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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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CUBIST PHARMACEUTICALS, INC.
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(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 22-3192085
(State of Incorporation (I.R.S. Employer
or Organization) Identification no.)
24 EMILY STREET, CAMBRIDGE, MA 02139
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of
pursuant to Section 12(b) of the securities pursuant to Section
Exchange Act and is effective effective 12(g) of the Exchange Act and is
pursuant to General Instruction A.(c), pursuant to General Instruction
please check the following box. |_| A.(d), please check the following
box. |X|
SECURITIES ACT REGISTRATION STATEMENT FILE NUMBER TO WHICH THIS FORM RELATES:
_________________
(If applicable)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of Each Class Name of Each Exchange on Which
To Be So Registered Each Class Is To Be Registered
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NONE NONE
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Preferred Share Purchase Rights
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
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 is payable
on April 30, 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 $20 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 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
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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
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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.
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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.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Company's Board of Directors. The Rights should not
interfere with any merger or other business combination approved by the Board of
Directors in light of the ability of the Board of Directors to redeem the Rights
or amend the Rights Agreement as summarized above.
The form of Rights Agreement between the Company and the Rights Agent
specifying the terms of the Rights, which includes as Exhibit B the form of
Rights Certificate, is attached to the Company's Current Report on Form 8-K
filed on July 30, 1999. The Rights Agreement, including all exhibits, is
hereby incorporated herein by reference. The foregoing description of the Rights
does not purport to be complete and is qualified in its entirety by reference to
the Rights Agreement.
ITEM 2. EXHIBITS.
1. Rights Agreement, dated as of July 21, 1999 between the Company and
BankBoston, N.A., as Rights Agent (incorporated herein by reference to Exhibit
99.1 to the Company's Report on Form 8-K filed on July 30, 1999) (File No.
000-21379).
2. Press Release, dated July 23, 1999 (incorporated herein by
reference to Exhibit 99.2 to the Company's Report on Form 8-K filed on
July 30, 1999) (File No. 000-21379).
3. Form of Certificate of Designations (incorporated herein by
reference to Exhibit A to Exhibit 99.1 to the Company's Report on Form 8-K filed
on July 30, 1999) (File No. 000-21379).
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4. Form of Rights Certificate (incorporated herein by reference to
Exhibit B to Exhibit 99.1 to the Company's Report on Form 8-K filed on July 30,
1999) (File No. 000-21379).
5. Summary of Rights (incorporated herein by reference to Exhibit C to
Exhibit 99.1 to the Company's report on Form 8-K filed on July 30, 1999) (File
No. 000-21379).
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned hereunto duly authorized.
CUBIST PHARMACUETICALS, INC.
By: /s/ Thomas A. Shea
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Thomas A. Shea
Vice President Administration &
Finance, Chief Financial Officer
and Treasurer
Dated: July 30, 1999
