Exhibit 10.28
CUBIST PHARMACEUTICALS, INC.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of July
18, 1997 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 upon the due execution and delivery by such person or entity and
the Company of an Instrument of Adherence in the form of Exhibit B attached
hereto (collectively, the "Investor Transferees" and each individually an
"Investor Transferee").
W I T N E S S E T H:
WHEREAS, the Company has agreed to issue and sell to the Initial Investors,
and the Initial Investors have agreed to purchase from the Company, shares of
the Company's common stock, $0.001 par value per share (the "Common Stock"), all
upon the terms and conditions set forth in that certain Stock Purchase
Agreement, dated of even date herewith, between the Company and the Initial
Investors (the "Stock Purchase Agreement"); and
WHEREAS, the terms of the Stock Purchase Agreement provide that it shall be
a condition precedent to the closing of the transactions thereunder, for the
Company and the Initial Investors to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. The following terms shall have the meanings provided
therefor below or elsewhere in this Agreement as described below:
"Board" shall mean the board of directors of the Company.
"Closing" shall have the meaning ascribed to such term in the Stock
Purchase Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Investors" shall mean, collectively, the Initial Investors and the
Investor Transferees, so long as they are holders of any of the Shares.
"Majority Holders" shall mean, at the relevant time of reference thereto,
those Investors holding more than fifty percent (50%) of the Registrable Shares
held by all of the Investors at such time.
"Qualifying Holder" shall have the meaning ascribed thereto in Section 13
hereof.
"Registrable Shares" shall mean the Shares; provided, however, that the
term "Registrable Shares" shall not include (A) any of the Shares that become
eligible for resale pursuant to Rule 144 or (B) any of the Shares that become
eligible for resale pursuant to Regulation S (it being understood and agreed
that any controversy, disagreement or issue between the Company and any
Purchaser as to whether any of the Shares has become eligible for resale
pursuant to Regulation S will be conclusively resolved in the manner determined
by counsel for such Purchaser (which counsel must be experienced in U.S.
securities law matters and must be reasonably satisfactory to the Company; it
being agreed that Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol shall be deemed
to be counsel satisfactory to the Company) in a written legal opinion
satisfactory only to such Purchaser, but addressed and delivered to such
Purchaser and the Company (it being understood that the Company may rely on such
opinion)).
"Regulation S" shall mean Regulation S promulgated under the Securities Act
and any successor or substitute regulation, law or provision.
"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.
"Section 2 Registration Termination Date" shall mean the first date after
the effective date of the Mandatory S-1 Registration Statement on which neither
the Mandatory S-1 Registration Statement (as defined in Section 2(a) hereof) nor
the Mandatory S-3 Registration Statement (as defined in Section 2(b) hereof)
shall be in effect.
"Securities Act" shall mean the Securities Act of 1933, as amended.
2
"Shares" shall mean those shares of Common Stock purchased by the Initial
Investors from the Company pursuant to the Stock Purchase Agreement.
2. MANDATORY REGISTRATION.
(a) Within thirty (30) days after the date hereof, the Company will
prepare and file with the SEC a registration statement 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 Initial Investors as selling
stockholders thereunder (the "Mandatory S-1 Registration Statement"). The
Mandatory S-1 Registration Statement shall permit the Initial 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
commercially reasonable efforts to cause the Mandatory S-1 Registration
Statement to become effective as soon as practicable. The Company shall only be
required to keep the Mandatory S-1 Registration Statement effective until the
earlier of (i) the date when all of the Registrable Shares registered thereunder
shall have been sold, (ii) the date on which the Mandatory S-1 Registration
Statement is converted into a registration statement on Form S-3 pursuant to
Section 2(b) below or (iii) the first anniversary of the Closing. Thereafter,
the Company shall be entitled to withdraw the Mandatory S-1 Registration
Statement and the Initial Investors shall have no further right to offer or sell
any of the Registrable Shares pursuant to the Mandatory S-1 Registration
Statement (or any prospectus relating thereto).
(b) At any time from and after the date that the Company shall have become
eligible to file and use a registration statement on Form S-3, the Company shall
be entitled to convert the Mandatory S-1 Registration Statement into a
registration statement on Form S-3 (the "Mandatory S-3 Registration Statement").
The Mandatory S-3 Registration Statement shall permit the Initial Investors to
offer and sell as selling stockholders, on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act, any or all of the Registrable
Shares that were not previously sold pursuant to the Mandatory S-1 Registration
Statement. The Company shall only be required to keep the Mandatory S-3
Registration Statement effective until the earlier of (i) the date when all of
the Registrable Shares registered thereunder shall have been sold or (ii) the
first anniversary of the Closing. Thereafter, the Company shall be entitled to
withdraw the Mandatory S-3 Registration Statement and the Initial Investors
shall have no further right to offer or sell any of the
3
Registrable Shares pursuant to the Mandatory S-3 Registration Statement (or
any prospectus relating thereto).
(c) The right of the Initial Investors to offer or sell any of the
Registrable Shares pursuant to the Mandatory S-1 Registration Statement (or any
prospectus relating thereto) shall be suspended during the period commencing on
the date the Company sends written notice to the Initial Investors informing
them that it will begin the process of converting the Mandatory S-1 Registration
Statement into the Mandatory S-3 Registration Statement pursuant to Section 2(b)
above and ending as soon as practicable but in no event later than forty five
(45) days thereafter, unless within such forty-five day period the Mandatory S-1
Registration Statement shall have been converted into the Mandatory S-3
Registration Statement, in which case the right of the Initial Investors to sell
any of the Registrable Shares pursuant to the Mandatory S-1 Registration
Statement (or any prospectus relating thereto) shall forever terminate. The
limitations imposed by the immediately preceding sentence on the rights of the
Initial Investors to sell any of the Registrable Shares pursuant to the
Mandatory S-1 Registration Statement (or any prospectus relating thereto) shall
be in addition to, and not in lieu of, the limitations imposed by Section 2(a)
and Section 5(d) hereof on such rights.
(d) No registration under this Section 2, whether pursuant to the
Mandatory S-1 Registration Statement or the Mandatory S-3 Registration
Statement, shall be underwritten unless the Company shall otherwise elect in its
sole and absolute discretion.
3. "PIGGYBACK REGISTRATION". If, at any time after the Section 2
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
registration pursuant to Sections 2 or 4 hereof or 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 written notice of its intent to do
so. Upon the written request of any Investor given within 30 days after the
giving of any such notice by the Company, the Company shall use commercially
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 ten percent (10%) of the total number of
Registrable Shares then held by such selling Investor, (ii) such selling
Investor agrees to sell those of its Registrable Shares to be included in
4
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, 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) is likely to affect adversely the success of
the offering or the price the Company would receive for any shares of Common
Stock offered by it pursuant thereto, in which case the rights of such
selling Investor shall be as provided in Section 8 hereof.
4. FORM S-3 REGISTRATION.
(a) Registration Upon Request; Limitations. In the event that, at any
time or from time to time after the Section 2 Registration Termination Date, the
Company shall receive from any Investor or Investors a written request or
requests that the Company effect a registration on Form S-3, or any successor or
substitute form, with respect to all or a part of the Registrable Shares owned
by such Investor or Investors, then the Company will promptly give written
notice of the proposed registration and the Investor's or Investors' request
therefor to all other Investors, and, as soon as practicable, use commercially
reasonable efforts to effect such registration of all or such portion of such
Investor's or Investors' Registrable Shares as are specified in such request,
together with all or such portion of the Registrable Shares of any other
Investor or Investors joining in such request as are specified in a written
request given within twenty (20) days after receipt of such written notice from
the Company; provided, however, that the Company shall have no obligation under
this Section 4(a) to effect any registration requested by any Investor or
Investors if the Company has previously given a notice of the type specified in
Section 3 hereof or this Section 4(a) and the Company is, at the time such
registration is requested by such Investor or Investors, continuing to pursue
the registration referred to in such notice or if the registration referred to
in such notice is then effective; and provided, further, that the obligations of
the Company under this Section 4(a) shall be subject to the limitations set
forth in Sections 4(c), 4(d) and 4(e) below. The Company may include in any
registration pursuant to Section 4(a) hereof additional shares of Common Stock
for sale for its own account or for the account of any other person. No
registration under this Section 4(a) shall be underwritten unless the Company
shall otherwise elect in its sole and absolute discretion.
5
(b) Selection of Underwriters. If a registration pursuant to Section 4(a)
hereof involves an underwritten offering, the underwriter or underwriters
thereof shall be selected by the Company.
(c) Limitation on Number of Registrations. The Company shall not be
required to effect more than three (3) registrations during any calendar year
pursuant to the provisions of Section 4(a) hereof.
(d) Limitation on Company's Obligation. Notwithstanding anything in this
Section 4 to the contrary, but in all events subject to the provisions of
Section 4(f) hereof, the Company shall not be obligated to effect any
registration pursuant to this Section 4:
(1) if such Investor or Investors request registration
pursuant to this Section 4 at any time prior to the Section 2 Registration
Termination Date;
(2) if Form S-3, or any successor or substitute form, is
not then available for the registration of such Registrable Shares proposed to
be sold and distributed by such Investor or Investors;
(3) if such Investor or Investors, together with the
holders of any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Shares and such other securities (if
any) at an aggregate price to the public of less than $1,000,000; or
(4) if the Company shall furnish to the Investors a
certificate signed by the President and Chief Executive Officer of the Company
stating that the Board has made the good faith determination that a registration
would require premature disclosure of material, nonpublic information concerning
the Company, its business or prospects, that such premature disclosure would be
materially adverse to the Company and that it is therefore essential to defer
such registration, then the Company shall have the right to defer such
registration for a period of not more than 90 days after receipt of the request
from such Investors; provided, however, that the Company may not utilize this
right more than once with respect to each registration made pursuant to, and in
accordance with, Section 4(a) hereof and provided, further, however, that each
and every person or entity (other than the Purchasers) which is entitled to
exercise registration rights with respect to any equity securities of the
Company is subject to obligations of the kind contemplated by this Section
4(d)(4) which are at least as burdensome as those provided in this Section
4(d)(4).
6
(e) Limitation on Requests. Notwithstanding anything in this Section 4 to
the contrary, no Investor may request a registration pursuant to this Section 4
within ninety (90) days of the effective date of any other registration
statement filed by the Company with the SEC pursuant to this Section 4.
(f) Unavailability for Form S-3. Notwithstanding anything to the contrary
expressed or implied in this Agreement, if Form S-3 or any substitute form is
not then available for the registration of such Registrable Shares that would
otherwise have been proposed to be sold and distributed by such Investor or
Investors pursuant to this Section 4, the Company shall be obligated to prepare
and file a registration statement on Form S-1 at the written request or requests
from any Investor or Investors given in accordance with Section 4(a) and the
provisions of this Section 4 (other than Section 4(d)(2)) shall govern and apply
to such request or requests and such registration on Form S-1.
5. OBLIGATIONS OF THE COMPANY. Whenever the Company is required under
Section 2, 3 or 4 hereof to use commercially reasonable efforts to effect the
registration of any of the Registrable Shares of the Investors, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare (and afford counsel to the selling Investors reasonable
opportunity to review and comment) and file with the SEC a registration
statement with respect to such Registrable Shares and use commercially
reasonable efforts to cause such registration statement to become and
remain effective; provided, however that, except to the extent otherwise
provided in Section 2 hereof, the Company shall in no event be obligated to
cause any such registration to remain effective for more than 90 days;
(b) Prepare (and afford counsel to the selling Investors reasonable
opportunity to review and comment thereon) and file with the SEC such
amendments and supplements to such 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 such registration statement;
(c) 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
7
with Section 5(d) below) as the selling Investors may reasonably request in
order to facilitate the disposition of such Registrable Shares;
(d) Notify the Investors, at any time when a prospectus relating to
such 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 such 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 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 Investors will not offer or sell
Registrable Shares until the Company has notified the Investors that it has
prepared a supplement or amendment to such prospectus and delivered copies
of such supplement or amendment to the 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(d)
and deliver copies of same as above provided in Section 5(c) hereof); and
(e) Use commercially reasonable efforts to register and qualify such
Registrable Shares 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, 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 the Registrable Shares shall be
qualified shall require that expenses incurred in connection with the
qualification therein of the securities be borne by selling shareholders,
then the selling Investors shall, to the extent required by such
jurisdiction, pay their pro rata share of selling expenses.
6. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this
8
Agreement that the selling Investors shall furnish to the Company such
information regarding them and the securities of the Company 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 a
registration pursuant to this Agreement (excluding underwriting commissions and
discounts and counsel fees of the selling Investors), including without
limitation all registration and qualification fees, printing, and fees and
disbursements of counsel for the Company, shall be borne by the Company;
provided, however, that the Investors participating as selling shareholders in
the second or third registration pursuant to Section 4 hereof during any
calendar year shall pay all expenses incurred in connection with such
registration(s) on a pro rata basis in accordance with the number of Registrable
Shares which are included in such registration(s) by such Investors thereunder;
and provided, further, that the Investors participating as selling shareholders
in any registration(s) on Form S-1 pursuant to Section 4(f) hereof shall pay
one-half of the expenses incurred in connection with such registration(s) and
the Company shall pay the other half of such expenses.
8. UNDERWRITING REQUIREMENTS; REDUCTION OF SHARES TO BE INCLUDED IN A
REGISTRATION. In connection with any offering involving an underwriting of
shares being issued by the Company, the Company shall not be required under
Section 3 hereof or otherwise to include the Registrable Shares of any
Investor therein unless such Investor accepts and agrees to the terms of the
underwriting as agreed upon between the Company and the underwriters selected
by the Company, and then only in such quantity as (without any reduction in
the numbers of shares to be sold for the account of the Company) will not, in
the opinion of the underwriters, jeopardize the success of the offering by
the Company. If the total number of shares of stock which all selling
stockholders of the Company (including, without limitation, the selling
Investors) request to be included in any offering exceeds the number of
shares which the underwriters believe to be compatible with the success of
the offering, the Company shall only be required to include in the offering
so many of the shares of stock of the selling shareholders (including,
without limitation, the selling Investors) as the underwriters believe will
not (without any reduction in the number of shares to be sold for the account
of the Company) jeopardize the success of the offering (the shares so
included to be apportioned pro rata among the selling shareholders according
to the total number of shares of Common Stock owned by said
9
selling shareholders, or in such other proportions as shall mutually be
agreed to by such selling shareholders).
9. 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.
10. INDEMNIFICATION. In the event that any Registrable Shares of the
Investors are included in a registration statement pursuant to this Agreement:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each selling Investor, any underwriter (as defined in the
Securities Act) for the Company, and each officer and director of such
selling Investor or such underwriter and each person, if any, who controls
such selling Investor or such underwriter 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 such
registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, 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 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 if it is judicially determined that there were material
misstatements or omission; provided, however, that the indemnity agreement
contained in this Section 10(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 such registration statement,
preliminary prospectus, final prospectus, or amendments or supplements
thereto, in reliance upon and in conformity with written
10
information furnished expressly for use in connection with such registration
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
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed such registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any
underwriter for the Company (within the meaning of the Securities Act), and
all other selling Investors against any losses, claims, damages or
liabilities to which the Company or any such director, officer, controlling
person, or underwriter 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 such
registration statement, including any preliminary prospectus contained
therein or any amendments or supplements thereto, 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 that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in such registration statement, preliminary prospectus, final
prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished by the selling Investor
expressly for use in connection with such registration; and such selling
Investor will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer, controlling person, underwriter
or other selling Investor in connection with investigating or defending any
such loss, claim, damage, liability or action if it is judicially
determined that there were material misstatements or omissions, 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 such registration statement, and provided, further, however,
that the indemnity agreement contained in this Section 10(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).
11
(c) Promptly after receipt by an indemnified party under this Section
10 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 10, 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
parties. 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 10, 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 10.
11. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to
the Investors the use of Section 4 hereof and 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 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 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 Shares without registration and (iv) undertake any additional actions
reasonably necessary to maintain the availability of a registration statement on
Form S-3, including any successor or substitute forms, or the use of Rule 144.
12. LOCKUP AGREEMENT. Each Investor which, together with its
affiliates, holds or owns (at the time of the written request of the Company
or managing underwriter referred to below in this Section 12 or at any time
during the 180 day period commencing on the effective date of the
registration statement relating to such underwritten public offering of
12
the Company's securities) of record or beneficially (within the meaning of
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder) five percent (5%) or more of the then issued and outstanding
shares of common stock of the Company hereby agrees that, at the written
request of the Company or any managing underwriter of any underwritten public
offering of securities of the Company, such Investor shall not, without the
prior written consent of the Company or such managing underwriter, sell, make
any short sale of, loan, grant any option for the purchase of, pledge,
encumber, or otherwise dispose of, or exercise any registration rights with
respect to, any Shares during the 180 day period commencing on the effective
date of the registration statement relating to such underwritten public
offering of the Company's securities.
13. 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 13, the term "Qualifying Holder" shall mean, with respect to any
Investor, (i) any partner thereof, (ii) any corporation or partnership
controlling, controlled by, or under common control with, such Investor or any
partner thereof, or (iii) any other direct transferee of at least 250,000
(subject to proportionate adjustment upon the occurrence of any stock split,
stock dividend or reverse stock split of the Common Stock) Registrable Shares
from such Investor. Notwithstanding anything in this Section 13 to the
contrary, none of the rights or obligations of any Investor under this Agreement
shall be transferred, assigned or delegated to any direct transferee of
Registrable Shares from such Investor if and to the extent that the transfer of
such Registrable Shares was effected pursuant to a "broker's transaction" within
the meaning of Rule 144.
14. 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.
15. 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.
13
(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 13 hereof are satisfied. This Agreement shall also be
binding upon and inure to the benefit of any transferee of any of the Shares
provided that the terms and conditions of Section 13 hereof are satisfied.
Notwithstanding anything in this Agreement to the contrary, if at any time any
Investor shall cease to own any Shares, all of such Investor's rights under this
Agreement shall immediately terminate.
(c) Any notices to be given pursuant to this Agreement shall be in
writing and shall be given by certified or registered mail, return receipt
request. Notices shall be deemed given when personally delivered or when mailed
to the addresses of the respective parties as set forth on Exhibit A hereto, or
to such changed address of which any party may notify the others pursuant
hereto, except that a notice of change of address shall be deemed given when
received.
(d) The parties acknowledge and agree that in the event of any breach
of this Agreement, remedies at law will be inadequate, and each of the parties
hereto shall be entitled to specific performance of the obligations of the other
parties hereto and to 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
CUBIST PHARMACEUTICALS, INC.
By: /s/Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx, President
INITIAL INVESTORS
INTERNATIONAL BIOTECHNOLOGY
TRUST plc
By:
-------------------------------------
Name:
Title:
15
EXHIBIT A
---------
Name and Address of Initial Investors
-------------------------------------
International Biotechnology Trust plc
Five Xxxxxx Xxxxx
Xx. Xxxxxxx'x Xxxx
Xxxxxx XX0X 0XX
Xxxxxxx
EXHIBIT B
---------
CUBIST PHARMACEUTICALS, INC.
Instrument of Adherence
-----------------------
Reference is hereby made to that certain Registration Rights Agreement,
dated as of July [__], 1997, among Cubist Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), the Initial Investors and the Investor 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 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 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:
------------------------------
Accepted:
CUBIST PHARMACEUTICALS, INC.
By:
-------------------------------
Date:
-------------------
