Exhibit 10.1
CUBIST PHARMACEUTICALS, INC.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of
January 27, 2000 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,
2,200,000 shares (the "PURCHASED SHARES") of the Company's common stock, $.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.
"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 7 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).
(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,
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without limitation, the 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 Sections 3 and 4 hereof to file the Registration Statement
with the SEC and to use reasonable 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
(d) 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.
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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 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 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
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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 in 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.
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
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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.
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 Fax 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
Fax: (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.
Fax: (000) 000-0000
(iii) All correspondence to any Investor shall be sent to such
Purchaser at the address set forth in EXHIBIT A.
(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.
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(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.]
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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: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
[Investor Counterpart Signature Pages Follow.]
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INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
DVG DEUTSCHE
VERMOGENSBILDUNGSGESELLSCHAFT
Print Name of Investor
/s/ Xxxxxxxx Horn
-----------------------------------
Signature or Authorized Person
Print Name: Xxxxxxxx Xxxx
-----------------------
Print Title:
-----------------------
Address:
Xxxxxxx Xxxxxxxxxxx 00
-------------------------
00000 Xxxxxxxxx, Xxxxxxx
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INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
DEUTSCHE ASSET
MANAGEMENTINVESTMENTGESELLSCHAFT MBH
ON BEHALF OF DIRFONDS, AP
Print Name of Investor
/s/ Xxxxxxxx Xxxx
-----------------------------------
Signature or Authorized Person
Print Name: Xxxxxxxx Horn
-----------------------
Print Title:
-----------------------
Address:
Xxxxxxx Xxxxxxxxxxx 00
-------------------------
00000 Xxxxxxxxx, Xxxxxxx
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INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
DEUTSCHE ASSET MANAGEMENT
INVESTMENTGESELLSCHAFT MBH
ON BEHALF OF NAVAP
Print Name of Investor
/s/ Xxxxxxxx Xxxx
-----------------------------------
Signature or Authorized Person
Print Name: Xxxxxxxx Horn
-----------------------
Print Title:
-----------------------
Address:
Xxxxxxx Xxxxxxxxxxx 00
-------------------------
00000 Xxxxxxxxx, Xxxxxxx
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INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
XXXXXXX CAPITAL
Print Name of Investor
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Signature or Authorized Person
Print Name: Xxxxxx Xxxxxxx
--------------------------
Print Title: President
--------------------------
Address:
1370 Avenue of the Americas
----------------------------
Suite 2603
----------------------------
Xxx Xxxx, XX 00000
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INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
CROSSLINK CROSSOVER FUND III, L.P.
Print Name of Investor
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Signature or Authorized Person
Print Name: Xxxxxxx X. Xxxxx
-----------------------
Print Title: Managing Director
-----------------------
Address:
000 Xxxxxxxxxx Xxxxxx
-------------------------
Xxx Xxxxxxxxx, XX 00000
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INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
DELAWARE MANAGEMENT COMPANY,
INVESTMENT ADVISER ON BEHALF OF PACE
SMALL/MEDIUM COMPANY GROWTH EQUITY
INVESTMENTS
Print Name of Investor
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Signature or Authorized Person
Print Name: Xxxxxx X. Xxxxxx
-----------------------
Print Title: Vice President
-----------------------
Address:
0000 Xxxxxx Xxxxxx
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Xxxxxxxxxxxx, XX 00000
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INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
DELAWARE GROUP EQUITY FUNDS III, ON
BEHALF OF ITS DELAWARE TREND FUND
Print Name of Investor
/s/ Xxxxxx X. Xxxx
-----------------------------------
Signature or Authorized Person
Print Name: Xxxxxx X. Xxxx
-----------------------
Print Title: Senior Vice President
-----------------------
Address:
0000 Xxxxxx Xxxxxx
-------------------------
Xxxxxxxxxxxx, XX 00000
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INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
DELAWARE POOLED TRUST, ON BEHALF
OF ITS THE SMALL-CAP GROWTH EQUITY
PORTFOLIO
Print Name of Investor
/s/ Xxxxxx X. Xxxx
-----------------------------------
Signature or Authorized Person
Print Name: Xxxxxx X. Xxxx
-----------------------
Print Title: Senior Vice President
-----------------------
Address:
0000 Xxxxxx Xxxxxx
-------------------------
Xxxxxxxxxxxx, XX 00000
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INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
DELAWARE GROUP PREMIUM FUND,
ON BEHALF OF ITS TREND SERIES
Print Name of Investor
/s/ Xxxxxx X. Xxxx
-----------------------------------
Signature or Authorized Person
Print Name: Xxxxxx X. Xxxx
-----------------------
Print Title: Senior Vice President
-----------------------
Address:
0000 Xxxxxx Xxxxxx
-------------------------
Xxxxxxxxxxxx, XX 00000
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INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
DEUTSCHE GESELLSCHAFT FUR
WERTPAPIERSPAREN, FRANKFURT
Print Name of Investor
/s/ Xxxxxxx Xxxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxxxx Xxxxxxxxx
------------------------------
Print Title: Senior Fund Manager
------------------------------
Address:
Gruneburgweg 113-115
--------------------------------
00000 Xxxxxxxxx Xx Xxxx, Xxxxxxx
--------------------------------
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
FRANKLIN AGGRESSIVE GROWTH FUND #462
Print Name of Investor
/s/ Xxxx Xxx Xxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxx Xxx Xxxxxx
------------------------------
Print Title: VP, Franklin Advisers
------------------------------
Address:
000 Xxxxxxxx Xxxxxx Xxxx.
--------------------------------
Xxx Xxxxx, XX 00000
--------------------------------
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
FRANKLIN BIOTECH DISCOVERY FUND #402
Print Name of Investor
/s/ Xxxx Xxx Xxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxx Xxx Xxxxxx
------------------------------
Print Title: VP, Franklin Advisers
------------------------------
Address:
000 Xxxxxxxx Xxxxxx Xxxx.
--------------------------------
Xxx Xxxxx, XX 00000
--------------------------------
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
FRANKLIN GLOBAL HEALTHCARE FUND #199
Print Name of Investor
/s/ Xxxx Xxx Xxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxx Xxx Xxxxxx
------------------------------
Print Title: VP, Franklin Advisers
------------------------------
Address:
000 Xxxxxxxx Xxxxxx Xxxx.
--------------------------------
Xxx Xxxxx, XX 00000
--------------------------------
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
RS PACIFIC PARTNERS
Print Name of Investor
/s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxx X. Xxxxxxxx
------------------------------
Print Title: Chief Investment Officer
------------------------------
Address:
RS Investment Management
--------------------------------
000 Xxxxxx Xxxxxx, Xxxxx 000
--------------------------------
Xxx Xxxxxxxxx, XX 00000
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
RS PACIFIC PARTNERS LP ONSHORE
Print Name of Investor
/s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxx X. Xxxxxxxx
------------------------------
Print Title: Chief Investment Officer
------------------------------
Address:
RS Investment Management
--------------------------------
000 Xxxxxx Xxxxxx, Xxxxx 000
--------------------------------
Xxx Xxxxxxxxx, XX 00000
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
RS EMERGING GROWTH PARTNERS LP
Print Name of Investor
/s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxx X. Xxxxxxxx
------------------------------
Print Title: Chief Investment Officer
------------------------------
Address:
RS Investment Management
--------------------------------
000 Xxxxxx Xxxxxx, Xxxxx 000
--------------------------------
Xxx Xxxxxxxxx, XX 00000
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
RS PREMIUM PARTNERS LP
Print Name of Investor
/s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxx X. Xxxxxxxx
------------------------------
Print Title: Chief Investment Officer
------------------------------
Address:
RS Investment Management
--------------------------------
000 Xxxxxx Xxxxxx, Xxxxx 000
--------------------------------
Xxx Xxxxxxxxx, XX 00000
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
PAISLEY FUND LP
Print Name of Investor
/s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxx X. Xxxxxxxx
------------------------------
Print Title: Chief Investment Officer
------------------------------
Address:
RS Investment Management
--------------------------------
000 Xxxxxx Xxxxxx, Xxxxx 000
--------------------------------
Xxx Xxxxxxxxx, XX 00000
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
PAISLEY FUND LP
Print Name of Investor
/s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxx X. Xxxxxxxx
------------------------------
Print Title: Chief Investment Officer
------------------------------
Address:
RS Investment Management
--------------------------------
000 Xxxxxx Xxxxxx, Xxxxx 000
--------------------------------
Xxx Xxxxxxxxx, XX 00000
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
ENDEAVOR FUND, LLC
Print Name of Investor
/s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Print Title: Vice President
------------------------------
Address:
100 Heritage Reserve
--------------------------------
Xxxxxxxxx Xxxxx, XX 00000
--------------------------------
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
STONG SPECIAL INVESTMENT, L.P.
Print Name of Investor
/s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Print Title: Vice President
------------------------------
Address:
100 Heritage Reserve
--------------------------------
Xxxxxxxxx Xxxxx, XX 00000
--------------------------------
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
ENDEAVOR OFFSHORE FUND LTD
Print Name of Investor
/s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Print Title: Vice President
------------------------------
Address:
100 Heritage Reserve
--------------------------------
Xxxxxxxxx Xxxxx, XX 00000
--------------------------------
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
STRONG DISCOVERY FUND II, A SERIES
OF STRONG VARIABLE INSURANCE
FUNDS, INC.
Print Name of Investor
/s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Print Title: Vice President
------------------------------
Address:
100 Heritage Reserve
--------------------------------
Xxxxxxxxx Xxxxx, XX 00000
--------------------------------
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
STRONG DISCOVERY FUND, INC.
Print Name of Investor
/s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Print Title: Vice President
------------------------------
Address:
100 Heritage Reserve
--------------------------------
Xxxxxxxxx Xxxxx, XX 00000
--------------------------------
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
HARBOUR HOLDING LTD.
Print Name of Investor
/s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxxxx X. Xxxxxxxxxxx
------------------------------
Print Title: Vice President
------------------------------
Address:
100 Heritage Reserve
--------------------------------
Xxxxxxxxx Xxxxx, XX 00000
--------------------------------
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
ACTIVEST MANAGEMENT SA
Print Name of Investor
/s/ Xxxxx Xxxxxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxx Xxxxxxxxxxx
------------------------------
Print Title: Director
------------------------------
Address:
00 Xxx Xxxxx
--------------------------------
0000 Xxxxxx, Xxxxxxxxxxx
--------------------------------
--------------------------------
--------------------------------
INVESTOR COUNTERPART SIGNATURE PAGE
INVESTOR:
ACTIVEST AMERICAN PERFORMANCE LIMITED
Print Name of Investor
/s/ Xxxxx Xxxxxxxxxxx
------------------------------------------
Signature or Authorized Person
Print Name: Xxxxx Xxxxxxxxxxx
------------------------------
Print Title: Director
------------------------------
Address:
00 Xxx Xxxxx
--------------------------------
0000 Xxxxxx, Xxxxxxxxxxx
--------------------------------
--------------------------------
--------------------------------
EXHIBIT A
INVESTORS
Number of
Shares Total
Purchaser to be Purchased Purchase Price
--------- --------------- --------------
DVG DEUTSCHE 200,000 US$5,000,000
VERMOGENSBILDUNGSGESELLSCHAFT
DEUTSCHE ASSET MANAGEMENT 100,000 US$2,500,000
INVESTMENTGESELLSCHAFT MBH
On behalf of DIRFONDS, AP
DEUTSCHE ASSET MANAGEMENT 200,000 US$5,000,000
INVESTMENTGESELLSCHAFT MBH
On behalf of NAVAP
XXXXXXX CAPITAL 300,000 US$7,500,000
CROSSLINK CROSSOVER FUND III, L.P. 100,000 US$2,500,000
DELAWARE MANAGEMENT COMPANY 31,700 US$792,500
On behalf of PACE SMALL/MEDIUM COMPANY
GROWTH EQUITY INVESTMENTS
DELAWARE GROUP EQUITY FUNDS III 110,200 US$2,755,000
On behalf of DELAWARE TREND FUND
DELAWARE POOLED TRUST 800 US$20,000
On behalf of THE SMALL-CAP GROWTH EQUITY
PORTFOLIO
DELAWARE GROUP PREMIUM FUND 57,300 US$1,432,500
On behalf of TREND SERIES
DEUTSCHE GESELLSCHAFT FUR 200,000 XXx0,000,000
XXXXXXXXXXXXXXXX, XXXXXXXXX
XXXXXXXX AGGRESSIVE GROWTH FUND #462 75,000 US$1,875,000
FRANKLIN BIOTECH DISCOVERY FUND #402 250,000 US$6,250,000
FRANKLIN GLOBAL HEALTH CARE FUND #199 50,000 US$1,250,000
Number of
Shares Total
Purchaser to be Purchased Purchase Price
--------- --------------- --------------
RS PACIFIC PARTNERS 57,253 US$1,431,325
RS PACIFIC PARTNERS LP ONSHORE 276 US$6,900
RS EMERGING GROWTH PARTNERS LP 27,651 US$691,275
RS PREMIUM PARTNERS LP 34,820 US$870,500
PAISLEY PACIFIC FUND 60,000 US$1,500,000
THE PAISLEY FUND LP 20,000 US$500,000
ENDEAVOR FUND LLC 57,200 US$1,430,000
STRONG SPECIAL INVESTMENT LP 34,800 US$870,000
ENDEAVOR OFFSHORE FUND LTD 8,700 US$217,500
STRONG DISCOVERY FUND II, a Series of 44,100 US$1,102,500
Strong Variable Insurance Funds, Inc.
STRONG DISCOVERY FUND, INC. 54,000 US$1,350,000
HARBOUR HOLDING LTD 26,200 US$655,000
ACTIVEST MANAGEMENT SA 70,000 US$1,750,000
ACTIVEST AMERICAN PERFORMANCE LIMITED 30,000 US$750,000
-------------- ----------------
Total: 2,200,000 US$55,000,000
EXHIBIT B
CUBIST PHARMACEUTICALS, INC.
INSTRUMENT OF ADHERENCE
Reference is hereby made to that certain Registration Rights Agreement, dated as
of ______________ ___, 2000, 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: ___________________
