<PAGE>
As filed with the Securities and Exchange Commission on October 6, 1998
File No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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 (I.R.S. Employer
Jurisdiction of Identification No.)
Incorporation
or Organization)
24 Emily Street, Cambridge, MA 02139
(Address of Principal Executive Offices) (Zip Code)
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CUBIST PHARMACEUTICALS, INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
----------------------
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 LLP
150 Federal Street
Boston, MA 02110-1726
(617) 951-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Amount Maximum Maximum Amount Of
Title Of To Be Offering Price Aggregate Registration
Securities To Be Registered Registered Per Share (1) Offering Price (1) Fee
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<S> <C> <C> <C> <C>
Common Stock,
$0.001 par value ................ 250,000 $ 2.44 $ 610,000 $ 179.95
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</TABLE>
(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 the
offering of 250,000 shares, being the aggregate number of shares of
Common Stock available for issuance upon exercise of options to be
granted under the Plan, at an exercise price of $2.44 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 October 2, 1998.
<PAGE>
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, 1997; (2) all
reports 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 1997 fiscal year; (3) the Registrant's Current Report on
Form 8-K filed with the Commision on September 15, 1998 and (4) 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 indicates that all securities
offered hereby have been sold or which deregisters 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.
<PAGE>
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 LLP with respect to the
legality of the shares being registered.
23.1 Consent of Bingham Dana LLP (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP.
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
<PAGE>
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 on 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 6th day of October, 1998.
CUBIST PHARMACEUTICALS, INC.
By: /s/ Scott M. Rocklage
------------------------------------
Scott M. Rocklage, Ph.D.
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Scott M. Rocklage President and Chief Executive Officer, Director October 6, 1998
- ---------------------------------- (Principal Executive Officer)
Scott M. Rocklage, Ph.D.
/s/ Thomas A. Shea Senior Director of Finance October 6, 1998
- ---------------------------------- and Administration, Treasurer
Thomas A. Shea (Principal Financial and Accounting Officer)
/s/ John K.Clarke Chairman of the Board of Directors October 6, 1998
- ----------------------------------
John K. Clarke
/s/ Barry Bloom
- ---------------------------------- Director October 6, 1998
Barry Bloom, Ph.D.
/s/ George Conrades
- ---------------------------------- Director October 6, 1998
George Conrades
3
<PAGE>
/s/ Ellen M. Feeney Director October 6, 1998
- ----------------------------------
Ellen M. Feeney
/s/ David M. Martin Director October 6, 1998
- ----------------------------------
David M. Martin, M.D.
/s/ Terrance G. McGuire Director October 6, 1998
- ----------------------------------
Terrance G. McGuire
/s/ Paul R. Schimmel Director October 6, 1998
- ----------------------------------
Paul R. Schimmel, Ph.D.
</TABLE>
4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
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 LLP with respect to the
legality of the shares being registered.
23.1 Consent of Bingham Dana LLP (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included in signature page to
Registration Statement).
</TABLE>
<PAGE>
Exhibit 5
Bingham Dana LLP
150 Federal Street
Boston, MA 02110
October 6, 1998
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 Commission on
October 6, 1998 (the "Registration Statement").
The Registration Statement covers the registration of 250,000 shares of
common stock, $0.001 par value per share, of the Company (the "Shares"), which
are to be issued by the Company pursuant to the Cubist Pharmaceuticals, Inc.,
1997 Employee Stock Purchase 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. As to all matters of fact (including factual conclusions
and characterizations and descriptions of purpose, intention or other state of
mind) we have relied entirely upon certificates of officers of the Company, and
have assumed, without independent inquiry, the accuracy of those certificates.
<PAGE>
Cubist Pharmaceuticals, Inc.
October 6, 1998
Page 2
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.
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 LLP
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BINGHAM DANA LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 to register 250,000 shares of common stock of our
report dated January 19, 1998, on our audits of the financial statements of
Cubist Pharmaceuticals, Inc.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
October 6, 1998
