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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-A/A
(FIRST AMENDMENT)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
CUBIST PHARMACEUTICALS, INC.
(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)
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If this form relates to the registration of a If this form relates to the registration of a
class of securities pursuant to Section class of securities pursuant to Section
12(b) of the Exchange Act and is 12(g) of the Exchange Act and i
effective pursuant to General Instruction effective pursuant to General Instruction
A.(c), please check the following box. |_| A.(d), please check the following box. |X|
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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
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. AMENDMENT TO 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 was payable on
August 3, 1999 (the "RECORD DATE") to the stockholders of record on that date.
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").
On March 3, 2000 the Board of Directors approved an amendment to the
Rights Agreement raising the Purchase Price from $20 to $490. The Company and
the Rights Agent executed and delivered the First Amendment to Rights
Agreement as of March 3, 2000. Except for conforming amendments to the Rights
Certificate and Summary of Rights, no other amendments have been made to the
Rights Agreement. As a result of this amendment, 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 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.
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
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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
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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
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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.
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 since the Rights may be redeemed by the Company at $0.0001 per Right
prior to the time that a person or group has acquired beneficial ownership of
15% or more of the Common Shares.
The form of Rights Agreement between the Company and the Rights Agent
specifying the terms of the Rights is attached to the Company's Current
Report on Form 8-K filed on July 30, 1999. The Rights Agreement 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.
4.1 Rights Agreement, dated as of July 21, 1999 between the Company and
Fleet National Bank f/k/a 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)
4.2 First Amendment, dated as of March 3, 2000, to the Rights
Agreement, dated as of July 21, 1999 between the Company and Fleet National
Bank f/k/a BankBoston, N.A., as Rights Agent
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4.4 Form of Amended Rights Certificate, included as Exhibit B to item
4.2 above
99.1 Amended Summary of Rights, included as Exhibit C to item 4.2 above
99.2 Press Release dated March 7, 2000
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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
------------------------------
Thomas A. Shea
Vice President, Finance &
Administration, Treasurer and
Chief Financial Officer
Dated: March 9, 2000
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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.
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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.
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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/ SCOTT M. ROCKLAGE
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Name: Scott M. Rocklage
Title: Chairman of the Board of Directors,
Chief Executive Officer and President
FLEET NATIONAL BANK
By: /s/ CHRISTOPHER RICHARD
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Name: Christopher Richard
Title: Director
ATTEST:
/s/ THOMAS A. SHEA
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Name: Thomas A. Shea
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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-
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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
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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:
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[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:
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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)
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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.
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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:_____________________
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(Please print name and address)
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(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:
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ELECTION CERTIFICATION
The undersigned hereby certifies by checking the appropriate boxes that:
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(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)
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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.
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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
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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
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-3-
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.
<PAGE>
EXHIBIT 99.2
CUBIST PHARMACEUTICALS, INC. AMENDS STOCK PURCHASE RIGHTS PLAN
CAMBRIDGE, MASS., MARCH 7 -- Cubist Pharmaceuticals, Inc. (Nasdaq:
CBST) announced that its Board of Directors amended its rights plan to entitle
each rights holder to purchase $490.00 worth of newly issued shares of common
stock of Cubist Pharmaceuticals at a price equal to 50% of the current market
price. On July 21, 1999 the Board of Directors declared a special dividend
distribution of a preferred share purchase right for each outstanding share of
common stock of Cubist Pharmaceuticals, Inc. The dividend was distributed on
August 3, 1999 to stockholders of record as of the close of business on that
date.
The rights will become exercisable only if a person or group (i)
acquires 15 percent or more of Cubist Pharmaceutical's common stock, or (ii)
announces a tender offer that would result in ownership of 15 percent or more of
the common stock. Each right would entitle a stockholder to buy one
one-hundredth of a share of preferred stock. Once a person or group has acquired
15 percent or more of the outstanding common stock of Cubist Pharmaceuticals,
each right may entitle its holder (other than the 15 percent person or group) to
purchase $490.00 worth of newly issued shares of common stock of Cubist
Pharmaceuticals at a price equal to 50 percent of the current market price.
The rights are redeemable at the option of the Board of Directors up
until ten days after public announcement that any person or group has acquired
15 percent or more of Cubist Pharmaceuticals' common stock. The redemption price
is $0.0001 per right.
The rights will expire on August 3, 2009, unless redeemed prior to
that date. Distribution of the rights is not taxable to stockholders. A summary
of the rights plan was mailed to Cubist Pharmaceutical's stockholders at the
time of distribution.
Cubist Pharmaceuticals, Inc. is a specialty pharmaceutical company
focused on the research, development and commercialization of novel
antimicrobial drugs to combat serious and life threatening bacterial and fungi
infections. Cubist is evaluating the efficacy and safety of daptomycin in the
EDGE(TM) (Evaluation of Daptomycin in Gram-positive Entities) clinical trial
program. Cubist is engaged in strategic partnerships with Novartis Pharma AG,
Merck & Co., Inc. and Bristol-Myers Squibb for the discovery and development of
novel antiinfective products, and has formed biotechnology alliances with
Helios, Inc., and Neurogen Corporation.
CUBIST SAFEHARBOR STATEMENT
---------------------------
STATEMENTS CONTAINED HEREIN THAT ARE NOT HISTORICAL FACTS MAY BE
FORWARD-LOOKING STATEMENTS (WITHIN THE MEANING OF SECTION 27A OF THE SECURITIES
ACT OF 1933 AND SECTION 21E OF THE SECURITIES EXCHANGE ACT OF 1934) THAT ARE
SUBJECT TO A VARIETY OF RISKS AND UNCERTAINTIES. THERE ARE A NUMBER OF IMPORTANT
FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE
PROJECTED OR SUGGESTED IN ANY FORWARD-LOOKING STATEMENTS MADE BY THE COMPANY.
THESE FACTORS INCLUDE, BUT ARE NOT LIMITED TO: (I) THE COMPANY'S ABILITY TO
SUCCESSFULLY COMPLETE PRODUCT RESEARCH AND DEVELOPMENT, INCLUDING PRE-CLINICAL
AND CLINICAL STUDIES AND COMMERCIALIZATION; (II) THE COMPANY'S ABILITY TO OBTAIN
REQUIRED GOVERNMENTAL APPROVALS; (III) THE COMPANY'S ABILITY TO
<PAGE>
ATTRACT AND/OR MAINTAIN MANUFACTURING, SALES, DISTRIBUTION AND MARKETING
PARTNERS; AND (IV) THE COMPANY'S ABILITY TO DEVELOP AND COMMERCIALIZE ITS
PRODUCTS BEFORE ITS COMPETITORS. ADDITIONAL FACTORS THAT WOULD CAUSE ACTUAL
RESULTS TO DIFFER MATERIALLY FROM THOSE PROJECTED OR SUGGESTED IN ANY
FORWARD-LOOKING STATEMENTS IS CONTAINED IN THE COMPANY'S FILINGS WITH THE
SECURITIES AND EXCHANGE COMMISSION, INCLUDING THOSE FACTORS DISCUSSED UNDER THE
CAPTION "RISK FACTORS" IN THE COMPANY'S RESALE REGISTRATION STATEMENT ON FORM
S-3 (REG. NO. 333-96365) FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
FEBRUARY 8, 2000.
For additional information, visit the Company's Internet
web site at http://www.cubist.com or http://www.noonanrusso.com
