Optimer Pharmaceuticals Inc – NINTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF OPTIMER PHARMACEUTICALS, INC. (October 24th, 2013)
Optimer Pharmaceuticals Inc – SECOND AMENDED AND RESTATED BY-LAWS OF OPTIMER PHARMACEUTICALS, INC. (October 24th, 2013)
Optimer Pharmaceuticals Inc – SERIES A CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT by and between OPTIMER PHARMACEUTICALS, INC. and CUBIST PHARMACEUTICALS, INC. (September 16th, 2013)This SERIES A CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT, dated as of September 16, 2013 (this “Agreement”), is by and between OPTIMER PHARMACEUTICALS, INC., a Delaware corporation (“Optimer”), and CUBIST PHARMACEUTICALS, INC., a Delaware corporation (“Purchaser”).
Optimer Pharmaceuticals Inc – CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS OF SERIES A CONVERTIBLE PREFERRED STOCK, $0.001 PAR VALUE, OF OPTIMER PHARMACEUTICALS, INC. (September 16th, 2013)Pursuant to the authority conferred upon the Board of Directors of the Company (the “Board”) by the Company’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”), on July 30, 2013, the Board duly adopted resolutions (i) creating, authorizing and designating seven hundred fifty thousand (750,000) shares of preferred stock, par value $0.001 per share, of the Company, as Series A Convertible Preferred Stock (the “Series A Convertible Preferred Stock”), none of which is outstanding as of the date hereof, to have the powers, preferences, rights, qualifications, limitations and restrictions set forth in Exhibit C to the Agreement and Plan of Merger, dated as of July 30, 2013 (the “Merger Agreement”), by and among the Company, Cubist Pharmaceuticals, Inc. (“Cubist”) and PDRS Corporation, and the Certificate of Incorporation and (ii) approving the establishment of a committee of the Board (the “Interim Financing Committee”) authorized to issue shares of Serie
Optimer Pharmaceuticals Inc – SUPPLEMENTAL QUESTIONS AND ANSWERS FOR EMPLOYEES (August 22nd, 2013)This Supplemental Q&A addresses some common questions that have been raised following the announcement of the Merger with Cubist (the “Merger”). It is intended to supplement, not replace, the first set of questions and answers (numbered 1 through 35) circulated to Optimer employees on July 30, 2013. It is meant to be a helpful guide only; Optimer’s benefits plan documents contain definitive information on your benefits and, in the case of any discrepancy between the plan documents and this Supplemental Q&A, the plan documents will control. Plan documents, including Optimer’s Amended and Restated Severance Benefit Plan (the “Severance Plan”), are available on Sharepoint. Information in this Q&A regarding COBRA and Optimer’s 401(k) plan is only applicable to U.S. employees.
Optimer Pharmaceuticals Inc – May 9, 2013 Eric Sirota Chatham, NJ 07928 Dear Eric: (August 7th, 2013)It is with great pleasure that I offer you the position of Chief Operating Officer with Optimer Pharmaceuticals, Inc. (“Optimer” or the “Company”), performing such duties as are normally associated with this position and such duties as are assigned to you from time to time. You will report to Hank McKinnell, Optimer’s CEO. We at Optimer have greatly benefited from your expertise as a consultant to the Company and are very excited about your now becoming a key member of our executive team. We look forward to the prospect of working with you in your new capacity.
Optimer Pharmaceuticals Inc – Henry A. McKinnell, Ph.D. PO Box 524 Jackson, WY 83001 Dear Hank: (August 7th, 2013)I am pleased to confirm the terms of your position as Chief Executive Officer of Optimer Pharmaceuticals, Inc. (the “Company”).
Optimer Pharmaceuticals Inc – AMENDMENT # 4 TO API MANUFACTURING AND SUPPLY AGREEMENT (August 7th, 2013)This Amendment # 4 to API Manufacturing and Supply Agreement (this “Amendment # 4”), is entered into as of April 29, 2013 by and between Optimer Pharmaceuticals, Inc. (“Optimer”) and Biocon Limited (“Biocon”).
Optimer Pharmaceuticals Inc – CONTINGENT VALUE RIGHTS AGREEMENT by and between Cubist Pharmaceuticals, Inc. and [TRUSTEE] Dated as of [·], 2013 (August 1st, 2013)THIS CONTINGENT VALUE RIGHTS AGREEMENT, dated as of [·], 2013 (this “Agreement”), by and between Cubist Pharmaceuticals, Inc., a Delaware corporation (“Parent”), and [·], a [·], as trustee (the “Trustee”), in favor of each person who from time to time holds one or more Contingent Value Rights (the “Securities” or “CVRs”) to receive cash payments in the amounts and subject to the terms and conditions set forth herein.
Optimer Pharmaceuticals Inc – AMENDMENT NO. 1 TO CO-PROMOTION AGREEMENT (August 1st, 2013)This AMENDMENT NO. 1 TO CO-PROMOTION AGREEMENT (the “Amendment”) is entered into on July 30, 2013 (the “Amendment Effective Date”), by and among Cubist Pharmaceuticals, Inc. (“Cubist”) and Optimer Pharmaceuticals, Inc. (“Optimer”). Cubist and Optimer may each be referred to herein individually as a “Party” and collectively as the “Parties.” Capitalized terms used but not defined in this Amendment have the meaning set forth in the Agreement.
Optimer Pharmaceuticals Inc – AMENDMENT NO. 1 TO CO-PROMOTION AGREEMENT (August 1st, 2013)This AMENDMENT NO. 1 TO CO-PROMOTION AGREEMENT (the “Amendment”) is entered into on July 30, 2013 (the “Amendment Effective Date”), by and among Cubist Pharmaceuticals, Inc. (“Cubist”) and Optimer Pharmaceuticals, Inc. (“Optimer”). Cubist and Optimer may each be referred to herein individually as a “Party” and collectively as the “Parties.” Capitalized terms used but not defined in this Amendment have the meaning set forth in the Agreement.
Optimer Pharmaceuticals Inc – CONTINGENT VALUE RIGHTS AGREEMENT by and between Cubist Pharmaceuticals, Inc. and [TRUSTEE] Dated as of [·], 2013 (August 1st, 2013)THIS CONTINGENT VALUE RIGHTS AGREEMENT, dated as of [·], 2013 (this “Agreement”), by and between Cubist Pharmaceuticals, Inc., a Delaware corporation (“Parent”), and [·], a [·], as trustee (the “Trustee”), in favor of each person who from time to time holds one or more Contingent Value Rights (the “Securities” or “CVRs”) to receive cash payments in the amounts and subject to the terms and conditions set forth herein.
Optimer Pharmaceuticals Inc – AGREEMENT AND PLAN OF MERGER among OPTIMER PHARMACEUTICALS, INC., CUBIST PHARMACEUTICALS, INC. and PDRS CORPORATION Dated as of July 30, 2013 (August 1st, 2013)This AGREEMENT AND PLAN OF MERGER (hereinafter called this “Agreement”), dated as of July 30, 2013, is by and among Optimer Pharmaceuticals, Inc., a Delaware corporation (the “Company”), Cubist Pharmaceuticals, Inc., a Delaware corporation (“Parent”), and PDRS Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”).
Optimer Pharmaceuticals Inc – Dear Optimer colleagues: (July 30th, 2013)Over the last few months, our Board of Directors has conducted a review of strategic alternatives available to the Company. The Board carefully evaluated several alternatives, including the option to continue as an independent Company. The Board decided that the best way to maximize value for stockholders was to enter into an agreement with Cubist Pharmaceuticals, Inc. to sell the Company for per share consideration of $10.75 payable in cash at the closing plus one publicly listed, transferable contingent value right, entitling the holder to receive an additional one-time cash payment of up to $5.00 (described in more detail below) per right if certain targets of net sales of DIFICID® in the U.S. and Canada from July 1, 2013 to December 31, 2015 are achieved. It is important for you to know that this decision took a great deal of thought and consideration. The Board has determined that this transaction provides the best opportunity to optimize value for our stockholders by delivering a
Optimer Pharmaceuticals Inc – Dear Optimer colleagues: (July 30th, 2013)Over the last few months, our Board of Directors has conducted a review of strategic alternatives available to the Company. The Board carefully evaluated several alternatives, including the option to continue as an independent Company. The Board decided that the best way to maximize value for stockholders was to enter into an agreement with Cubist Pharmaceuticals, Inc. to sell the Company for per share consideration of $10.75 payable in cash at the closing plus one publicly listed, transferable contingent value right, entitling the holder to receive an additional one-time cash payment of up to $5.00 (described in more detail below) per right if certain targets of net sales of DIFICID® in the U.S. and Canada from July 1, 2013 to December 31, 2015 are achieved. It is important for you to know that this decision took a great deal of thought and consideration. The Board has determined that this transaction provides the best opportunity to optimize value for our stockholders by delivering a
Optimer Pharmaceuticals Inc – OPTIMER PHARMACEUTICALS, INC. AMENDED AND RESTATED SEVERANCE BENEFIT PLAN (May 10th, 2013)
Optimer Pharmaceuticals Inc – March 4, 2013 Pedro Lichtinger 7211 Eads Ave La Jolla, CA 92037 Re: Separation from Optimer Pharmaceuticals, Inc. Dear Mr. Lichtinger: (May 10th, 2013)This letter sets forth the terms and conditions of the separation agreement (the “Agreement”) that OPTIMER PHARMACEUTICALS, INC. (the “Company”) is offering to aid in your employment transition. This Agreement shall be effective as of the Effective Date as defined in Section 14(d) herein. As part of this Agreement, and pursuant to and subject to the terms of the Company’s Amended and Restated Severance Benefit Plan (the “Severance Plan”), and the letter agreement between you and the Company dated as of May 5, 2010 (the “Employment Agreement”), the Company will provide you certain separation benefits outlined below. All initially capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in the Severance Plan.
Optimer Pharmaceuticals Inc – December 11, 2012 Ringwood, NJ 07456 Re: Separation Agreement from Optimer Pharmaceuticals, Inc. Dear Greg: (March 18th, 2013)This letter sets forth the terms and conditions of the separation agreement (the “Agreement”) that OPTIMER PHARMACEUTICALS, INC. (the “Company”) is offering to aid in your employment transition. This Agreement shall be effective as of the Effective Date of this Agreement as defined in Section 12(d) herein. As part of this Agreement, and pursuant to and subject to the terms of the Company’s Amended and Restated Severance Benefit Plan (the “Severance Plan”), the Company is offering you certain severance benefits outlined below. All initially capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in the Severance Plan.
Optimer Pharmaceuticals Inc – SUPPLEMENTAL AGREEMENT REGARDING INTELLECTUAL PROPERTY ASSIGNMENT AND LICENSE AGREEMENT (March 18th, 2013)This Supplemental Agreement Regarding Intellectual Property Assignment and License Agreement (the “Supplement”) is made and effective as of October 19, 2012 (the “Effective Date”) by and between Optimer Pharmaceuticals, Inc., a Delaware corporation (“Optimer”), and Optimer Biotechnology, Inc., a Taiwan corporation (“OBI”) to supplement, restate and/or amend, as applicable, that certain Intellectual Property Assignment and License Agreement dated October 30, 2009 between Optimer and OBI (the “Intellectual Property Agreement”). Except as otherwise expressly provided herein, capitalized terms used but not defined herein shall have their respective meanings set forth in the Intellectual Property Agreement.
Optimer Pharmaceuticals Inc – STOCK PURCHASE AGREEMENT by and among HUEI HONG INVESTMENT CO., LTD. CHANG CHUEN INVESTMENT CO., LTD. YI TAI INVESTMENT CO., LTD. YUAN HONG INVESTMENT CO., LTD. and OPTIMER PHARMACEUTICALS, INC. Dated as of October 5, 2012 (March 18th, 2013)This STOCK PURCHASE AGREEMENT, dated as of October 5, 2012 (this “Agreement”), is made by and among certain buyers as set forth in Schedule 1 (each, a “Buyer” and collectively, the “Buyers” and Optimer Pharmaceuticals, Inc. (the “Seller”).
Optimer Pharmaceuticals Inc – March 1, 2013 Kurt Hartman (March 18th, 2013)
Optimer Pharmaceuticals Inc – STOCKHOLDER PROTECTION RIGHTS AGREEMENT dated as of February 26, 2013 between OPTIMER PHARMACEUTICALS, INC. and AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC, as Rights Agent (February 27th, 2013)STOCKHOLDER PROTECTION RIGHTS AGREEMENT (as amended from time to time, this “Agreement”), dated as of February 26, 2013, between Optimer Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and American Stock Transfer & Trust Company, LLC, a New York limited liability trust company, as Rights Agent (the “Rights Agent”, which term shall include any successor Rights Agent hereunder).
Optimer Pharmaceuticals Inc – OPTIMER PHARMACEUTICALS, INC. 2012 EQUITY INCENTIVE PLAN ADOPTED BY THE BOARD OF DIRECTORS: FEBRUARY 29, 2012 AMENDED BY THE BOARD OF DIRECTORS: MARCH 27, 2012 APPROVED BY THE STOCKHOLDERS: MAY 9, 2012 AMENDED BY THE BOARD OF DIRECTORS: NOVEMBER 2, 2012 (November 7th, 2012)
Optimer Pharmaceuticals Inc – Dear Pedro Collaboration and License Agreement between Optimer Pharmaceuticals Inc and Astellas Pharma Europe Limited dated 2 February 2011 (the “Collaboration Agreement”) Amendment No 1 (November 2nd, 2012)In accordance with Section 14.7 of the Collaboration Agreement we have agreed to amend the Collaboration Agreement as follows:
Optimer Pharmaceuticals Inc – THIRD AMENDMENT TO API MANUFACTURING AND SUPPLY AGREEMENT (November 2nd, 2012)This Third Amendment (this “Third Amendment”) dated as of the 10th day of September, 2012 (the “Third Amendment Date”), is made by and between Biocon Limited (“Biocon”) and Optimer Pharmaceuticals, Inc. (“Optimer”).
Optimer Pharmaceuticals Inc – AMENDMENT TO API MANUFACTURING AND SUPPLY AGREEMENT (August 3rd, 2012)This AMENDMENT TO MANUFACTURING AND SUPPLY AGREEMENT (this “Amendment”), is entered into as of May 20, 2011 by and between OPTIMER PHARMACEUTICALS, INC. (“Optimer”) and BIOCON LIMITED (“Biocon”). Capitalized terms used herein which are not defined herein shall have the definitions ascribed to them in the Agreement (defined below).
Optimer Pharmaceuticals Inc – April 6, 2012 John Prunty c/o Optimer Pharmaceuticals, Inc. 5355 Mira Sorrento Place San Diego, CA 92121 Re: Separation from Optimer Pharmaceuticals, Inc. Dear John: (August 3rd, 2012)This letter sets forth the terms and conditions of our agreement (the “Agreement”) regarding the termination of your employment with OPTIMER PHARMACEUTICALS, INC. (the “Company”). This Agreement shall be effective as of the Effective Date as defined in Section 12(d) herein. As part of this Agreement, and pursuant to and subject to the terms of the Company’s Amended and Restated Severance Benefit Plan (the “Severance Plan”), the Company will provide you the Regular Covered Termination Severance Benefits outlined below (the “Severance Benefits”). All initially capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in the Severance Plan.
Optimer Pharmaceuticals Inc – OPTIMER PHARMACEUTICALS, INC. RESTRICTED STOCK UNIT GRANT NOTICE (2012 EQUITY INCENTIVE PLAN) (August 3rd, 2012)Optimer Pharmaceuticals, Inc. (the “Company”) hereby awards to Participant the number of restricted stock units specified and on the terms set forth below (the “Award”). The Award is subject to all of the terms and conditions as set forth herein and in the Company’s 2012 Equity Incentive Plan (the “Plan”) and the Restricted Stock Unit Agreement (the “Agreement”), both of which are attached hereto and incorporated herein in their entirety. Capitalized terms not explicitly defined herein but defined in the Plan or the Agreement shall have the meanings set forth in the Plan or the Agreement. Except as explicitly provided herein or in the Agreement, in the event of any conflict between the terms in the Award and the Plan, the terms of the Plan shall control.
Optimer Pharmaceuticals Inc – OPTIMER PHARMACEUTICALS, INC. STOCK OPTION GRANT NOTICE (2012 EQUITY INCENTIVE PLAN) (August 3rd, 2012)Optimer Pharmaceuticals, Inc. (the “Company”), pursuant to its 2012 Equity Incentive Plan (the “Plan”), hereby grants to Optionholder an option to purchase the number of shares of the Company’s Common Stock set forth below. This option is subject to all of the terms and conditions as set forth in this notice, in the Option Agreement, the Plan and the Notice of Exercise, all of which are attached hereto and incorporated herein in their entirety. Capitalized terms not explicitly defined herein but defined in the Plan or the Option Agreement will have the same definitions as in the Plan or the Option Agreement. If there is any conflict between the terms in this notice and the Plan, the terms of the Plan will control.
Optimer Pharmaceuticals Inc – OPTIMER PHARMACEUTICALS, INC. RESTRICTED STOCK UNIT GRANT NOTICE (2012 EQUITY INCENTIVE PLAN) (August 3rd, 2012)Optimer Pharmaceuticals, Inc. (the “Company”) hereby awards to Participant the number of restricted stock units specified and on the terms set forth below (the “Award”). The Award is subject to all of the terms and conditions as set forth herein and in the Company’s 2012 Equity Incentive Plan (the “Plan”) and the Restricted Stock Unit Agreement (the “Agreement”), both of which are attached hereto and incorporated herein in their entirety. Capitalized terms not explicitly defined herein but defined in the Plan or the Agre
Optimer Pharmaceuticals Inc – May 30, 2012 Stephen Webster Dear Steve, (June 5th, 2012)It is with great pleasure that I offer you the position of Chief Financial Officer with Optimer Pharmaceuticals, Inc., (“Optimer” or the “Company”) performing such duties as are normally associated with this position and such duties as are assigned to you from time to time. You will report to Pedro Lichtinger, Chief Executive Officer. We at Optimer are very excited about the possibility of you joining our team and we look forward to the prospect of working with you.
Optimer Pharmaceuticals Inc – OPTIMER PHARMACEUTICALS, INC. 2012 EQUITY INCENTIVE PLAN ADOPTED BY THE BOARD OF DIRECTORS: FEBRUARY 29, 2012 AMENDED BY THE BOARD OF DIRECTORS: MARCH 27, 2012 APPROVED BY THE STOCKHOLDERS: MAY 9, 2012 (May 10th, 2012)
Optimer Pharmaceuticals Inc – CERTIFICATE OF AMENDMENT OF THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF OPTIMER PHARMACEUTICALS, INC. (May 10th, 2012)OPTIMER PHARMACEUTICALS, INC., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies as follows:
Optimer Pharmaceuticals Inc – COLLABORATION AND LICENSE AGREEMENT (May 10th, 2012)This COLLABORATION AND LICENSE AGREEMENT (“Agreement”) is entered into on March 29, 2012 (the “Effective Date”) between OPTIMER PHARMACEUTICALS, INC., a company organized under the laws of the State of Delaware (“Optimer”), having a principal place of business at 10110 Sorrento Valley Rd., Suite C, San Diego, California 92121, and Astellas Pharma Inc., a company organized under the laws of Japan (“Partner”), having a principal place of business at 2-3-11 Nihonbashi-Honcho, Chuo-ku, Tokyo, 103-8411, Japan.
Optimer Pharmaceuticals Inc – SUPPLY AGREEMENT (May 10th, 2012)THIS SUPPLY AGREEMENT (the “Agreement”) is entered into on March 29, 2012 (the “Effective Date”) between Optimer Luxembourg 2 S.à r.l., a company organized under the laws of Luxembourg (“Optimer”), having a principal place of business at 6C, rue Gabriel Lippmann, L-5365 Munsbach, Luxembourg, and Astellas Pharma Inc., a company organized under the laws of Japan (“Partner”), having a principal place of business at 2-3-11 Nihonbashi-Honcho, Chuo-ku, Tokyo, 103-8411, Japan.