER, that the counsel for the indemnifying
party shall act as lead counsel in all matters pertaining to such defense or
settlement of such claim and the indemnifying party shall only pay for such
indemnified party's expenses for the period prior to the date of its
participation on such defense. The failure to notify an indemnifying party
promptly of the commencement of any such action, if prejudicial to his ability
to defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 9, but the omission so to notify the
indemnifying party will not relieve him of any liability which he may have to
any indemnified party otherwise other than under this Section 9.
(d) Notwithstanding anything to the contrary herein, the indemnifying
party shall not be entitled to settle any claim, suit or proceeding unless in
connection with such settlement the indemnified party receives an unconditional
release with respect to the subject matter of such claim, suit or proceeding and
such settlement does not contain any admission of fault by the indemnified
party.
10. REPORTS UNDER THE EXCHANGE ACT. With a view to making
available to the Investors the benefits of Rule 144 and any other rule or
regulation of the SEC that may at any time permit the Investors to sell the
Purchased Shares to the public without registration, the Company agrees to
use commercially reasonable efforts: (i) to make and keep public information
available, as those terms are understood and defined in the General
Instructions to Form S-3, or any successor or substitute form, and in Rule
144, (ii) to file with the SEC in a timely manner all reports and other
documents required to be filed by an issuer of securities registered under
the Securities Act or the Exchange Act, (iii) as long as any Investor owns
any Purchased Shares, to furnish in writing upon such Investor's request a
written statement by the Company that it has complied with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act, and
to furnish to such Investor a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed by the
Company as may be reasonably requested in availing such Investor of any rule
or regulation of the SEC permitting the selling of any such Purchased Shares
without registration and (iv) undertake any additional actions reasonably
necessary to maintain the availability of the Registration Statement or the
use of Rule 144.
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11. DEFERRAL. Notwithstanding anything in this Agreement to the
contrary, if the Company shall furnish to the selling Investors a certificate
signed by the President or Chief Executive Officer of the Company stating
that the Board of Directors of the Company has made the good faith
determination (i) that continued use by the selling Investors of the
Registration Statement for purposes of effecting offers or sales of
Registrable Shares pursuant thereto would require, under the Securities Act,
premature disclosure in the Registration Statement (or the prospectus
relating thereto) of material, nonpublic information concerning the Company,
its business or prospects or any proposed material transaction involving the
Company, (ii) that such premature disclosure would be materially adverse to
the Company, its business or prospects or any such proposed material
transaction or would make the successful consummation by the Company of any
such material transaction significantly less likely and (iii) that it is
therefore essential to suspend the use by the Investors of such Registration
Statement (and the prospectus relating thereto) for purposes of effecting
offers or sales of Registrable Shares pursuant thereto, then the right of the
selling Investors to use the Registration Statement (and the prospectus
relating thereto) for purposes of effecting offers or sales of Registrable
Shares pursuant thereto shall be suspended for a period (the "Suspension
Period") of not more than 90 days after delivery by the Company of the
certificate referred to above in this Section 11. During the Suspension
Period, none of the Investors shall offer or sell any Registrable Shares
pursuant to or in reliance upon the Registration Statement (or the prospectus
relating thereto).
12. TRANSFER OF REGISTRATION RIGHTS. None of the rights of any
Investor under this Agreement shall be transferred or assigned to any person
unless (i) such person is a Qualifying Holder (as defined below), and (ii)
such person agrees to become a party to, and bound by, all of the terms and
conditions of, this Agreement by duly executing and delivering to the Company
an Instrument of Adherence in the form attached as EXHIBIT B hereto. For
purposes of this Section 12, the term "QUALIFYING HOLDER" shall mean, with
respect to any Investor, (i) any partner thereof, (ii) any corporation,
partnership controlling, controlled by, or under common control with, such
Investor or any partner thereof, or (iii) any other direct transferee from
such Investor of at least 50% of those Registrable Shares held or that may be
acquired by such Investor. None of the rights of any Investor under this
Agreement shall be transferred or assigned to any Person (including, without
limitation, a Qualifying Holder) that acquires Registrable Shares in the
event that and to the extent that such Person is eligible to resell such
Registrable Shares pursuant to Rule 144(k) of the Securities Act or may
otherwise resell such Registrable Shares pursuant to an exemption from the
registration provisions of the Securities Act.
13. ENTIRE AGREEMENT. This Agreement constitutes and contains
the entire agreement and understanding of the parties with respect to the
subject matter hereof, and it also supersedes any and all prior negotiations,
correspondence, agreements or understandings with respect to the subject
matter hereof.
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14. MISCELLANEOUS.
(a) This Agreement may not be amended, modified or
terminated, and no rights or provisions may be waived, except with the
written consent of the Majority Holders and the Company.
(b) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Massachusetts,
and shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, personal representatives, successors or assigns,
PROVIDED that the terms and conditions of Section 12 hereof are satisfied.
This Agreement shall also be binding upon and inure to the benefit of any
transferee of any of the Purchased Shares PROVIDED that the terms and
conditions of Section 12 hereof are satisfied. Notwithstanding anything in
this Agreement to the contrary, if at any time any Investor shall cease to
own any Purchased Shares, all of such Investor's rights under this Agreement
shall immediately terminate.
(c) (i) Any notices, reports or other correspondence
(hereinafter collectively referred to as "CORRESPONDENCE") required or permitted
to be given hereunder shall be sent by courier (overnight or same day) or
telecopy or delivered by hand to the party to whom such correspondence is
required or permitted to be given hereunder. The date of giving any notice shall
be the date of its actual receipt.
(ii) All correspondence to the Company shall
be addressed as follows:
Cubist Pharmaceuticals, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx,
President and Chief Executive Officer
Telecopier (000) 000-0000
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
and
Xxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
(iii) All correspondence to any Investor shall be
sent to such Purchaser at the address set forth in EXHIBIT A.
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(d) Any entity may change the address to which
correspondence to it is to be addressed by notification as provided for
herein.
(e) The parties acknowledge and agree that in the event of
any breach of this Agreement, remedies at law may be inadequate, and each of
the parties hereto shall be entitled to seek specific performance of the
obligations of the other parties hereto and such appropriate injunctive
relief as may be granted by a court of competent jurisdiction.
(f) This Agreement may be executed in a number of
counterparts, any of which together shall for all purposes constitute one
Agreement, binding on all the parties hereto notwithstanding that all such
parties have not signed the same counterpart.
[Remainder of page intentionally left blank. Signature pages follow.]
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date and year first above written.
CUBIST PHARMACEUTICALS, INC.
By:
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
[Investor Counterpart Signature Pages Follow.]
INVESTOR COUNTERPART SIGNATURE PAGE
DVG DEUTSCHE
VERMOGENSBILDUNGSGESELLSCHAFT
By:
---------------------------------------
Name:
Title:
INVESTOR COUNTERPART SIGNATURE PAGE
CARDINAL HEALTH PARTNERS, L.P.
By: Cardinal Health Partners
Management LLC
Its General Partner
By:
---------------------------------------
Name:
Title:
INVESTOR COUNTERPART SIGNATURE PAGE
CLARION CAPITAL CORPORATION
By:
---------------------------------------
Name:
Title:
CLARION OFFSHORE FUND LTD
By:
---------------------------------------
Name:
Title:
CLARION PARTNERS, L.P.
By:
---------------------------------------
Name:
Title:
INVESTOR COUNTERPART SIGNATURE PAGE
MARCUARD XXXX & CIE S.A.
By:
---------------------------------------
Name:
Title:
INVESTOR COUNTERPART SIGNATURE PAGE
DEUTSCHE GESELLSCHAFT FUR WERTPAPIERSPAREN,
FRANKFURT
By:
---------------------------------------
Name:
Title:
INVESTOR COUNTERPART SIGNATURE PAGE
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By:
---------------------------------------
Name:
Title:
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INVESTOR COUNTERPART SIGNATURE PAGE
WHITNEY PARTNERS, LP
By:
---------------------------------------
Name:
Title:
INVESTOR COUNTERPART SIGNATURE PAGE
MERLIN BIOMED L.P.
By:
-------------------------------------
Name:
Title:
MERLIN BIOMED INTERNATIONAL, LTD
By:
------------------------------------
Name:
Title:
INVESTOR COUNTERPART SIGNATURE PAGE
X. XXXXXXX XXXX. XXXX & CO KGAA
(A.K.A. XXXXXXX INVESTMENTS)
By:
---------------------------------------
Name:
Title:
INVESTOR COUNTERPART SIGNATURE PAGE
NARRAGANSETT I, L.P.
By:____________________________________
Name:
Title:
NARRAGANSETT OFFSHORE, LTD
By:_____________________________________
Name
Title:
INVESTOR COUNTERPART SIGNATURE PAGE
XXXXXXX CAPITAL INVESTMENTS,
LTD
By: Xxxxxxx Capital Management LLC,
its Agent
By:_______________________________
Name:
Title:
RAM CAPITAL, LLC
By: Xxxxxxx Capital Management LLC,
its Managing Member
By:______________________________
Name:
Title:
INVESTOR COUNTERPART SIGNATURE PAGE
VERITAS SG INVESTMENT TRUST GMBH
By:_____________________________________
Name:
Title:
INVESTOR COUNTERPART SIGNATURE PAGE
BANKBOSTON, N.A., TRUSTEE U/I
X.X. XXXXXX, XX. RESIDUARY
TRUST
-------------------------------------
Name:
Title:
INVESTOR COUNTERPART SIGNATURE PAGE
-------------------------------
Xxxx Xxxxxxxxx
INVESTOR COUNTERPART SIGNATURE PAGE
----------------------------------
Xxxxxxx X. Xxxxxx
INVESTOR COUNTERPART SIGNATURE PAGE
----------------------------------
Xxxxxxx X. Xxxxxxxx
INVESTOR COUNTERPART SIGNATURE PAGE
----------------------------------
Xxxx X. Xxxxx-Xxxxx
EXHIBIT A
INVESTORS
Number of Shares Total
Purchaser To Be Purchased Purchase Price
--------- ---------------- --------------
DVG DEUTSCHE VERMOGENSBILDUNGSGESELLSCHAFT mbH 500,000 US$3,750,000
Xxxxxxxxxxxxxxx 00
00000 Xxxxxxxxx, Xxxxxxx
*Endrikat, Fund Manager, is the authorized signatory
for DVG
CARDINAL HEALTH PARTNERS, L.P. 533,333 US$3,999,997.50
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
*Cardinal Health Partners Management LLC, its
general partner, is the authorized
signatory for Cardinal Health Partners, L.P.
CLARION CAPITAL CORPORATION 25,000 US$187,500
Ohio Savings Plaza
Suite 1120
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
*Xxxxxx Xxxxx, its Chairman, is the authorized
signatory for Clarion Capital Corporation
CLARION OFFSHORE FUND LTD 6,750 US$50,625
Ohio Savings Plaza
Suite 1120
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
*Xxxxxx Xxxxx, Fund Manager, is the authorized
signatory for Clarion Offshore Fund LTD.
CLARION PARTNERS, L.P. 18,250 US$136,875
Ohio Savings Plaza
Suite 1120
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
*Xxxxxx Xxxxx, its general partner, is the authorized
signatory for Clarion Partners X.X.
XXXXXXXX XXXX & CIE S.A. 50,000 US$375,000
0, Xxx Xxx Xxxxx
Case Postale 1380
Geneva Switzerland 1211
*Xxxxxxx Xxxxx, Manager, and Xxxx Xxx Xxxxx,
Asst. Manager, are the authorized signatories
for Marcuard Xxxx & Cie S.A.
EXHIBIT A (CONT.)
Number of Shares Total
Purchaser To Be Purchased Purchase Price
--------- ---------------- --------------
DEUTSCHE GESELLSCHAFT FUR WERTPAPIERSPAREN, FRANKFURT 500,000 XXx0,000,000
x/x Xxxxxxxx Xxxx, Xxx Xxxx
Attn: Xxxx Xxxxxxx
1251 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
*Xxxxxxx Xxxxxxxxx, Senior Fund Manager,
and Klaus Kaldemorgen, Head of International
Equities, are the authorized signatories
for DWS Investments
FIDELITY NATIONAL TITLE INSURANCE COMPANY 25,000 US$187,500
0000 Xxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
*Xxxxxx X. Xxxxx, Vice President, Investments,
is the authorized signatory for Fidelity National
Title Insurance Company of New York
WHITNEY PARTNERS, LP 50,000 US$375,000
00 Xxxx Xxx Xxxxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxxx, XX 00000-0000
*Xxxxxxx X. Xxxxxxxxxx, its general partner,
is the authorized signatory for Whitney Partners LLP.
MERLIN BIOMED, L.P. 20,000 US$150,000
000 Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxx 00000
*Xxxxxx Xxxxxxxx, Chief Investment Officer,
is the authorized signatory for Merlin Biomed.
MERLIN BIOMED INTERNATIONAL, LTD 10,000 US$75,000
000 Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxx 00000
*Xxxxxx Xxxxxxxx, Chief Investment Officer,
is the authorized signatory for Merlin Biomed
International, LTD
X. Xxxxxxx xxxx. Xxxx & Co KgaA 300,000 US$2,250,000
(a.k.a XXXXXXX INVESTMENTS)
x/x Xxxxx Xxxxxxxx Xxxxxxxx & Xx.
Xxxx: Xxxxx Firnen/Trade Processing
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
*Xxxxx Xxxxxxxx, Direktor, is the authorized
signatory for X. Xxxxxxx xxxx. Xxxx & Co KGaA.
EXHIBIT A (CONT.)
Number of Shares Total
Purchaser To Be Purchased Purchase Price
--------- ---------------- --------------
NARRAGANSETT I, L.P. 58,500 US$438,750
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
*Xxxxxx X. Xxxxxxx III, Managing Member,
is the authorized signatory for Narragansett I, LP
NARRAGANSETT OFFSHORE, LTD 16,500 US$123,750
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
*Xxxxxx X. Xxxxxxx III, Managing Member of
Xxx Holdings LLC, Investment Manager for Narragansett
Offshore, Ltd., is the authorized signatory for
Narragansett Offshore, Ltd.
XXXXXXX CAPITAL INVESTMENTS, LTD 100,000 US$750,000
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
*Xxxxxxx Capital Management LLC, its Agent,
is the authorized signatory for
Xxxxxxx Capital Investments, LTD
RAM CAPITAL, LLC 100,000 US$750,000
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
*Xxxxxxx Capital Management LLC, its Managing Member,
is the authorized signatory for RAM Capital, LLC
VERITAS SG INVESTMENT TRUST GMBH 100,000 US$750,000
Xxxxxxxxxxxxxx, 00
Xxxxxxxxx, Xxxxxxx 60325
*Von Ziegesar, CFO/CEO, is the authorized
signatory for Veritas SG Investment Trust GMBH
BANKBOSTON, N.A., TRUSTEE U/I. 5,000 US$37,500
X.X. XXXXXX, XX RESIDUARY TRUST
c/o BankBoston
Mail Stop: T - 0405
0 XxxxXxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
*Xxxxx X Xxxxxxxx, First Vice President,
is the authorized signatory for BankBoston, N.A.,
Trustee U/I X.X. Xxxxxx, Xx. Residuary Trust
XXXX XXXXXXXXX 25,000 US$187,500
c/o Galleon Capital
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
EXHIBIT A (CONT.)
Number of Shares Total
Purchaser To Be Purchased Purchase Price
--------- ---------------- --------------
XXXXXXX X. XXXXXX 20,000 US$150,000
0 Xxxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
XXXXXXX X. XXXXXXXX 20,000 US$150,000
0 Xxxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
XXXX XXXXX-XXXXX 20,000 US$150,000
Xxxxxxxxx 0
0000 Xxxxxx, Xxxxxxx
---------------- --------------
Total: 2,503,333 18,774,997.50
EXHIBIT B
CUBIST PHARMACEUTICALS, INC.
INSTRUMENT OF ADHERENCE
Reference is hereby made to that certain Registration Rights Agreement,
dated as of ______________ ___, 1999, among Cubist Pharmaceuticals, Inc., a
Delaware corporation (the "COMPANY"), the Initial Investors and the Investor
Permitted Transferees, as amended and in effect from time to time (the
"REGISTRATION RIGHTS AGREEMENT"). Capitalized terms used herein without
definition shall have the respective meanings ascribed thereto in the
Registration Rights Agreement.
The undersigned, in order to become the owner or holder of [___________
shares of common stock, par value $0.001 per share (the "COMMON STOCK"), of the
Company], hereby agrees that, from and after the date hereof, the undersigned
has become a party to the Registration Rights Agreement in the capacity of an
Investor Permitted Transferee, and is entitled to all of the benefits under, and
is subject to all of the obligations, restrictions and limitations set forth in,
the Registration Rights Agreement that are applicable to Investor Permitted
Transferees. This Instrument of Adherence shall take effect and shall become a
part of the Registration Rights Agreement immediately upon execution.
Executed under seal as of the date set forth below under the laws of
the Commonwealth of Massachusetts.
Signature:
-------------------------------
Name:
Title:
Accepted:
CUBIST PHARMACEUTICALS, INC.
By:
---------------------------------
Name:
Title:
Date:
-------------------------------
