EXHIBIT 4.4
PARENT SUPPORT AGREEMENT
This AGREEMENT is made as of the 23rd day of October, 2000, by and
between Cubist Pharmaceuticals, Inc., a Delaware corporation with its principal
place of business at 24 Emily Street, Cambridge, Massachusetts ("Parent"), and
C&T Acquisition Corporation, a corporation duly organized under the laws of the
Province of British Columbia, Canada, and a wholly-owned subsidiary of Parent
("Acquisition Sub").
WHEREAS, Parent, Acquisition Sub, Target, and the Shareholders'
Representative have entered into an Acquisition Agreement (the "ACQUISITION
AGREEMENT"), pursuant to which all of the outstanding shares of Company Stock
shall, without any action on the part of the holders thereof, be deemed to be
transferred to the Acquisition Sub in exchange for Exchangeable Shares issued by
the Acquisition Sub (the "Exchangeable Shares) or shares of Parent Common Stock
issued by Parent;
WHEREAS, the plan of arrangement sets forth the special rights and
restrictions (collectively the "Exchangeable Share Provisions") attaching to the
Exchangeable Shares; and
WHEREAS, the parties hereto desire to make appropriate provision and to
establish a procedure whereby Parent will take certain actions and make certain
payments and deliveries necessary to ensure that Acquisition Sub will be able to
make certain payments and to deliver or cause to be delivered shares of Parent
Common Stock in satisfaction of the obligations of Acquisition Sub under the
Exchangeable Share Provisions with respect to the payment and satisfaction of
dividends, Liquidation Amounts, Retraction Prices and Redemption Prices all in
accordance with the Exchangeable Share Provisions.
NOW THEREFORE, in consideration of the respective covenants in this
Agreement and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS.
Each term denoted herein by initial capital letters and not otherwise
defined herein shall have the meaning ascribed thereto in the Exchangeable Share
Provisions,
unless the context requires otherwise.
1.2 SECTIONS AND HEADINGS.
The division of this Agreement into articles, sections and paragraphs
and the insertion of headings are for reference purposes only and shall not
affect the interpretation of this Agreement. Unless otherwise indicated, any
reference in this Agreement to an article, section and paragraph refers to the
specified article, section or paragraph of this Agreement.
1.3 NUMBER AND GENDER.
Words importing the singular number only shall include the plural and
vice versa. Words importing the use of any gender shall include all genders.
1.4 DATE FOR ANY ACTION.
If any date on which any action is required to be taken under this
agreement is not a Business Day, such action shall be required to be taken on
the next succeeding Business Day.
ARTICLE 2
COVENANTS OF PARENT AND ACQUISITION SUB
2.1 FUNDING OF THE ACQUISITION SUB.
So long as any Exchangeable Shares are outstanding:
(a) Parent shall not declare or pay any dividend on Parent Common
Stock unless (i) the Acquisition Sub shall have sufficient
assets, funds and other property (including, where applicable,
Parent Common Stock or other securities of Parent) available to
enable the due declaration and the due and punctual payment in
accordance with applicable law, of an equivalent dividend on the
Exchangeable Shares in accordance with the Exchangeable Share
Provisions and (ii) the Acquisition Sub shall simultaneously
declare or pay, as the case may be, an equivalent dividend on the
Exchangeable Shares in accordance with the Exchangeable Share
Provisions;
(b) Parent shall cause the Acquisition Sub to declare simultaneously
with the declaration of any dividend on Parent Common Stock an
equivalent dividend on the Exchangeable Shares and, when such
dividend is paid on Parent Common Stock, cause the Acquisition
Sub to pay simultaneously therewith such equivalent dividend on
the Exchangeable Shares, in each case in accordance with the
Exchangeable Share Provisions;
(c) Parent shall advise the Acquisition Sub sufficiently in advance
of the declaration by Parent of any dividend on Parent Common
Stock and take all such other actions as are necessary, in
cooperation with the Acquisition Sub, to ensure that the
declaration date, record date and payment date for any dividend
on the Exchangeable Shares shall be the same as the record date,
declaration date and payment date for the corresponding dividend
on Parent Common Stock and such dates in respect of dividends on
the Exchangeable Shares shall be in accordance with any
requirement of the Exchangeable Share Provisions;
(d) Parent shall ensure that the record date for any dividend
declared on Parent Common Stock, Parent Common Share
Reorganization or Capital Reorganization is not less than 10
Business Days after the declaration date for such dividend,
Parent Common Share Reorganization or Capital Reorganization;
(e) Parent shall take all such actions and do all such things as are
necessary or desirable to enable and permit Acquisition Sub, in
accordance with applicable law, to pay and otherwise perform its
obligations with respect to the satisfaction of the Liquidation
Amount in respect of each issued and outstanding Exchangeable
Share upon the liquidation, dissolution or winding-up of the
Acquisition Sub, including without limitation all such actions
and all such things as are necessary or desirable to enable and
permit the Acquisition Sub to cause to be delivered shares of
Parent Common Stock to the holders of Exchangeable Shares in
satisfaction of the Liquidation Amount for each such Exchangeable
Share, in accordance with the provisions of Article 4 of the
Exchangeable Share Provisions;
(f) Parent shall take all such actions and do such things as are
necessary or desirable to enable and permit the Acquisition Sub,
in accordance with applicable law, to pay and otherwise perform
its obligations with respect to the satisfaction of the
Retraction Price and the Redemption Price, including without
limitation all such actions and all such things as are necessary
or desirable to enable and permit the Acquisition Sub to cause to
be delivered shares of Parent Common Stock to the holders of
Exchangeable Shares, upon the retraction or redemption of the
Exchangeable Shares in accordance with the provisions of Article
5 or Article 6 of the Exchangeable Share Provisions, as the case
may be.
2.2 SEGREGATION OF FUNDS.
Parent will cause the Acquisition Sub to deposit a sufficient amount of
funds in a separate account and segregate a sufficient amount of such assets and
other property as is necessary to enable the Acquisition Sub to pay or otherwise
satisfy the applicable dividends, Liquidation Amount, Retraction Price or
Redemption Price, in each case for the benefit of holders from time to time of
the Exchangeable Shares, and will cause the
Acquisition Sub to use such funds, assets and other property so segregated
exclusively for the payment of dividends and the payment or other satisfaction
of the Liquidation Amount, the Retraction Price or the Redemption Price, as
applicable, in each case in accordance with the Exchangeable Share Provisions.
2.3 RESERVATION OF PARENT COMMON STOCK.
Parent hereby represents and warrants that it has irrevocably reserved
for issuance out of its authorized and unissued capital stock such number of
Parent Common Stock as is equal to the number of Exchangeable Shares outstanding
immediately following the Effective Date and all vested and unvested Replacement
Options, as that term is defined in the Acquisition Agreement, which are
unexpired and unexercised, and covenants that at all times in the future while
any Exchangeable Shares or Replacement Options are outstanding it will keep
available, free from pre-emptive and other rights, out of its authorized and
unissued capital stock such number of Parent Common Stock (or other shares or
securities into which Parent Common Stock may be reclassified or changed) as is
necessary to enable Parent and the Acquisition Sub to perform their respective
obligations pursuant to this agreement, the Exchangeable Share Provisions and
the Voting and Exchange Trust Agreement.
2.4 NOTIFICATION OF CERTAIN EVENTS.
In order to assist Parent to comply with its obligations hereunder
Acquisition Sub will give, or cause the Transfer Agent to give, Parent notice of
each of the following events at the time set forth below:
(a) immediately, upon receipt by the Transfer Agent of a Retraction
Request; and
(b) as soon as practicable upon the issuance by the Acquisition Sub
of any Exchangeable Shares or rights to acquire Exchangeable
Shares.
2.5 DELIVERY OF PARENT COMMON STOCK.
In furtherance of the obligations of Parent under subsections 2.l(e)
and (f) hereof, upon notice of any event that requires the Acquisition Sub to
cause to be delivered Parent Common Stock to any holder of Exchangeable Shares,
Parent shall forthwith deliver the requisite Parent Common Stock to or to the
order of the former holder of the surrendered Exchangeable Shares, as the
Acquisition Sub shall direct. All such Parent Common Stock shall be duly issued
as fully paid and non-assessable and shall be free and clear of any Liens. In
consideration of the delivery of each such share of Parent Common Stock by
Parent, the Acquisition Sub shall issue Parent, or as Parent shall direct, such
number of common shares of the Acquisition Sub as is equal to the fair value of
such share of Parent Common Stock.
2.6 QUALIFICATION OF PARENT COMMON STOCK.
The parties intend that the Exchangeable Shares issued pursuant to the
Plan of Arrangement and the shares of Parent Common Stock issued pursuant to the
Plan of Arrangement and shares of Parent Common Stock issuable in exchange for
the Exchangeable Shares will be issued in transactions (the "Contemplated
Issuances") exempt from registration under the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder ("Securities
Act"); PROVIDED, however, in the event the Securities Act would require, as a
condition precedent to any Contemplated Issuance, that the shares of Parent
Common Stock to be issued by Parent be registered under the Securities Act (and
that no exemption is then available from such registration statement), then,
Parent shall file a registration statement on Form S-3 with the United States
Securities and Exchange Commission covering such shares of Parent Common Stock
to be issued by Parent.
2.7 TENDER OFFERS, ETC.
In the event that a tender offer, share exchange offer, issuer bid,
take-over bid or similar transaction with respect to Parent Common Stock (an
"Offer") is proposed by Parent or is proposed to Parent or its stockholders and
is recommended by the Board of Directors of Parent, or is otherwise effected or
to be effected with the consent or approval of the Board of Directors of Parent,
Parent will use all commercially reasonable efforts expeditiously and in good
faith to take all such actions and do all such things as are necessary or
desirable to enable and permit holders of Exchangeable Shares to participate in
such Offer to the same extent and on an economically equivalent basis as the
holders of Parent Common Stock, without discrimination. Without limiting the
generality of the foregoing, Parent will use all commercially reasonable efforts
expeditiously and in good faith to ensure that holders of Exchangeable Shares
may participate in all such Offers without being required to retract
Exchangeable Shares as against the Acquisition Sub (or, if so required, to
ensure that any such retraction shall be effective only upon, and shall be
conditional upon, the closing of the Offer and only to the extent necessary to
tender or deposit to the Offer).
2.8 DUE PERFORMANCE.
On and after the Effective Date, Parent shall duly and timely perform
all of its obligations provided for in the Plan of Arrangement, including any
obligations that may arise upon the exercise of Parent's rights under the
Exchangeable Share Provisions.
2.9 ECONOMIC EQUIVALENCE.
Parent hereby acknowledges that it will be bound by any determination
of economic equivalence made by the Board of Directors pursuant to section 5.5
of the Plan of Arrangement or section 9.1 of the Exchangeable Share Provisions,
where applicable.
ARTICLE 3
GENERAL
3.1 TERM.
This agreement shall come into force and be effective as of the date
hereof and shall terminate and be of no further force and effect at such time as
there are no Exchangeable Shares (or securities or rights convertible into or
exchangeable for or carrying rights to acquire Exchangeable Shares) held by any
party, other than Parent and its Affiliates.
3.2 CHANGES IN CAPITAL OF PARENT AND THE ACQUISITION SUB.
Notwithstanding the provisions of section 3.4 hereof, at all times
after the occurrence of any event effected pursuant to section 2.7 hereof as a
result of which either Parent Common Stock or the Exchangeable Shares or both
are in any way changed, this Agreement shall forthwith be amended and modified
as necessary in order that it shall apply with full force and effect, mutatis
mutandis, to all new securities into which Parent Common Stock or the
Exchangeable Shares or both are so changed and the parties hereto shall execute
and deliver an agreement in writing giving effect to and evidencing such
necessary amendments and modifications.
3.3 SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remainder of this
Agreement shall not in any way be affected or impaired thereby and this
Agreement shall be carried out as nearly as possible in accordance with its
original terms and conditions.
3.4 AMENDMENTS, MODIFICATIONS, ETC.
This Agreement may not be amended or modified except by an agreement in
writing executed by Acquisition Sub and Parent and approved by the holders of
the Exchangeable Shares in accordance with section 8.2 of the Exchangeable Share
Provisions.
3.5 MINISTERIAL AMENDMENTS.
Notwithstanding the provisions of section 3.4, the parties to this
agreement may without the approval of the holders of the Exchangeable Shares, at
any time and from time to time, amend or modify this agreement in writing for
the purposes of:
(a) adding to the covenants of either or both parties for the
protection of the holders of the Exchangeable Shares;
(b) making such amendments or modifications not inconsistent with
this agreement as may be necessary or desirable with respect to
matters or questions which, in the opinion of the board of
directors of each of Acquisition Sub and Parent, it may be
expedient to make, provided that each such board of directors
shall be of the opinion that such amendments or modifications
will not be prejudicial to the interests of the holders of the
Exchangeable Shares; or
(c) making such changes or corrections which, on the advice of
counsel to Acquisition Sub and Parent, are required for the
purpose of curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or mistake or
manifest error herein, provided that the boards of directors of
each of Acquisition Sub and Parent shall be of the opinion that
such changes or corrections will not be prejudicial to the
interests of the holders of the Exchangeable Shares.
3.6 MEETING TO CONSIDER AMENDMENTS.
Acquisition Sub, at the request of Parent, shall call a meeting or
meetings of the holders of the Exchangeable Shares for the purpose of
considering any proposed amendment or modification requiring approval pursuant
to section 3.4 hereof. Any such meeting or meetings shall be called and held in
accordance with the articles of the Acquisition Sub and the Exchangeable Share
Provisions.
3.7 WAIVERS ONLY IN WRITING.
No waiver of any of the provisions of this agreement otherwise
permitted hereunder shall be effective unless made in writing and signed by both
of the parties hereto.
3.8 ENUREMENT.
This agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and Permitted Assigns.
3.9 PARENT SUCCESSORS.
Parent shall not consummate any transaction (whether by way of
reconstruction, reorganization, consolidation, merger, transfer. sale, lease or
otherwise) whereby all or substantially all its undertaking, property and assets
would become the property of any other person or, in the case of a merger, of
the continuing corporation resulting therefrom, unless, but may do so if, such
other person or continuing company (the "Parent Successor"), by operation of
law, becomes, without more, bound by the terms and provisions of this Agreement
or, if not so bound, executes, prior to or contemporaneously with the
consummation of such transaction, an agreement supplemental hereto to be bound
by the provisions hereof as if it were an original party
hereto and to observe and perform all of the covenants and obligations of Parent
pursuant to this agreement, in form satisfactory to the Acquisition Sub, acting
reasonably.
Nothing herein shall be construed as preventing the amalgamation or
merger of any wholly-owned subsidiary of Parent with or into Parent, provided
that such transaction complies with this section 3.9.
3.10 NOTICES TO PARTIES.
All notices, requests and other communications between the parties
hereunder shall be in writing and shall be deemed to have been given only if
delivered personally against written receipt or by facsimile transmission
against facsimile confirmation or mailed by registered mail, return receipt
requested or mailed by overnight courier prepaid, to the parties at the
following addresses or facsimile numbers (or at such other address for either
such party as shall be specified in like notice):
(a) if to Parent or Acquisition Sub at:
Cubist Pharmaceuticals, Inc.
24 Emily Street
Cambridge, MA 02139
Facsimile No.: 617-134-5592
Attention: President and Chief Executive Officer
with a copy to:
Bingham Dana LLP
150 Federal Street
Boston, Massachusetts
U.S.A. 02110
Facsimile No.: (617) 951-8736
Attention: Julio E. Vega, Esq.
Matthew J. Cushing, Esq.
Davis & Company
2800 Park Place
666 Burrard Place
Vancouver, British Columbia V6C2Z7
Facsimile No.: 604-687-1612
Attention: Albert J. Hudec, Esq.
All such notices, requests and other communications shall (i) if
delivered personally to the address as provided in this Section, be deemed given
upon delivery, (ii)
if delivered by facsimile transmission to the facsimile number as provided for
in this Section, be deemed given upon facsimile confirmation, (iii) if delivered
by mail in the manner described above to the address as provided for in this
Section, be deemed given on the earlier of the third Business Day following
mailing or upon receipt and (iv) if delivered by overnight courier to the
address as provided in this Section, be deemed given on the earlier of the first
Business Day following the date sent by such overnight courier or upon receipt
(in each case regardless of whether such notice, request or other communication
is received by any other Person to whom a copy of such notice is to be delivered
pursuant to this Section). Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that party
by giving notice specifying such change to the other party hereto.
3.11 COUNTERPARTS.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute one and the
same instrument.
3.12 JURISDICTION.
This agreement shall be construed and enforced in accordance with the
laws of The Commonwealth of Massachusetts.
3.13 ATTORNMENT.
Each of Parent and Acquisition Sub agree that any action or proceeding
arising out of or relating to this agreement may be instituted in the courts of
The Commonwealth of Massachusetts, waives any objection which it may have now or
hereafter to the venue of any such action or proceeding, irrevocably submits to
the jurisdiction of the said courts in any such action or proceeding, agrees to
be bound by any judgment of the said courts and not to seek, and hereby waives,
any review of the merits of any such judgment by the courts of any other
jurisdiction.
ARTICLE 4
ASSIGNMENT
4.1 ASSIGNMENT
Parent may assign all or a portion of its rights and obligations
hereunder to an Affiliate of Parent (collectively the "Permitted Assigns" and
either individually a "Permitted Assign") without the consent of Acquisition
Sub, whereupon Acquisition Sub or Parent shall enter into a supplemental
agreement reflecting such assignment, provided that Parent shall not thereby be
released from such obligations.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the date first above written.
CUBIST PHARMACEUTICALS, INC.
By: /s/ Scott M. Rocklage
-------------------------------------
Name: Scott M. Rocklage
Title: Chairman of the Board, Chief
Executive Officer and President
C&T ACQUISITION CORPORATION
By: /s/ Scott M. Rocklage
-------------------------------------
Name: Scott M. Rocklage
Title: Chief Executive Officer and
President