EXHIBIT 4.2


 


FIRST AMENDMENT TO
RIGHTS AGREEMENT


 


This FIRST AMENDMENT TO RIGHTS AGREEMENT (this “AMENDMENT”),
dated as of March 3, 2000, is by and between Cubist Pharmaceuticals, Inc.,
a Delaware corporation (the “Company”), and Fleet National Bank f/k/a BankBoston,
N.A, a national banking association organized and existing under the laws of
the United States of America (the “RIGHTS AGENT”). Capitalized terms used
herein without definition shall have the respective meanings ascribed to such
terms in the Rights Agreement (as defined below); 


 


WHEREAS, the Company and the Rights Agent
entered into a Rights Agreement, dated as of July 21, 1999 (the “RIGHTS
AGREEMENT”); 


 


WHEREAS, all acts necessary to make this
Amendment a valid agreement, enforceable according to its terms, have been done
and performed, and the execution and delivery of this Amendment by the Company
and the Rights Agent have been in all respects duly authorized by the Company
and the Rights Agent; and 


 


WHEREAS, the Company and the Rights Agent desire
to amend the Rights Agreement pursuant to Section 28 thereof, which
authorizes the Company and the Rights Agent to supplement or amend any
provision of the Rights Agreement without the approval of any holders of
certificates representing Preferred Shares. 


 


NOW, THEREFORE, in consideration of the promises
and mutual agreements herein set forth, the parties hereto hereby agree as
follows:


 


1.                                       The Rights
Agreement is hereby amended by deleting Section 7(b) in its entirety
and substituting in place thereof:


 


“(b)   The Purchase
Price for each one one-hundredth of a Preferred Share upon the exercise of a
Right will initially be $490.00, will be subject to adjustment from time to
time as provided in Sections 11 and 13 hereof, and will be payable in lawful money
of the United States of America in accordance with Section 7(c) hereof
(the ‘PURCHASE PRICE’).” 


 


2.                                       The Rights
Agreement is hereby amended by deleting Exhibit B in its entirety and
substituting in place thereof the Form of Amended Rights Certificate
attached hereto as Exhibit B. 


 


3.                                       The Rights
Agreement is hereby amended by deleting Exhibit C in its entirety and
substituting in place thereof the Amended Summary of Rights attached hereto as Exhibit C.



 


4.                                       The Rights
Agreement, as amended by this Amendment, shall remain in full force and effect
in accordance with its terms.


 


5.                                       This
Amendment may be executed in one or more counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute one and the same instrument. 


 


1





















 


6.                                       This
Amendment will be deemed to be a contract made under the laws of the State of
Delaware and for all purposes will be governed by and construed in accordance
with the laws of such State applicable to contracts to be made and performed
entirely within such State. 


 





















 


IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be duly executed and attested, as an agreement under
seal, as of the date first above written. 


 


 


	
   

  	
  CUBIST
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
  By: 
  /s/ SCOTT M. ROCKLAGE

  	
   

  
	
   

  	
  Name:
  

  	
  Scott
  M. Rocklage

  
	
   

  	
  Title:

  	
  Chairman
  of the Board of Directors,

  
	
   

  	
   

  	
  Chief
  Executive Officer and President

  
	
   

  	
   

  	
   

  
	
   

  	
  FLEET
  NATIONAL BANK

  
	
   

  	
   

  
	
   

  	
  By:
  /s/ CHRISTOPHER RICHARD

  	
   

  
	
   

  	
  Name:
  

  	
  Christopher
  Richard

  
	
   

  	
  Title:
  

  	
  Director

  
	
  ATTEST:

  	
   

  
	
   

  	
   

  
	
  /s/
  THOMAS A. SHEA

  	
   

  
	
  Name:
  Thomas A. Shea

  	
   

  
						



 





















 


EXHIBIT B


 


[FORM OF AMENDED
RIGHTS CERTIFICATE]


 


	
  CERTIFICATE
  NO. R

  	
                              RIGHTS

  



 


NOT EXERCISABLE AFTER AUGUST 3, 2009, OR
EARLIER IF NOTICE OF REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT, AT
THE OPTION OF THE COMPANY, TO REDEMPTION AT $0.0001 PER RIGHT AND TO EXCHANGE
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE
RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL
AND VOID. 


 


RIGHTS CERTIFICATE


 


CUBIST PHARMACEUTICALS,
INC.


 


This certifies that, or registered assigns, is
the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions, and conditions of
the Rights Agreement, dated as of July 21, 1999 (the “RIGHTS AGREEMENT”),
by and between Cubist Pharmaceuticals, Inc. (the “COMPANY”), a Delaware
corporation, and Fleet National Bank f/k/a BankBoston, N.A. (the “RIGHTS AGENT”),
to purchase from the Company at any time after the Distribution Date (as
defined in the Rights Agreement) and prior to 5:00 P.M., Boston time, on August 3,
2009, at the office of the Rights Agent designated for such purpose, or at the
office of its successor as Rights Agent designated for such purpose, one
one-hundredth of a share of the Series A Junior Participating Preferred
Stock, par value $0.001 per share (the “PREFERRED SHARES”), of the Company, at
a purchase price of $490.00 per one one-hundredth of a Preferred Share (the “PURCHASE
PRICE”), upon presentation and surrender of this Rights Certificate with the Form of
Election to Purchase duly executed. The number of Rights evidenced by this
Rights Certificate (and the number of one one-hundredths of a Preferred Share
that may be purchased upon exercise hereof) set forth above, and the Purchase
Price set forth above, are the number of Rights and Purchase Price as of August 3,
1999, based on the Preferred Shares as constituted at such date. As provided in
the Rights Agreement, the Purchase Price and the number of one one-hundredths
of a Preferred Share that may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification and adjustment
upon the happening of certain events. 


 


This
Rights Certificate is subject to all of the terms, provisions, and conditions
of the Rights Agreement, which terms, provisions, and conditions are hereby
incorporated herein by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of the rights, limitations
of rights, obligations, duties, and immunities of the Rights Agent, the Company
and the holders of the Rights Certificates. Copies of the Rights Agreement are
on file at the principal executive offices of the Company and the above-mentioned
office of the Rights Agent. 


 


This
Rights Certificate, with or without other Rights Certificates, may be surrendered
at the principal office of the Rights Agent in exchange for another Rights
Certificate or Rights Certificates of like tenor and date evidencing Rights
entitling the holder to purchase the same aggregate number of one one-hundredths
of a Preferred Share as the Rights evidenced by the Rights Certificate or
Rights Certificates surrendered entitled such holder to purchase. 


 





















 


If
this Rights Certificate is exercised in part, the holder will be entitled to receive
upon surrender hereof another Rights Certificate or Rights Certificates for the
number of whole Rights not exercised. 


 


Subject to the provisions of the Rights
Agreement, the Rights evidenced by this Certificate (i) may be redeemed by
the Company at its option at a redemption price of $0.0001 per Right, or (ii) may
be exchanged in whole or in part by the Company, at its option, for the
appropriate number of one one-hundredths of a Preferred Share. 


 


Fractional
Preferred Shares will be issued upon the exercise of any Right or Rights
evidenced hereby.  


 


No holder of this Rights Certificate, as such,
will be entitled to vote or receive dividends or be deemed for any purpose the
holder of any Preferred Shares or of any other securities of the Company that
may at any time be issuable on the exercise hereof, nor will anything contained
in the Rights Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights
evidenced by this Rights Certificate have been exercised as provided in the
Rights Agreement. 


 


This Rights Certificate will not be valid or
obligatory for any purpose until it is countersigned by the Rights Agent. 


 


	
  Dated
  as of

  	
   

  	
  ,

  	
   

  	
   

  	
   

  
	
   

  	
  CUBIST
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Countersigned:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
									



 





















 


[Form of Reverse
Side of Amended Rights Certificate]


 


FORM OF ASSIGNMENT


 


(To
be executed by the registered holder if such


holder
desires to transfer the Rights Certificate.)


 


FOR VALUE RECEIVED                                                                                                                  

hereby sells, assigns, and transfers to                                                                                                               


(Please print name and
address of transferee)


                                                                                                                                                                                                               this
Rights Certificate, together with all right, title, and interest therein, and
does hereby irrevocably constitute and appoint                                                                 as
attorney, to transfer the within Rights Certificate on the books of Cubist Pharmaceuticals, Inc.,
with full power of substitution. 


 


	
  Dated:

  	
   

  	
  ,

  	
   

  	
   

  	
   

  
	
   

  	
  (Signature)

  



 


Medallion
Signature Guaranty:


 


ASSIGNMENT CERTIFICATION


 


The undersigned hereby certifies by checking the
appropriate boxes that:


 


(l)  The
Rights evidenced by this Rights Certificate [  ] are [  ] are not being sold, assigned, and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such term is defined
pursuant to the Rate Agreement); 


 


(2)  After due inquiry and to the best
knowledge of the undersigned, he, she, or it [  ] did [  ] did not acquire the Rights evidenced by this
Rights Certificate from any person who is or was an Acquiring Person or an
Affiliate or Associate of an Acquiring Person. 


 


	
  Dated:

  	
   

  	
  ,

  	
   

  	
   

  	
   

  
	
   

  	
  (Signature)

  



 


NOTICE


 


The signatures to the foregoing Assignment and
Certification must correspond exactly to the name of the registered owner
hereof, as written upon the face of this Rights Certificate, without any change
whatsoever.


 


FORM OF ELECTION TO
PURCHASE


 


(To
be executed if holder desires to


exercise
the Rights Certificate.)


 





















 


To
CUBIST PHARMACEUTICALS, INC.:


 


The
undersigned hereby irrevocably elects to exercise                                 Rights
represented by this Rights Certificate to purchase the Preferred Shares (or
fractions thereof or such other securities of the Company or of any other person)
issuable upon the exercise of such Rights and requests that certificates for
such shares be issued in the name of: 


 


Please
insert social security


or
other identifying number:                                         



 


(Please print name and
address)


 


(If
the above number of Rights is not all of the Rights evidenced by this Rights Certificate,
then a new Rights Certificate for the balance remaining of such Rights will be
registered and returned to the undersigned.) 


 


	
  Dated:

  	
   

  	
  ,

  	
   

  	
   

  	
   

  
	
   

  	
  (Signature)

  



 


Medallion
Signature Guaranty:


 


ELECTION CERTIFICATION


 


The undersigned hereby certifies by checking the
appropriate boxes that:


 


(1)  The Rights evidenced by this Rights
Certificate [ ] are [ ] are not eing sold, assigned, and transferred by or on
behalf of a Person who is or was an Acquiring Person or an Affiliate or
Associate of any Acquiring Person (as such terms are defined pursuant to the
Rate Agreement). 


 


(2) 
After due inquiry and to the best knowledge of the undersigned, he, she, or it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any person who is or was an Acquiring Person or an Affiliate or Associate
of any Acquiring Person. 


 


	
  Dated:

  	
   

  	
  ,

  	
   

  	
   

  	
   

  
	
   

  	
  (Signature)

  



 


NOTICE


 


The signatures in the foregoing Election to
Purchase and Certification must correspond exactly to the name of the
registered owner hereof, as written upon the face of this Rights Certificate,
without any change whatsoever. 


 


In the event the certification set forth above
in the Assignment or the Election to Purchase, as the case may be, is not
completed, the Company and the Rights Agent will deem the beneficial owner of
the Rights evidenced by this 


 





















 


Rights
Certificate to be an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) and such Assignment or Election to Purchase
will not be honored. 


 





















 


EXHIBIT C


 


AMENDED SUMMARY OF
RIGHTS


 


On July 21, 1999, the Board of Directors of
Cubist Pharmaceuticals, Inc. (the “COMPANY”) declared a dividend of one
fractional preferred share purchase right (a “RIGHT”) for each outstanding
share of common stock, par value $0.001 per share (the “COMMON SHARES”), of the
Company. The dividend was payable on August 3, 1999 (the “RECORD DATE”) to
the stockholders of record on that date. Except as described below, each Right,
when exercisable, entitles the registered holder to purchase from the Company
one one-hundredth of a share of Series A Junior Participating Preferred
Stock of the Company, par value $0.001 per share (the “PREFERRED SHARES”), at a
price of $490.00 per one one-hundredth of a Preferred Share (the “PURCHASE
PRICE”), subject to adjustment or substitution of other securities of the
Company in place of the Preferred Shares. The description and terms of the Rights
are set forth in a Rights Agreement (the “RIGHTS AGREEMENT”) between the
Company and Fleet National Bank f/k/a BankBoston, N.A., as Rights Agent (the “RIGHTS
AGENT”).  


 


Initially, the Rights will be attached to all
certificates representing Common Shares then outstanding, and no separate
Rights certificates will be distributed. Until the earlier to occur of (i) 10
business days following a public announcement that a person or group of
affiliated or associated persons (an “ACQUIRING PERSON”) have acquired
beneficial ownership of 15% or more of the outstanding Common Shares (the date
of such an announcement being a “SHARES ACQUISITION DATE”), or (ii) 10
business days (or such later date as may be determined by action of the Board
of Directors prior to such time as any Person becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a
tender offer or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 15% or more of such outstanding
Common Shares (in either case, (i) or (ii), the “DISTRIBUTION DATE”), the
Rights will be evidenced, with respect to any of the Common Share certificates
outstanding as of the Record Date, by such Common Share certificates together with
a copy of this Summary of Rights. 


 


The Rights Agreement provides that, until the
Distribution Date, the Rights will be transferred with and only with the Common
Shares. Until the Distribution Date (or earlier redemption or expiration of the
Rights), new Common Share certificates issued after the Record Date upon
transfer or new issuance of Common Shares will contain a notation incorporating
the Rights Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for transfer of any
certificates for Common Shares outstanding as of the Record Date, even without
such notation or a copy of this Summary of Rights being attached thereto, will
also constitute the transfer of the Rights associated with the Common Shares
represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights (“RIGHTS
CERTIFICATES”) will be mailed to holders of record of the Common Shares as of
the close of business on the Distribution Date, and the separate Rights
Certificates alone will evidence the Rights. 


 


The Rights are not exercisable until the
Distribution Date. The Rights will expire on August 3, 2009 (the “FINAL
EXPIRATION DATE”), unless the Rights are earlier redeemed by the Company, as
described below. 


 


The Purchase Price payable, and the number of
Preferred Shares or other securities or property issuable, upon exercise of the
Rights are subject to 


 





















 


adjustment
from time to time to prevent dilution (i) in the event of a stock dividend
on, or a subdivision, combination or reclassification of, the Preferred Shares,
(ii) upon the grant to holders of the Preferred Shares of certain rights or
warrants to subscribe for or purchase Preferred Shares at a price, or securities
convertible into Preferred Shares with a conversion price, less than the then
current market price of the Preferred Shares or (iii) upon the distribution
to holders of the Preferred Shares of evidences of indebtedness or assets
(excluding regular periodic cash dividends paid out of earnings or retained
earnings or dividends payable in Preferred Shares) or of subscription rights or
warrants (other than those referred to above). 


 


The number of outstanding Rights and the number
of one one-hundredths of a Preferred Share issuable upon exercise of each Right
are also subject to adjustment in the event of a stock split of the Common
Shares or a stock dividend on the Common Shares payable in Common Shares or
subdivisions, consolidations or combinations of the Common Shares occurring, in
any such case, prior to the Distribution Date. 


 


Preferred Shares purchasable upon exercise of
the Rights will not be redeemable. Each Preferred Share will be entitled to a
minimum preferential quarterly dividend payment of $1 per share but will be
entitled to an aggregate dividend of 100 times the dividend declared per Common
Share. In the event of liquidation, the holders of the Preferred Shares will be
entitled to a minimum preferential liquidation payment of $100 per share but
will be entitled to an aggregate payment of 100 times the payment made per
Common Share. Each Preferred Share will have 100 votes, voting together with
the Common Shares. Finally, in the event of any merger, consolidation or other
transaction in which Common Shares are exchanged, each Preferred Share will be
entitled to receive 100 times the amount received per Common Share. These
rights are protected by customary anti-dilution provisions. 


 


Because of the nature of the Preferred Shares’
dividend, liquidation and voting rights, the value of the one one-hundredth
interest in a Preferred Share purchasable upon exercise of each Right should
approximate the value of one Common Share. 


 


If, after the first date of public announcement
by the Company or an Acquiring Person that an Acquiring Person has become such,
the Company is involved in a merger or other business combination transaction
in which the Common Shares are exchanged or changed, or 50% or more of the
Company’s consolidated assets or earning power are sold (in one transaction or
a series of transactions), proper provision will be made so that each holder of
a Right (other than an Acquiring Person) will thereafter have the right to
receive, upon the exercise thereof at the then current exercise price of the
Right, that number of shares of common stock of the acquiring company (or, in
the event there is more than one acquiring company, the acquiring company
receiving the greatest portion of the assets or earning power transferred)
which at the time of such transaction would have a market value of two times
the exercise price of the Right. 


 


If any person becomes an Acquiring Person, each
holder of a Right will thereafter have the right to receive upon exercise that
number of Common Shares having a market value of two times the exercise price
of the Right. UPON OCCURRENCE OF ANY OF THE EVENTS DESCRIBED IN THE IMMEDIATELY
PRECEDING SENTENCE, ANY RIGHTS THAT ARE, OR (UNDER CERTAIN CIRCUMSTANCES
SPECIFIED IN THE RIGHTS AGREEMENT) WERE, BENEFICIALLY OWNED BY ANY ACQUIRING
PERSON SHALL IMMEDIATELY BECOME NULL AND VOID. 


 





















 


At any time after the occurrence of any such
event and prior to the acquisition by such person or group of 50% or more of
the outstanding Common Shares, the Board of Directors may exchange the Rights
(other than Rights owned by such person or group which have become void), in
whole or in part, at an exchange ratio of one Common Share, or one
one-hundredth of a Preferred Share (or of a share of a class or series of the
Company’s preferred stock having equivalent rights, preferences and
privileges), per Right (subject to adjustment). 


 


With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional Preferred
Shares (other than fractions which are integral multiples of one one-hundredth
of a Preferred Share, which may, at the election of the Company, be evidenced
by depositary receipts) will be issued and in lieu thereof, an adjustment in
cash will be made based on the market price of the Preferred Shares on the last
trading day prior to the date of exercise. 


 


At any time prior to the earlier of (i) the
tenth day after a Shares Acquisition Date, or (ii) the expiration of the
Rights, the Board of Directors may redeem the Rights in whole, but not in part,
at a price of $0.0001 per Right (the “REDEMPTION PRICE”). The redemption of the
Rights may be made effective at such time on such basis and with such
conditions as the Board of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price. 


 


Other than those provisions relating to the
principal economic terms of the Rights, any of the provisions of the Rights
Agreement may be amended by the Board of Directors of the Company prior to the
Distribution Date. After the Distribution Date, the provisions of the Rights Agreement
may be amended by the Board in order to cure any ambiguity, to make changes
that do not adversely affect the interests of holders of Rights (excluding the
interests of any Acquiring Person), or to shorten or lengthen any time period
under the Rights Agreement; PROVIDED, HOWEVER, that no amendment to adjust the
time period governing redemption shall be made at such time as the Rights are
not redeemable. 


 


Until a Right is exercised, the holder thereof,
as such, will have no rights as a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends.


 


A copy of the Rights Agreement has been filed
with the Securities and Exchange Commission as an Exhibit to a Current
Report on Form 8-K dated July 30, 1999. A First Amendment to Rights
Agreement has been filed with the Securities and Exchange Commission as an Exhibit to
a Registration Statement on Form 8-A/A dated March 9, 2000. A copy of
the Rights Agreement is available free of charge from the Company. This summary
description of the Rights does not purport to be complete and is qualified in
its entirety by reference to the Rights Agreement, which is hereby incorporated
herein by reference.