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As filed with the Securities and Exchange Commission on April 23, 1997
File No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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CUBIST PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 22-3192085
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
24 Emily Street, Cambridge, MA 02139
(Address of Principal Executive Offices) (Zip Code)
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CUBIST PHARMACEUTICALS, INC.
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
(Full Title of the Plan)
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Scott M. Rocklage, Ph.D.
President and Chief Executive Officer
Cubist Pharmaceuticals, Inc.
24 Emily Street
Cambridge, Massachusetts 02139
(Name and address of Agent for Service)
(617) 576-1999
Telephone Number, Including Area Code, of Agent for Service
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Copies to:
Justin P. Morreale, Esq.
Julio E. Vega, Esq.
Bingham, Dana & Gould LLP
150 Federal Street
Boston, MA 02110-1726
(617) 951-8000
CALCULATION OF REGISTRATION FEE
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Title Of Each Amount Proposed Proposed Amount Of
Class Of To Be Maximum Maximum Registration
Securities Registered Offering Aggregate Fee
To Be Registered Price Offering
Per Share Price (1)
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Common Stock,
$.001 par value 1,500,000 N/A $8,417,652.91 2,550.80
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(1) The proposed maximum offering price has been estimated pursuant to
Rule 457(h) solely for the purpose of calculating the registration fee.
It is not known how many shares will be purchased under the Plan or at
what price such shares will be purchased. The estimate of the proposed
maximum aggregate offering price has been calculated based on (i) the
offering of 703,801 shares, being the portion of the shares of Common
Stock registered hereby subject to outstanding options under the Plan, at
a weighted average exercise price of $2.91 per share, and (ii) the
offering of 796,199 shares, being the aggregate number of shares of
Common Stock available for issuance upon exercise of stock options to be
granted under the Plan, at an exercise price of $8.00 per share, which is
the average of the high and low prices of the Registrant's Common Stock
as listed on the National Association of Securities Dealers Automated
Quotation ("Nasdaq") National Market System on April 21, 1996.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Cubist Pharmaceuticals, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "SEC") are hereby
incorporated by reference in this Registration Statement: (1) the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1996; (2) all
reports previously filed by the Registrant pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the
end of the Registrant's 1996 fiscal year; and (3) the description of the Common
Stock contained in the Registrant's registration statement on Form 8-A filed
with the SEC under Section 12(g) of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicate that all securities offered hereby have
been sold or which deregister all of such securities then remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts or Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify its officers and directors and certain other persons to
the extent and under the circumstances set forth therein.
The Restated Certificate of Incorporation and the Amended and Restated
By-Laws of the Company, copies of which are filed herein as Exhibits 4.1 and
4.2, provide for advancement of expenses and indemnification of officers and
directors of the Registrant and certain other persons against liabilities and
expenses incurred by any of them in certain stated proceedings and under certain
stated conditions to the fullest extent permissible under Delaware law.
The Company intends to maintain insurance for the benefit of its directors
and officers insuring such persons against certain liabilities, including
liabilities under the securities laws.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
The following exhibits are filed as part of this Registration Statement:
4.1 Restated Certificate of Incorporation of the Registrant. Incorporated
by reference to Exhibit 3.3 to the Registrant's Registration Statement
Form S-1 (File No. 333-6795).
4.2 Amended and Restated By-Laws of the Registrant. Incorporated by
reference to Exhibit 3.4 to the Registrant's Registration Statement on
Form S-1 (File No. 333-6795).
5 Opinion and Consent of Bingham, Dana & Gould LLP with respect to the
legality of the shares being registered.
23.1 Consent of Bingham, Dana & Gould LLP (included in Exhibit 5).
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included in signature page to Registration
Statement).
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change
to such information in this Registration Statement;
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, as amended (the "Securities Act"), each such post-effective
amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering;
(4) That, for purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof; and
(5) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
2
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cambridge, Commonwealth of Massachusetts, on this
23rd day of April, 1997.
CUBIST PHARMACEUTICALS, INC.
By: /s/ Scott M. Rocklage, Ph.D.
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President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Scott M. Rocklage
and Thomas A. Shea and each of them severally, acting alone and without the
other, his/her true and lawful attorney-in-fact with the authority to execute in
the name of each such person, and to file with the Securities and Exchange
Commission, together with any exhibits thereto and other documents therewith,
any and all amendments (including without limitation post-effective amendments)
to this Registration Statement on Form S-8 necessary or advisable to enable the
Registrant to comply with the Securities Act of 1933, as amended, and any rules,
regulations, and requirements of the Securities and Exchange Commission in
respect thereof, which amendments may make such other changes in the
Registration Statement as the aforesaid attorney-in-fact executing the same
deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
/s/ Scott M. Rocklage President, Chief Executive April 22, 1997
----------------- Officer and Director
Scott M. Rocklage (Principal Executive Officer)
/s/ Thomas A. Shea Treasurer April 22, 1997
------------------ (Principal Financial
Thomas A. Shea and Accounting Officer)
/s/ John K. Clarke Chairman of the Board April 22, 1997
----------------- of Directors
John K. Clarke
/s/ Barry Bloom Director April 22, 1997
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Barry Bloom
/s/ George Conrades Director April 22, 1997
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George Conrades
3
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/s/ Ellen M. Feeney Director April 22, 1997
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Ellen M. Feeney
Director April 22, 1997
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Terrance G. McGuire
/s/ Julius Rebek, Jr. Director April 22, 1997
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Julius Rebek, Jr.
Director April 22, 1997
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Paul R. Schimmel
4
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INDEX TO EXHIBITS
Exhibit Sequential
Number Description Page No.
4.1 Restated Certificate of Incorporation of
the Registrant. Incorporated by reference
to Exhibit 3.3 to the Registrant's
Registration Statement Form S-1
(File No. 333-6795). --
4.2 Amended and Restated By-Laws of the
Registrant. Incorporated by reference
to Exhibit 3.4 to the Registrant's
Registration Statement on Form S-1 (File
No. 333-6795). --
5 Opinion and Consent of Bingham, Dana &
Gould LLP with respect to the legality of
the shares being registered. 7
23.1 Consent of Bingham, Dana & Gould LLP
(included in Exhibit 5). 8
23.2 Consent of Coopers & Lybrand L.L.P. 9
24 Power of Attorney (included in signature
page to Registration Statement). 4
5
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Exhibit 5
[LETTERHEAD OF BINGHAM, DANA & GOULD LLP]
April 23, 1997
Cubist Pharmaceuticals, Inc.
24 Emily Street
Cambridge, Massachusetts 02139
Dear Sir or Madam:
We have acted as counsel for Cubist Pharmaceuticals, Inc., a Delaware
corporation (the "Company"), in connection with the Company's Registration
Statement on Form S-8 to be filed with the Securities and Exchange Common on
April 23, 1997 (the "Registration Statement").
The Registration Statement covers the registration of 1,500,000 shares of
common stock, $.001 par value per share, of the Company (the "Shares"), which
are to be issued by the Company upon exercise of employee stock options to be
issued pursuant to the Cubist Pharmaceuticals, Inc., Amended and Restated 1993
Stock Option Plan (the "Plan").
We have reviewed the corporate proceedings of the Company with respect to
the authorization of the Plan and the issuance of the Shares thereunder. We
have also examined and relied upon originals or copies, certified or otherwise
identified or authenticated to our satisfaction, of such agreements,
instruments, corporate records, certificates, and other documents as we have
deemed necessary or appropriate as a basis for the opinions hereinafter
expressed. In our examination, we have assumed the genuineness of all
signatures, the conformity to the originals of all documents reviewed by us as
copies, the authenticity and completeness of all original documents reviewed by
us in original or copy form, and the legal competence of each individual
executing any document.
We further assume that all Shares issued upon exercise of options granted
or to be granted pursuant to the Plan will be issued in accordance with the
terms of such Plan and that the purchase price of the Shares will be greater
than or equal to the par value per share of the Shares.
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April 23, 1997
Page 2
Subject to the limitations set forth below, we have made such examination
of law as we have deemed necessary for the purposes of this opinion. This
opinion is limited solely to the Delaware General Corporation Law as applied by
courts located in Delaware.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued and delivered upon the exercise of options duly granted
pursuant to the Plan and against the payment of the purchase price therefor,
will be validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bingham, Dana & Gould LLP
BINGHAM, DANA & GOULD LLP
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 to register 1,500,000 shares of Cubist Pharmaceuticals,
Inc.'s common stock of our report dated February 12, 1997, on our audit of
the financial statements of Cubist Pharmaceuticals, Inc.
Coopers & Lybrand L.L.P.
Boston, Massachusetts
April 21, 1997
