<PAGE>
As filed with the Securities and Exchange Commission on January 9, 1998
Registration No. 333-33883
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
POST-EFFECTIVE AMENDMENT NO. 1
to FORM S-1
on
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------
CUBIST PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 2830 22-3192085
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Classification Code Numbers) incorporation or organization) identification No.)
</TABLE>
24 Emily Street
Cambridge, MA 02139
(617) 576-1999
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------
Scott M. Rocklage, Ph.D.
President and Chief Executive Officer
Cubist Pharmaceuticals, Inc.
24 Emily Street
Cambridge, MA 02139
(617) 576-1999
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
---------------
with copies to:
Justin P. Morreale, Esq.
Julio E. Vega, Esq.
Bingham Dana LLP
150 Federal Street
Boston, MA 02110
(617) 951-8000
---------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to Section 8(a), may determine.
<PAGE>
PROSPECTUS
1,265,307 Shares
CUBIST PHARMACEUTICALS, INC.
Common Stock
All of the 1,265,307 shares of Common Stock offered hereby are being
sold by certain stockholders (the "Selling Stockholders") of Cubist
Pharmaceuticals, Inc. ("Cubist" or the "Company"). See "Principal and
Selling Stockholders." The Company will not receive any of the proceeds from
the sale of shares by the Selling Stockholders. The Company's Common Stock is
listed on the Nasdaq National Market under the symbol "CBST". On January 7,
1998, the closing sale price of the Common Stock, as reported on the Nasdaq
National Market, was $5.00 per share.
The Common Stock offered hereby involves a high degree of risk.
See "Risk Factors," beginning on page 3.
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
---------------
The Company has been advised by the Selling Stockholders that all or a
portion of the shares of Common Stock offered hereby may be sold by the
Selling Stockholders from time to time in one or a combination of the
following transactions: (a) transactions (which may involve crosses or block
transactions) on the National Market System of the Nasdaq Stock Market, or
otherwise, at fixed prices, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at varying prices
determined at the time of sale; or (b) privately negotiated transactions at
negotiated prices. The Selling Stockholders may effect such transactions by
selling such shares directly to purchasers or by selling such shares to or
through brokers or dealers and such brokers or dealers may receive
compensation in the form of discounts, concessions or commissions from the
Selling Stockholders or the purchasers of such shares for whom such brokers
or dealers may act as agent, or to whom they sell as principal, or both. See
"Plan of Distribution."
No dealer, salesperson or other person has been authorized to give any
information or to make any representations not contained in this Prospectus
or any Prospectus Supplement, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. Neither this Prospectus nor any Prospectus Supplement constitutes
an offer to sell or a solicitation of an offer to buy any of the securities
offered hereby in any jurisdiction to any person to whom it is unlawful to
make such an offer in such jurisdiction. Neither the delivery of this
Prospectus or any Prospectus Supplement nor any sale made thereunder shall,
under any circumstances, create any implication that there has been no change
in the affairs of the Company since the date hereof or thereof.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------
Underwriting Discounts Proceeds to Selling
Price to Public and Commissions Stockholder
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Share (l) (1)(2) (1)(2)
- -----------------------------------------------------------------------------------------------
Total (1) (1)(2) (1)(2)
- -----------------------------------------------------------------------------------------------
</TABLE>
(1) The Selling Stockholders may from time to time effect the sale of the
Shares at prices and at terms then prevailing or at prices related to the
then-current market price, or in negotiated transactions. Under the
securities laws of certain states, the Shares may be sold in such states
only through registered or licensed brokers or dealers. See "Plan of
Distribution" and "Selling Stockholders."
<PAGE>
(2) The Company has agreed to prepare and file this Prospectus and the related
Registration Statement and supplements and amendments thereto required by
the Securities Act with the Securities and Exchange Commission, and to
deliver copies of the Prospectus to the Selling Stockholders. The
expenses incurred in connection with the same, estimated at $44,490, will
be borne by the Company. The Selling Stockholders and any broker-dealers,
agents or underwriters who participate in a sale of the Shares may be
deemed "underwriters" within the meaning of the Securities Act, and any
commissions paid or discounts allowed to, and any profits received on
Shares by, any of them may be deemed to be underwriting discounts or
resale of the commissions under the Securities Act. See "Plan of
Distribution." The Company will not be responsible for any discounts,
concessions, commissions or other compensation due to any broker or dealer
in connection with the sale of any of the shares offered hereby, which
expenses will be borne by the Selling Stockholders.
The date of this Prospectus is January 9, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files periodic reports and other information with the Securities
and Exchange Commission (the "Commission"). Such reports, proxy statements
and other information concerning the Company may be inspected and copies may
be obtained (at prescribed rates) at public reference facilities maintained
by the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the regional offices of the Commission located at Seven
World Trade Center, 13th Floor, New York, New York 10048 and at Northwest
Atrium Center, 500 W. Madison Street, Suite 1400, Chicago, Illinois
60661-2511. In addition, electronically filed documents, including reports,
proxy and information statements and other information regarding the Company,
can be obtained from the Commission's Web site at http://www.sec.gov. The
Company's Common Stock is listed on the Nasdaq National Market, and reports,
proxy statements and other information concerning the Company can also be
inspected the offices of the National Association of Securities Dealers, Inc.
at 1735 K Street, Washington, D.C. 20006.
The Company has filed a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act with the Commission with
respect to the Common Stock being offered pursuant to this Prospectus. As
permitted by the rules and regulations of the Commission, this Prospectus
omits certain of the information contained in the Registration Statement.
For further information with respect to the Company and the Common Stock
being offered pursuant to this Prospectus, reference is hereby made to such
Registration Statement, including the exhibits filed as part thereof.
Statements contained in this Prospectus concerning the provisions of certain
documents filed with, or incorporated by reference in, the Registration
Statement are not necessarily complete, each such statement being qualified
in all respects by such reference. Copies of all or any part of the
Registration Statement, including the documents incorporated by reference
therein or exhibits thereto, may be obtained upon payment of the prescribed
rates at the offices of the Commission set forth above.
Upon request, the Company will provide without charge to each person to
whom a copy of this Prospectus has been delivered a copy of any information
that was incorporated by reference in the Prospectus (other than exhibits to
documents, unless such exhibits are specifically incorporated by reference
into the Prospectus). The Company will also provide upon specific request,
without charge to each person to whom a copy of this Prospectus has been
delivered, a copy of all documents filed from time to time by the Company
with the Commission pursuant to the Exchange Act. Requests for such copies
should be directed to Thomas A. Shea, Chief Financial Officer, Cubist
Pharmaceuticals, Inc. 24 Emily Street, Cambridge, MA 02141. Telephone
requests may be directed to Mr. Shea at (617) 576-4155.
2
<PAGE>
RISK FACTORS
Prospective investors in the shares offered hereby should carefully
consider the following risk factors, in addition to the other information
appearing in this Prospectus. This Prospectus contains and incorporates by
reference forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities and Exchange Act of
1934, including but not limited to (i) statements about the adequacy of the
Company's cash, cash equivalents, other capital resources, interest income,
other income and future revenues due under the Company's collaborative
agreements to fund its operating expenses and capital requirements as
currently planned through mid-1998, (ii) statements about the amount of
capital expenditures that the Company expects to incur in 1998, (iii)
statements about the Company's plans to begin clinical trials of daptomycin
in late 1998, and (iv) certain statements identified or qualified by words
such as "likely", "will", "suggests", "may", "would", "could", "should",
"expects", "anticipates", "estimates", "plans", "projects", "believes", or
similar expressions (and variants of such words or expressions). Investors
are cautioned that forward-looking statements are inherently uncertain.
Actual performance and results of operations may differ materially from those
projected or suggested in the forward looking statements due to certain risks
and uncertainties including, but not limited to, the following risks and
uncertainties and the risks and uncertainties described or discussed in the
section "Risk Factors" in the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996. The forward-looking statements
contained herein represent the Company's judgment as of the date of this
Prospectus, and the Company cautions readers not to place undue reliance on
such statements.
Early Stage of Product Development; No Assurance of Successful
Commercialization. Since inception, the Company has generated no revenue
from product sales. The Company's research and development programs are at an
early stage, and the Company does not expect that any drugs resulting from
its research and development efforts, or from the joint efforts of the
Company and its collaborative partners, will be commercially available for a
significant number of years, if at all. The Company has one drug candidate in
preclinical development and is currently in the process of optimizing lead
candidates to select other drug candidates for preclinical development. To
date, the Company has not, independently or with its collaborative partners,
completed the optimization of any lead candidates. Any drug candidates
developed by the Company will require significant additional research and
development efforts, including extensive preclinical (animal and in vitro
data) and clinical testing and regulatory approval, prior to commercial sale.
Only one of the Company's drug candidates has advanced to any phase of
preclinical or clinical trials. There can be no assurance that the Company's
approach to drug discovery, acting independently or with the efforts of any
collaborative partner of the Company, will be effective or will result in the
development of any drug. The Company's drug candidates will be subject to the
risks of failure inherent in the development of pharmaceutical products based
on new technologies. These risks include the possibilities that any or all of
the Company's drug candidates will be found to be unsafe, ineffective or
toxic or otherwise fail to meet applicable regulatory standards or receive
necessary regulatory clearances; that these drug candidates, if safe and
effective, will be difficult to develop into commercially viable drugs or to
manufacture on a large scale or will be uneconomical to market; that
proprietary rights of third parties will preclude the Company from marketing
such drugs; or that third parties will market superior or equivalent drugs.
The failure to develop safe, commercially viable drugs would have a material
adverse effect on the Company's business, operating results and financial
condition.
Uncertainty Due to Unproven Technology. The Company's drug discovery
approach faces technical issues which have not been resolved and requires the
development of multiple novel technologies to create a successful drug
candidate. While the Company has demonstrated that certain compounds have the
ability to inhibit the activity of certain molecular targets, the Company has
not proven that this activity can be utilized clinically as a therapeutic.
Furthermore, there can be no assurance that the inhibitory activity already
demonstrated in primary screening will continue to be encouraging in further
screening or drug discovery studies. The Company has not tested any drug
candidates developed from the Company's drug discovery program in humans, and
there can be no assurance that there will be clinical benefits associated
with any such drug candidates. Furthermore, there can be no assurance that
the Company will successfully address these technological challenges or
others that may arise in the course of development. Any failure of the
Company to anticipate or respond adequately to technological developments
will have a material adverse effect on the Company's business, operating
results and financial condition. There can be no assurance that the Company
will be able to employ its drug discovery approach successfully.
3
<PAGE>
Dependence on Collaborative Partners and Others. A key element of the
Company's strategy is to enhance certain of its drug discovery and
development programs and to fund its capital requirements, in part, by
entering into collaborative agreements with major pharmaceutical companies.
The Company is a party to collaborative agreements with Bristol-Myers Squibb
and Merck (collectively, the "Collaborative Agreements"). Under the
Collaborative Agreements, each of Bristol-Myers Squibb and Merck is
responsible for (i) providing libraries of compounds for screening against
certain of the Company's aminoacyl-tRNA synthetase targets, (ii) selecting,
in collaboration with Cubist, compounds determined to be leads in the
screening for subsequent development, (iii) conducting preclinical and
clinical trials and obtaining required regulatory approvals of drug
candidates, and (iv) manufacturing and commercializing resulting drugs. As a
result, the Company's receipt of revenues (whether in the form of continued
research funding, drug development milestones or royalties on sales) under
the Collaborative Agreements is dependent upon the decisions made by the
manufacturing and marketing resources of its collaborative partners. The
Company's collaborative partners are not obligated to develop or
commercialize any drug candidates resulting from the Collaborative
Agreements. The amount and timing of resources dedicated by the Company's
collaborative partners to their respective collaborations with the Company is
not within the Company's control. Moreover, certain drug candidates
discovered by the Company may be viewed by the Company's collaborative
partners as competitive with such partners' drugs or drug candidates.
Accordingly, there can be no assurance that the Company's collaborative
partners will elect to proceed with the development of drug candidates which
the Company believes to be promising or that they will not pursue their
existing or alternative technologies in preference to such drug candidates.
There can be no assurance that the interests of the Company will continue to
coincide with those of its collaborative partners, that some of the Company's
collaborative partners will not develop independently, or with third parties,
drugs that could compete with drugs of the types contemplated by the
Collaborative Agreements, or that disagreements over rights or technology or
other proprietary interests will not occur.
If any of the Company's collaborative partners breaches or terminates
its agreement with the Company, or otherwise fails to conduct its
collaborative activities in a timely manner, the development or
commercialization of any drug candidate or research program under these
Collaborative Agreements may be delayed, the Company may be required to
undertake unforeseen additional responsibilities or to devote unforeseen
additional resources to such development or commercialization, or such
development or commercialization could be terminated. Any such event could
materially adversely affect the Company's financial condition, intellectual
property position and operations. In addition, there have been a significant
number of recent consolidations among pharmaceutical companies. Such
consolidations among the companies with which the Company is collaborating
could result in the diminution or termination of, or delays in, the
development or commercialization of drug candidates or research programs
under one or more of the Collaborative Agreements.
Additional Financing Requirements; Uncertainty of Available Funding.
The Company will require substantial additional funds for its drug discovery
and development programs, for operating expenses, for pursuing regulatory
clearances, for the development of manufacturing, marketing and sales
capabilities and for prosecuting and defending its intellectual property
rights before it can expect to realize significant revenues from commercial
sales. The Company intends to seek such additional funding through public or
private financing or collaborative or other arrangements with corporate
partners. If additional funds are raised by issuing equity securities,
further dilution to existing stockholders may result and future investors may
be granted rights superior to those of existing stockholders. There can be no
assurance, however, that additional financing will be available from any of
these sources or, if available, will be available on acceptable or affordable
terms. If adequate funds are not available, the Company may be required to
delay, reduce the scope of or eliminate one or more of its research and
development programs or to obtain funds by entering into arrangements with
collaborative partners or others that require the Company to issue additional
equity securities or to relinquish rights to certain technologies or drug
candidates that the Company would not otherwise issue or relinquish in order
to continue independent operations. See "Management's Discussion and Analysis
of Financial Condition and Results of Operations."
History of Losses and Expectation of Future Losses; Uncertainty of
Future Profitability. The Company has incurred a cumulative operating loss
of approximately $20.3 million through September 30, 1997. Losses have
resulted principally from costs incurred in research and development
activities related to the Company's efforts to develop target assays,
acquisition and chemical optimization of compounds, automated high throughput
screening
4
<PAGE>
and from the associated administrative costs. The Company expects to incur
significant additional operating losses over the next several years and
expects cumulative losses to increase substantially due to expanded research
and development efforts, preclinical and clinical trials and development of
manufacturing, marketing and sales capabilities. In the next few years, the
Company's revenues may be limited to research support payments under the
Collaborative Agreements and any amounts received under other research or
drug development collaborations that the Company has established or will
establish. There can be no assurance, however, that the Company will be able
to establish any additional collaborative relationships on terms acceptable
to the Company or maintain in effect the current Collaborative Agreements.
The Company's ability to achieve significant revenue or profitability is
dependent on its or its collaborative partners' ability to successfully
complete the development of drug candidates, to develop and obtain patent
protection and regulatory approvals for the drug candidates and to
manufacture and commercialize the resulting drugs. The Company will not
receive revenues or royalties from commercial sales for a significant number
of years, if at all. Failure to receive significant revenues or achieve
profitable operations would impair the Company's ability to sustain
operations. There can be no assurance that the Company will ever successfully
develop, commercialize, patent, manufacture and market any products, obtain
required regulatory approvals or achieve profitability. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations."
Uncertainty of Patents and Proprietary Rights. The Company's success
will depend in part on its ability to obtain U.S. and foreign patent
protection for its drug candidates and processes, preserve its trade secrets
and operate without infringing the proprietary rights of third parties.
Because of the length of time and expense associated with bringing new drug
candidates through the development and regulatory approval process to the
marketplace, the pharmaceutical industry has traditionally placed
considerable importance on obtaining patent and trade secret protection for
significant new technologies, products and processes. There can be no
assurance that any additional patents will issue from any of the patent
applications owned by, or licensed to, the Company. Further, there can be no
assurance that any rights the Company may have under issued patents will
provide the Company with significant protection against competitive products
or otherwise be commercially viable. Legal standards relating to the validity
of patents covering pharmaceutical and biotechnological inventions and the
scope of claims made under such patents are still developing. There is no
consistent policy regarding the breadth of claims allowed in biotechnology
patents. The patent position of a biotechnology firm is highly uncertain and
involves complex legal and factual questions. There can be no assurance that
any existing or future patents issued to, or licensed by, the Company will
not subsequently be challenged, infringed upon, invalidated or circumvented
by others. In addition, patents may have been granted, or may be granted,
covering products or processes that are necessary or useful to the
development of the Company's drug candidates. If the Company's drug
candidates or processes are found to infringe upon the patents, or otherwise
impermissibly utilize the intellectual property of others, the Company's
development, manufacture and sale of such drug candidates could be severely
restricted or prohibited. In such event, the Company may be required to
obtain licenses from third parties to utilize the patents or proprietary
rights of others. There can be no assurance that the Company will be able to
obtain such licenses on acceptable terms, or at all. There has been
significant litigation in the industry regarding patents and other
proprietary rights. If the Company becomes involved in litigation regarding
its intellectual property rights or the intellectual property rights of
others, the potential cost of such litigation and the potential damages that
the Company could be required to pay could be substantial.
In addition to patent protection, the Company relies on trade secrets,
proprietary know-how and technological advances which it seeks to protect, in
part, by confidentiality agreements with its collaborative partners,
employees and consultants. There can be no assurance that these
confidentiality agreements will not be breached, that the Company would have
adequate remedies for any such breach, or that the Company's trade secrets,
proprietary know-how and technological advances will not otherwise become
known or be independently discovered by others.
Uncertainty Associated with Preclinical and Clinical Testing. Before
obtaining regulatory approvals for the commercial sale of any of the
Company's potential drugs, the drug candidates will be subject to extensive
preclinical and clinical trials to demonstrate their safety and efficacy in
humans. The Company is dependent on its collaborative partners to conduct
clinical trials for the drug candidates resulting from the Collaborative
Agreements and may become dependent on other third parties to conduct future
clinical trials of its internally developed drug
5
<PAGE>
candidates. The Company has no experience in conducting preclinical or
clinical trials, and preclinical or clinical trials have been commenced with
respect to only one of the Company's drug candidates and none of the drug
candidates being developed jointly by the Company and its collaborative
partners. Furthermore, there can be no assurance that preclinical or clinical
trials of any drug candidates will demonstrate the safety and efficacy of
such drug candidates at all or to the extent necessary to obtain regulatory
approvals. Companies in the biotechnology industry have suffered significant
setbacks in advanced clinical trials, even after demonstrating promising
results in earlier trials. The failure to adequately demonstrate the safety
and efficacy of a drug candidate under development could delay or prevent
regulatory approval of the drug candidate and would have a material adverse
effect on the Company's business, operating results and financial condition.
No Assurance of Market Acceptance. There can be no assurance that any
drugs successfully developed by the Company, independently or with its
collaborative partners, if approved for marketing, will achieve market
acceptance. The antiinfective drugs which the Company is attempting to
develop will compete with a number of well-established antiinfective drugs
manufactured and marketed by major pharmaceutical companies. The degree of
market acceptance of any drugs developed by the Company will depend on a
number of factors, including the establishment and demonstration of the
clinical efficacy and safety of the Company's drug candidates, their
potential advantage over existing therapies and reimbursement policies of
government and third-party payors. There is no assurance that physicians,
patients or the medical community in general will accept and utilize any
drugs that may be developed by the Company independently or with its
collaborative partners.
Intense Competition. The biotechnology and pharmaceutical industries
are intensely competitive and subject to rapid and significant technological
change. Competitors of the Company in the United States and elsewhere are
numerous and include, among others, major multinational pharmaceutical and
chemical companies, specialized biotechnology firms and universities and
other research institutions. Many of these competitors employ greater
financial and other resources, including larger research and development
staffs and more effective marketing and manufacturing organizations, than the
Company or its collaborative partners. Acquisitions of competing companies
and potential competitors by large pharmaceutical companies or others could
enhance financial, marketing and other resources available to such
competitors. As a result of academic and government institutions becoming
increasingly aware of the commercial value of their research findings, such
institutions are more likely to enter into exclusive licensing agreements
with commercial enterprises, including competitors of the Company, to market
commercial products. There can be no assurance that the Company's competitors
will not succeed in developing technologies and drugs that are more effective
or less costly than any which are being developed by the Company or which
would render the Company's technology and future drugs obsolete and
noncompetitive.
In addition, some of the Company's competitors have greater experience
than the Company in conducting preclinical trials and obtaining U.S. Food and
Drug Administration ("FDA") and other regulatory approvals. Accordingly, the
Company's competitors may succeed in obtaining FDA or other regulatory
approvals for drug candidates more rapidly than the Company. Companies that
complete clinical trails, obtain required regulatory agency approvals and
commence commercial sale of their drugs before their competitors may achieve
a significant competitive advantage, including certain patent and FDA
marketing exclusivity rights that would delay the Company's ability to market
certain products. There can be no assurance that drugs resulting from the
Company's research and development efforts, or from the joint efforts of the
Company and its collaborative partners, will be able to compete successfully
with competitors' existing products or products under development or that
they will obtain regulatory approval in the United States or elsewhere.
Impact of Extensive Government Regulation. The FDA and comparable
agencies in foreign countries impose substantial requirements upon the
introduction of pharmaceutical products through lengthy and detailed
preclinical, laboratory and clinical testing procedures, sampling activities
and other costly and time-consuming procedures to establish their safety and
efficacy. All of the Company's drug candidates will require governmental
approvals for commercialization, none of which have been obtained.
Preclinical and clinical trials and manufacturing of the Company's drug
candidates will be subject to the rigorous testing and approval processes of
the FDA and corresponding foreign regulatory authorities. Satisfaction of
these requirements typically take a significant number of years and can vary
substantially based upon the type, complexity and novelty of the product.
There can be no assurance as to when Cubist, independently or with its
collaborative partners, might first submit an
6
<PAGE>
IND for FDA or other regulatory review. Government regulation also affects
the manufacturing and marketing of pharmaceutical products.
The effect of government regulation may be to delay marketing of the
Company's potential drugs for a considerable or indefinite period of time,
impose costly procedural requirements upon the Company's activities and
furnish a competitive advantage to larger companies or companies more
experienced in regulatory affairs. Delays in obtaining governmental
regulatory approval could adversely affect the Company's marketing as well as
the Company's ability to generate significant revenues from commercial sales.
There can be no assurance that FDA or other regulatory approvals for any drug
candidates developed by the Company will be granted on a timely basis or at
all. Moreover, if regulatory approval of a drug candidate is granted, such
approval may impose limitations on the indicated use for which such drug may
be marketed. Even if initial regulatory approvals for the Company's drug
candidates are obtained, the Company, its drugs and its manufacturing
facilities would be subject to continual review and periodic inspection, and
later discovery of previously unknown problems with a drug, manufacturer or
facility may result in restrictions on such drug or manufacturer, including
withdrawal of the drug from the market. The regulatory standards are applied
stringently by the FDA and other regulatory authorities and failure to comply
can, among other things, result in fines, denial or withdrawal of regulatory
approvals, product recalls or seizures, operating restrictions and criminal
prosecution.
The FDA has developed two "fast track" policies for certain new drugs
(including antibiotics), one policy for expedited development and review and
one policy for accelerated approval. The expedited development and review
policy applies to new drug therapies that are intended to treat persons with
life-threatening and severely debilitating illnesses, especially where no
satisfactory alternative therapy exists. The accelerated approval policy
applies to certain new drugs that are intended to treat persons with serious
or life-threatening illnesses that provide a meaningful therapeutic benefit
to patients over existing treatments. There can be no assurance that any
drug candidate contemplated by the Company will qualify for the FDA's various
fast track or priority approval policies. Nor can there be any assurance that
such policies will remain as currently implemented by the FDA.
As with many biotechnology and pharmaceutical companies, the Company is
subject to numerous environmental and safety laws and regulations. Any
violation of, and the cost of compliance with, these regulations could
materially adversely affect the Company's business, operating results and
financial condition. The Company is subject to periodic inspections and has
not received notice of any material violations of any environmental or safety
law or regulation.
Dependence on Key Personnel. The Company is highly dependent upon the
efforts of its senior management and scientific team, including its President
and Chief Executive Officer. Although Dr. Rocklage has entered into an
employment agreement with the Company, the terms of the employment agreement
provide that Dr. Rocklage may terminate his employment with the Company at
any time upon thirty days' written notice. None of the Company's other
executive officers or key employees has entered into an employment agreement
with the Company. The loss of the services of one or more of these
individuals might impede the achievement of the Company's development
objectives. Because of the specialized scientific nature of the Company's
business, the Company is highly dependent upon its ability to attract and
retain qualified scientific and technical personnel. There is intense
competition among major pharmaceutical and chemical companies, specialized
biotechnology firms and universities and other research institutions for
qualified personnel in the areas of the Company's activities. There can be no
assurance that the Company will be able to continue to attract and retain the
qualified personnel necessary for the development of its business. Loss of
the services of, or failure to recruit, key scientific and technical
personnel could adversely affect the Company's business, operating results
and financial condition.
Lack of Manufacturing, Marketing and Sales Capability and Experience.
Cubist has not yet invested in the development of manufacturing, marketing or
sales capabilities. The Company has no experience in, and currently lacks the
facilities and personnel to, manufacture products in accordance with Good
Manufacturing Practices ("GMP") as prescribed by the FDA or to produce an
adequate supply of compounds to meet future requirements for clinical trials.
If the Company is unable to develop or contract for manufacturing
capabilities on acceptable terms, the Company's ability to conduct
preclinical and clinical trials with the Company's drug candidates will be
adversely affected, resulting in delays in the submission of drug candidates
for regulatory approvals and in the initiation of
7
<PAGE>
new development programs, which in turn could materially impair Cubist's
competitive position and the possibility of achieving profitability.
The Company has no experience in marketing drugs. The Company has
granted marketing rights to its collaborative partners with respect to drugs
developed through the Collaborative Agreements. The Company may seek to
collaborate with a third party to market those drugs for which it has
retained or licensed marketing rights or may seek to market and sell such
drugs directly. If the Company seeks to collaborate with a third party, there
can be no assurance that a collaborative agreement can be reached on
acceptable terms. If the Company seeks to market and sell such drugs
directly, the Company will need to hire additional personnel skilled in
marketing and sales as it develops drugs with commercial potential. There can
be no assurance that the Company will be able to acquire, or establish
third-party relationships to provide, any or all of these capabilities.
Reimbursement and Drug Pricing Uncertainty. The successful
commercialization of, and the interest of potential collaborative partners to
invest in, the development of the Company's drug candidates will depend
substantially on reimbursement of the costs of the resulting drugs and
related treatments at acceptable levels from government authorities, private
health insurers and other organizations, such as health maintenance
organizations ("HMOs"). There can be no assurance that reimbursement in the
United States or elsewhere will be available for any drugs the Company may
develop or, if available, will not be decreased in the future, or that
reimbursement amounts will not reduce the demand for, or the price of, the
Company's drugs, thereby adversely affecting the Company's business. If
reimbursement is not available or is available only to limited levels, there
can be no assurance that the Company will be able to obtain collaborative
partners to manufacture and commercialize drugs, or would be able to obtain a
sufficient financial return on its own manufacture and commercialization of
any future drugs.
Third-party payors are increasingly challenging the prices charged for
medical products and services. Also, the trend toward managed health care in
the United States and the concurrent growth of organizations such as HMOs,
which can control or significantly influence the purchase of health care
services and products, as well as legislative proposals to reform health care
or reduce government insurance programs, may result in lower prices for
pharmaceutical products. The cost containment measures that health care
providers are instituting, including practice protocols and guidelines and
clinical pathways, and the effect of any health care reform, could materially
adversely affect the Company's ability to sell any of its drugs if
successfully developed and approved. Moreover, the Company is unable to
predict what additional legislation or regulation, if any, relating to the
health care industry or third-party coverage and reimbursement may be enacted
in the future or what effect such legislation or regulation would have on the
Company's business.
Potential Product Liability and Availability of Insurance. The
Company's business exposes it to potential liability risks that are inherent
in the testing, manufacturing and marketing of pharmaceutical products. The
use of the Company's drug candidates in clinical trials may expose the
Company to product liability claims and possible adverse publicity. These
risks will expand with respect to the Company's drug candidates, if any, that
receive regulatory approval for commercial sale. Product liability insurance
for the biotechnology industry is generally expensive, if available at all.
The Company does not have product liability insurance but intends to obtain
such coverage if and when its drug candidates are tested in clinical trials.
However, such coverage is becoming increasingly expensive and there can be no
assurance that the Company will be able to obtain insurance coverage at
acceptable costs or in a sufficient amount, if at all, or that a product
liability claim would not adversely affect the Company's business, operating
results or financial condition.
Control by Existing Stockholders. The Company's officers, directors and
principal stockholders and their affiliates will own or control approximately
69.0% of the Company's outstanding Common Stock. As a result, these
stockholders, acting together, will have the ability to control most matters
requiring approval by the stockholders of the Company, including the election
of the Company's Board of Directors.
Potential Anti-Takeover Effect of Certain Charter and By-Law Provisions.
Pursuant to the Company's Restated Certificate of Incorporation (the
"Restated Certificate of Incorporation"), special meetings of stockholders
may be called only by the Chairman of the Board, the President or a majority
of the Board of Directors of the Company. In addition, the Restated
Certificate of Incorporation authorizes the Board of Directors to issue
preferred
8
<PAGE>
stock and to determine its rights and preferences in order to eliminate
delays associated with a stockholder vote on specific issuances. The Company
has no present plans to issue any shares of preferred stock. The Restated
Certificate of Incorporation also provides for staggered elections of the
Company's Board of Directors and specific procedures for director nominations
by stockholders and submission of other proposals for consideration at
stockholder meetings. These provisions may have the effect of deterring
hostile takeovers or delaying or preventing changes in control or management
of the Company, including transactions in which stockholders might otherwise
receive a premium for their shares over then-current market prices. Certain
provisions of Delaware law applicable to the Company could also delay or make
more difficult a merger, tender offer or proxy contest involving the Company,
including Section 203 of the Delaware General Corporation Law (the "DGCL"),
which prohibits a Delaware corporation from engaging in any business
combination with any stockholder owning 15% or more of Company's outstanding
voting stock ("interested stockholder") for a period of three years from the
date a stockholder becomes an interested stockholder unless certain
conditions are met. These provisions could also limit the price that
investors might be willing to pay in the future for shares of Common Stock.
Absence of Dividends. The Company has never declared or paid cash
dividends and does not intend to declare or pay any cash dividends in the
foreseeable future.
9
<PAGE>
THE COMPANY
Cubist Pharmaceuticals, Inc. ("Cubist" or the "Company") is a
biopharmaceutical company engaged in the research, development and
commercialization of novel antiinfective drugs to treat infectious diseases
caused by bacteria and fungi, primarily those resistant to existing
antiinfective drugs. The mailing address and telephone number of the
Company's principal executive office is 24 Emily Street, Cambridge, MA 02139
(617) 576-1999.
RECENT DEVELOPMENTS
On November 7, 1997, the Company entered into a license agreement with
Eli Lilly and Company ("Eli Lilly") pursuant to which the Company acquired
exclusive worldwide rights to develop, manufacture and market daptomycin.
Daptomycin is a novel, natural product being developed by the Company in
oral, topical, aerosol and intravenous formulations for the treatment of
Staphylococcus aureus and enterococcal infections. Subject to meetings with
the U.S. Food and Drug Administration and the successful manufacture of
daptomycin, the Company anticipates that it will begin clinical trials of
daptomycin in late 1998. In exchange for such license, the Company has
agreed to pay an upfront license fee in cash and, if certain drug development
milestones are achieved, to pay milestone payments by issuing shares of
Common Stock to Eli Lilly. In addition, the Company will be required to pay
royalties to Eli Lilly on worldwide sales of daptomycin.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the shares of
Common Stock offered hereby by the Selling Stockholders.
10
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth certain information regarding the
beneficial ownership of the Company's Common Stock as of December 31, 1997,
by each of the Selling Stockholders. The information provided in the table
below with respect to each Selling Stockholder has been obtained from such
Selling Stockholder. Except as otherwise disclosed below, none of the Selling
Stockholders has, or within the past three years has had, any position,
office or other material relationship with the Company or any of its
predecessors or affiliates. Because the Selling Stockholders may sell all or
some portion of the shares of Common Stock beneficially owned by them, no
estimate can be given as to the number of shares of Common Stock that will be
beneficially owned by the Selling Stockholders after the consummation of this
offering. In addition, the Selling Stockholders may have sold, transferred or
otherwise disposed of, or may sell, transfer or otherwise dispose of, at any
time or from time to time since the date on which they provided to the
Company the information regarding the shares of Common Stock beneficially
owned by them, all or a portion of the shares of Common Stock beneficially
owned by them in transactions exempt from the registration requirements of
the Securities Act.
<TABLE>
<CAPTION>
Name and Address of Beneficial Owner Shares Number Shares
- ------------------------------------ Beneficially Owned of Shares Beneficially Owned
Prior to Offering (1) Being Offered After Offering(1)
--------------------- ------------- ------------------
Number Number Percent
------ ------ -------
<S> <C> <C> <C> <C>
International Biotechnology Trust plc......... 1,116,327 816,327 300,000 2.8%
Five Arrows House
St. Swithin's Lane
London EC4N 8NR
ENGLAND
Entities affiliated with
H&Q Capital Management(2)..................... 918,738 163,267 428,571 4.0%
50 Rowes Wharf
Boston, MA 02110
Paul R. Schimmel(3).......................... 297,539 285,713 11,826 *
</TABLE>
___________
* Less than 1% of the oustanding shares of Common Stock.
(1) Beneficial ownership is determined in accordance with Rule 13d-3(d)
promulgated by the Commission under the Securities and Exchange Act of
1934, as amended. Shares of Common Stock issuable pursuant to options,
warrants and convertible securities, to the extent such securities are
currently exercisable or convertible within 60 days of December 31, 1997,
are treated as outstanding for computing the percentage of the person
holding such securities but are not treated as outstanding for computing
the percentage of any other person. Unless otherwise noted, each person
or group identified possesses sole voting and investment power with
respect to shares, subject to community property laws where applicable.
Shares not outstanding but deemed beneficially owned by virtue of the
right of a person or group to acquire them within 60 days are treated as
outstanding only for purposes of determining the number of and percent
owned by such person or group.
(2) Consists of 528,055 shares held by H&Q Healthcare Investors and 390,683
shares held by H&Q Life Sciences Investors. H&Q Capital Management, Inc.
is the general partner of H&Q Healthcare Investors and H&Q Life Sciences
Investors and as such H&Q Capital Management, Inc. shares voting and
investment power with respect to the shares owned by H&Q Healthcare
Investors and H&Q Life Sciences Investors. H&Q Capital Management, Inc.
may be deemed to beneficially own all of the shares owned by H&Q
Healthcare Investors and H&Q Life Sciences Investors although H&Q Capital
Management, Inc. disclaims beneficial ownership except to the extent of
its proportionate partnership interest in each of H&Q Healthcare
Investors and H&Q Life Sciences Investors.
(3) Includes 11,826 shares of Common Stock which Dr. Schimmel has the right
to acquire within 60 days of December 31, 1997 upon the exercise of stock
options, and 65,714 shares held by the Paul R. Schimmel Profit-Sharing
Plan. Dr. Schimmel is a director of the Company.
11
<PAGE>
PLAN OF DISTRIBUTION
The Company has been advised by the Selling Stockholders that the shares
of Common Stock offered hereby may be sold from time to time to purchasers
directly by the Selling Stockholders. Alternatively, the Selling Stockholders
may from time to time offer any or all of the shares of Common Stock offered
hereby to or through underwriters, broker/dealers or agents, who may receive
compensation in the form of underwriting discounts, concessions or
commissions from the Selling Stockholders or the purchasers of such shares of
Common Stock for whom they may act as agents. The Selling Stockholders and
any underwriters, broker/dealers or agents that participate in the
distribution of the shares of Common Stock offered hereby may be deemed to be
"underwriters" within the meaning of the Securities Act and any profit
realized by them on the sale of such shares of Common Stock and any
discounts, commissions, concessions or other compensation received by any
such underwriter, broker/dealer or agent may be deemed to be underwriting
discounts and commissions under the Securities Act.
The Company has been advised by the Selling Stockholders that the shares
of Common Stock offered hereby may be sold from time to time in one or more
transactions at fixed prices, at market prices prevailing at the time of
sale, at varying prices determined at the time of sale or at negotiated
prices. The sale of the shares of Common Stock offered hereby may be effected
in transactions (which may involve crosses or block transactions) (i) on any
national securities exchange or quotation service on which the Common Stock
may be listed or quoted at the time of sale, (ii) in the over-the-counter
market, (iii) in transactions otherwise than on such exchanges or in the
over-the-counter market or (iv) through the writing of options. At the time a
particular offering of any of the shares of Common Stock offered hereby is
made, a supplement to this Prospectus, if required, will be distributed which
will set forth the aggregate number of shares of Common Stock being offered
and the terms of such offering, including the name or names of any
underwriters, broker/dealers or agents, any discounts, commissions and other
terms constituting compensation from the Selling Stockholders and any
discounts, commissions or concessions allowed or reallowed to be paid to
broker/dealers.
To comply with the securities laws of certain jurisdictions, if
applicable, the shares of Common Stock offered hereby will be offered or sold
in such jurisdictions only through registered or licensed brokers or dealers.
In addition, in certain jurisdictions the shares of Common Stock offered
hereby may not be offered or sold unless they have been registered or
qualified for sale in such jurisdictions or an exemption from registration or
qualification is available and complied with.
Under applicable rules and regulations of the Exchange Act, any person
engaged in a distribution of any of the shares of Common Stock offered hereby
may not simultaneously engage in market-making activities with respect to the
Common Stock of the Company for a period of nine business days prior to the
commencement of such distribution. In addition to and without limiting the
foregoing, each Selling Stockholder and any other person participating in a
distribution will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder, including without limitation Rules
10b-6 and 10b-7, which provisions may limit the timing of purchases and sales
of any shares of Common Stock of the Company by the Selling Stockholders or
any such other person. All of the foregoing may affect the marketability of
the Common Stock of the Company and the ability of brokers or dealers to
engage in market-making activities with respect to the Common Stock of the
Company.
Pursuant to the agreements with the Selling Stockholders, all expenses
of the registration of the Securities will be paid by the Company, including
without limitation, Commission filing fees and expenses of compliance with
state securities or "blue sky" laws; provided, however, that the Selling
Stockholders will pay all underwriting discounts and selling commissions, if
any. The Selling Stockholders will be indemnified by the Company against
certain civil liabilities, including certain liabilities under the Securities
Act, or will be entitled to contribution in connection therewith. The Company
will be indemnified by the Selling Stockholders against certain civil
liabilities, including certain liabilities under the Securities Act, or will
be entitled to contribution in connection therewith.
12
<PAGE>
LEGAL MATTERS
Bingham Dana LLP, Boston, Massachusetts will opine that the Shares offered
hereby have been validly issued and are fully paid and non-assessable. Justin
P. Morreale, a partner at Bingham Dana LLP, is the Secretary of the Company
and owns a total of 42,857 shares of Common Stock of the Company. Other
partners and associates at Bingham Dana LLP own a total of 6,982 shares of
Common Stock of the Company.
EXPERTS
The balance sheets of the Company as of December 31, 1995 and 1996 and
the related statements of operations, changes in stockholders' equity and
cash flows for each of the three years in the period ended December 31, 1996
incorporated by reference in this Prospectus and in this Registration
Statement have been incorporated herein in reliance on the report of Coopers
& Lybrand L.L.P., independent accountants, given upon the authority of that
firm as experts in accounting and auditing.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
There is incorporated herein by reference the Annual Report on Form 10-K
of the Company for the fiscal year ended December 31, 1996 and the Quarterly
Reports on Form 10-Q of the Company for the fiscal quarters ended March 31,
1997, June 30, 1997 and September 30, 1997, filed with the Commission
pursuant to Section 13(a) of the Exchange Act, and the description of the
Common Stock contained in the Company's Registration Statement filed with the
Commission under to Section 12(g) of the Exchange Act including any amendment
or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Common Stock shall be deemed
to be incorporated by reference in this Prospectus and to be a part hereof
from the date of filing such documents. Any statement contained herein or in
a document, all or a portion of which is incorporated or deemed to be
incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document or portion
thereof which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
13
<PAGE>
No dealer, sales person, or any other person has been authorized to give any
information or to make any representations not contained in this Prospectus
in connection with any offering other made hereby, and, if given or made,
such information or representations must not be relied upon as having been
authorized by the Company or any Underwriter. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any
securities other than the shares of Common Stock to which it relates or an
offer to, or a solicitation of, any person in any jurisdiction where such an
offer or solicitation would be unlawful. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
an implication that there has been no change in the affairs of the Company
since the date hereof or that information contained herein is correct as of
any time subsequent to the date hereof.
1,265,307 Shares
Cubist Pharmaceuticals, Inc.
Common Stock
---------------
PROSPECTUS
January 9, 1998
---------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses in connection with the issuance and distribution of the
securities being registered are set forth in the following table (all amounts
except the registration fee and the listing fee are estimated):
<TABLE>
<S> <C>
SEC Registration Fee................................................................... $ 1,989.02
Nasdaq National Market Listing Fees.................................................... 17,500.00
Legal Fees and Expenses................................................................ 10,000.00
Accountants' Fees and Expenses......................................................... 5,000.00
Expenses of Qualification Under State Securities Laws, Including Attorneys' Fees....... 2,000.00
Miscellaneous Costs.................................................................... 8,000.98
----------
Total........................................................................ $44,490.00
</TABLE>
All expenses in connection with the issuance and distribution of the
securities being offered shall be borne by the Company.
Item 15. 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 Exhibit 3.3 and
3.4, 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 Amended and Restated Shareholders Rights Agreement, filed as Exhibit
4.2 hereto, the Registration Rights Agreement, dated as of July 18, 1997,
filed as Exhibit 4.3 hereto, and the Registration Rights Agreement, dated as
of July 18, 1997, filed as Exhibit 4.4 hereto, provide for indemnification by
the Registrant of each of the Selling Stockholders against certain
liabilities under the Securities Act, the Securities Exchange Act, state
securities laws or otherwise, and provides for indemnification by the Selling
Stockholders of the Registrant and its directors, its officers and certain
control persons against certain liabilities under the Securities Act, the
Securities Exchange Act, state securities laws or otherwise.
Item 16. Exhibits
Exhibits
*3.3 Restated Certificate of Incorporation of the Registrant.
*3.4 Amended and Restated By-Laws of the Registrant, as amended to date.
*4.1 Specimen certificate for shares of Common Stock.
*4.2 Shareholders Rights Agreement among the Registrant and the
shareholders listed on Exhibit A thereto.
**4.3 Registration Rights Agreement, dated as of July 18, 1997, between
the Registrant and International Biotechnology Trust plc.
**4.4 Registration Rights Agreement, dated as of July 18, 1997, among the
Registrant, H&Q Healthcare Investors and H&Q Life Science Investors.
**5.1 Opinion of Bingham Dana LLP
II-1
<PAGE>
**23.1 Consent of Bingham Dana LLP (included in Exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P.
___________
* Incorporated by reference from the Registrant's Registration Statement on
Form S-1 (Registration No. 333-6795).
** Previously filed.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
pursuant to this Registration Statement, 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, 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15 (d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions described in Item 15
above, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission 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.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant, Cubist Pharmaceuticals, Inc., certifies that it has
reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 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 9th day of January,
1998.
Cubist Pharmaceuticals, Inc.
By:
/s/ Scott M. Rocklage
-------------------------
Scott M. Rocklage
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Scott M. Rocklage President, Chief Executive Officer and Director January 9, 1998
- ------------------------- (Principal Executive Officer)
Scott M. Rocklage
/s/ Thomas A. Shea Treasurer (Principal Financial and January 9, 1998
- ------------------------- Accounting Officer)
Thomas A. Shea
* Chairman of the Board of Directors January 9, 1998
- -------------------------
John K. Clarke
* Director January 9, 1998
- -------------------------
Barry Bloom
* Director January 9, 1998
- -------------------------
George Conrades
* Director January 9, 1998
- -------------------------
Ellen M. Feeney
* Director January 9, 1998
- -------------------------
David Martin
* Director January 9, 1998
- -------------------------
Terrance G. McGuire
* Director January 9, 1998
- -------------------------
Julius Rebek, Jr.
* Director January 9, 1998
- -------------------------
Paul R. Schimmel
*By: /s/ Thomas A. Shea
- -------------------------
Thomas A. Shea,
Attorney-in-Fact
</TABLE>
II-3
<PAGE>
EXHIBIT INDEX
Exhibits
*3.3 Restated Certificate of Incorporation of the Registrant.
*3.4 Amended and Restated By-Laws of the Registrant, as amended to date.
*4.1 Specimen certificate for shares of Common Stock.
*4.2 Shareholders Rights Agreement among the Registrant and the
shareholders listed on Exhibit A thereto.
**4.3 Registration Rights Agreement, dated as of July 18, 1997, between
the Registrant and International Biotechnology Trust plc.
**4.4 Registration Rights Agreement, dated as of July 18, 1997, among the
Registrant, H&Q Healthcare Investors and H&Q Life Science Investors.
**5.1 Opinion of Bingham Dana LLP
**23.1 Consent of Bingham Dana LLP (included in Exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P.
___________
* Incorporated by reference from the Registrant's Registration Statement on
Form S-1 (Registration No. 333-6795).
** Previously filed.
II-4
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Post-Effective
Amendment No. 1 to Form S-1 on Form S-3 (File number 333-33883) of our report
dated February 12, 1997 (except as to the information in the last paragraph
of Footnote F, for which the date is August 18, 1997), on our audits of the
financial statements of Cubist Pharmaceuticals, Inc. We also consent to the
reference to our firm under the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
---------------------------
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
January 9, 1998
