Exhibit 4.4


 


THIRD AMENDMENT TO RIGHTS AGREEMENT


 


This
THIRD AMENDMENT TO RIGHTS AGREEMENT (this “AMENDMENT”), dated as of August 2,
2005, is by and between Cubist Pharmaceuticals, Inc., a Delaware
corporation (the “Company”), and EquiServe Trust Company, N.A. (f/k/a 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, as amended by the First Amendment to Rights Agreement, dated as of March 3,
2000, by and between the Company and the Rights Agent and the Amendment to
Rights Agreement, dated as of March 20, 2002, by and between the Company
and the Rights Agent (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 (i) by redesignating the existing
text of Sections 29-34 as Sections 30-35 and (ii) by adding the following
paragraphs as subsections (a) and (b) to a new Section 29:


 


“(a) It
is understood that the TIDE Committee (as described below) of the Company’s
Board of Directors shall review and evaluate this Agreement in order to
consider whether the maintenance of this Agreement continues to be in the best
interests of the Company, its stockholders and other relevant constituencies of
the Company at least once every three years, or sooner than that if (i) any
Person shall have made a proposal to the Company or its stockholders, or taken
any other action that, if effective, could cause such Person to become an
Acquiring Person hereunder, and (ii) if a majority of the members of the
TIDE Committee shall deem such review and evaluation appropriate after giving
due regard to all relevant circumstances. 
Following each such review, the TIDE Committee shall communicate its
conclusions to the full Board of Directors of the Company, including any
recommendation in light thereof as to whether this Agreement should be 


 





















 


modified
or the Rights should be redeemed.  The
TIDE Committee shall be comprised of members of the Board of Directors of the
Company who are not officers, employees or Affiliates of the Company and shall
be the Corporate Governance and Nominating Committee (or any successor
committee) of the Board of Directors of the Company as long as the members of
such committee meet such requirements.


 


(b) The
TIDE Committee and the Board of Directors of the Company, when considering
whether this Agreement should be modified or the Rights should be redeemed,
shall have the power to set their own agenda and to retain at the expense of
the Company their choice of legal counsel, investment bankers and other
advisors. The TIDE Committee and the Board of Directors of the Company, when
considering whether this Agreement should be modified or the Rights should be
redeemed, shall have the authority to review all information of the Company and
to consider any and all factors they deem relevant to an evaluation of whether
this Agreement should be modified or the Rights should be redeemed.”


 


2.
The Rights Agreement, as amended by this Amendment, shall remain in full force
and effect in accordance with its terms.


 


3.
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.


 


4.
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.


 


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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/
  Christopher D.T. Guiffre

  	
   

  
	
   

  	
  Name: Christopher D.T.
  Guiffre

  
	
   

  	
  Title: SVP, General
  Counsel and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EQUISERVE
  TRUST COMPANY, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Dennis Moccia

  	
   

  
	
   

  	
  Name: Dennis Moccia

  
	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  ATTEST:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   /s/ Jennifer K.
  Marten

  	
   

  	
   

  
	
  Name: Jennifer K. Marten