Exhibit 10.2
CUBIST PHARMACEUTICALS, INC.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
September 10, 1998 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,
6,065,560 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 Securities Purchase Agreement, dated of even date
herewith, between the Company and the Initial Investors (the "Securities
Purchase Agreement"), and has agreed to issue to each of the Initial Investors
Common Stock Purchase Warrants exercisable, in the aggregate, for that number of
shares of Common Stock as shall be equal to 50% of the Purchased Shares; and
WHEREAS, the terms of the Securities 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
Securities 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 Securities.
"Qualifying Holder" shall have the meaning ascribed thereto in Section
12 hereof.
"Registrable Shares" shall mean the Purchased Shares and the Warrant
Shares, provided, however, such term shall not, after the Mandatory Registration
Termination Date, include any of the Purchased Shares or Warrant Shares of any
Purchaser who can sell all of its Purchased Shares and Warrant Shares under Rule
144 within the next 90 days.
"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" shall mean the Purchased Shares, the Warrants and the
Warrant Shares.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
all of the rules and regulations promulgated thereunder.
"Warrants" shall mean, collectively, the Common Stock Purchase Warrants
issued by the Company to the Initial Investors pursuant to the Securities
Purchase Agreement.
"Warrant Shares" shall mean the shares of Common Stock issued and/or
issuable upon exercise of any or all of the Warrants.
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 therefor, upon the termination of the Securities
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, or, if Form
S-3 is not available, on Form S-1, 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 its best
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.
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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 30 days after the giving of any such notice by the Company, the
Company shall use its best 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 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.
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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 (and in any
event within 10 days) 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
(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 must be borne by the selling Investors and may not
be paid or reimbursed by the Company, then the selling Investors shall,
to the extent required by such jurisdiction, pay their pro rata share
of such qualification expenses.
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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. In addition, the Company shall reimburse the Investors as a group for
the reasonable accountable costs and expenses incurred by one legal counsel to
the selling Investors as a group.
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.
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(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 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.
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(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.
(e) The parties hereto acknowledge that the names H&Q Healthcare
Investors and H&Q Life Sciences Investors (collectively, the "H&Q Trusts") are
the designation of the Trustees for the time being under Declarations of Trust
dated April 21, 1987, as amended, and February 20, 1992, as amended,
respectively, and all persons dealing with either H&Q Trust must look solely to
the trust property of such H&Q Trust for the enforcement of any claim against
such H&Q Trust, as neither the respective Trustees, officers nor shareholders of
either H&Q Trust assume any personal liability for the obligations entered into
on behalf of such H&Q Trust.
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 and
the Warrant 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 Securities, 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 Securities 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
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prospectus relating thereto). Notwithstanding the foregoing, the Company shall
not be entitled to Suspension Periods totaling more than 90 days in any
consecutive twelve-month period during the term of this Agreement.
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 or, in addition in the
case of Sofinov, a governmental body, 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.
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
each Investor 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 Securities 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 Securities, 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.
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(ii) All correspondence to the Company shall be addressed as follows:
Cubist Pharmaceuticals, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
Telecopier (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
and
▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(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.
(e) This Agreement may be executed in a number of
counterparts, an 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
CUBIST PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
President and Chief Executive Officer
PURCHASERS:
SOFINOV SOCIETE FINANCIERE
D'INNOVATION INC.
By: /s/ Denis Dionnne
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
ROVENT II LIMITED PARTNERSHIP
By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation,
General Partner
By: /s/ ▇▇▇▇▇ Fisherman
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Name: ▇▇▇▇▇ Fisherman
Title: Vice President
SPECIAL SITUATIONS PRIVATE EQUITY
FUND, L.P.
By: MG Advisers, L.L.C.,
General Partner
By: /s/ ▇▇▇▇▇ ▇. Greenhouse
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Name: ▇▇▇▇▇ ▇. Greenhouse
Title:
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SPECIAL SITUATIONS FUND III, L.P.
By: MGP Advisers, Limited Partnership,
General Partner
By: AWM Investment Company, Inc.,
General Partner
By: /s/ ▇▇▇▇▇ ▇. Greenhouse
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Name: ▇▇▇▇▇ ▇. Greenhouse
Title:
SPECIAL SITUATIONS CAYMAN FUND, L.P.
By: AWM Investment Company, Inc.,
General Partner
By: /s/ ▇▇▇▇▇ ▇. Greenhouse
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Name: ▇▇▇▇▇ ▇. Greenhouse
Title:
BIOTECHNOLOGY DEVELOPMENT
FUND, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Partner
BIOCAPITAL INVESTMENTS LIMITED
PARTNERSHIP
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: General Partner, President and CEO
CLARION CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
-11-
INTERNATIONAL BIOTECHNOLOGY
TRUST plc
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director
H & Q HEALTHCARE INVESTORS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President
H & Q LIFE SCIENCES INVESTORS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President
LANCASTER INVESTMENT PARTNERS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Manager, General Partner
CPR (USA) INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Administrative Officer and General
Counsel
-12-
NEW YORK LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director, Venture Capital
▇▇▇▇▇▇ PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST, NEW
TECHNOLOGIES FUND
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, TTEE
Title: Trustee
BIOTECHNOLOGY DEVELOPMENT
FUND III, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Partner
-13-
Exhibit 10.2
EXHIBIT A
Name and Address
SOFINOV SOCIETE FINANCIERE LANCASTER INVESTMENT SPECIAL SITUATIONS FUND III,
D'INNOVATION INC. PARTNERS L.P.
Address: Address: Address:
1981, Avenue ▇▇▇▇▇▇ College ▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ 153 East 53rd Street
7e etage King of Prussia, PA 19406 ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
ROVENT II LIMITED PARTNERSHIP CPR (USA) INC. SPECIAL SITUATIONS CAYMAN
Address: FUND, L.P.
c/o Advent International Address: Address:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ c/o Liberty View Capital ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
BIOTECHNOLOGY DEVELOPMENT NEW YORK LIFE INSURANCE INTERNATIONAL
FUND, L.P. COMPANY BIOTECHNOLOGY TRUST plc
Address: Address: Address:
▇/▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇/▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Management
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
BIOTECHNOLOGY DEVELOPMENT ▇▇▇▇▇▇ PARTNERS, L.P. H & Q HEALTHCARE
FUND III, L.P. INVESTORS, INC.
Address: Address: Address:
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇/▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
BIOCAPITAL INVESTMENTS LIMITED ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST, NEW H & Q LIFE SCIENCES
PARTNERSHIP TECHNOLOGIES FUND INVESTORS, INC.
Address: Address: Address:
▇▇▇▇, ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇ c/o Emerging Growth MGMT Co. ▇/▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ One Embarcadero Center, Ste 2410 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
CLARION CAPITAL SPECIAL SITUATIONS PRIVATE EQUITY
CORPORATION FUND, L.P.
Address: Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT B
CUBIST PHARMACEUTICALS, INC.
Instrument of Adherence
Reference is hereby made to that certain Registration Rights Agreement,
dated as of September 10, 1998, 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 and/or a Common Stock Purchase Warrant exercisable for __________ shares
of Common Stock], 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: ____________________
