<PAGE>
As filed with the Securities and Exchange Commission on October 6, 1998
File No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------------------
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)
----------------------
CUBIST PHARMACEUTICALS, INC.
AMENDED AND RESTATED 1993 STOCK OPTION 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
----------------------
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
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<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
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
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.001 par value................. 655,427 $2.44 $ 1,599,241.88 $ 471.77
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
</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 of these shares will be purchased or at what
price. The estimate of the proposed maximum aggregate offering price
has been calculated based on the offering of all 655,427 shares
registered hereunder pursuant to the grant of stock options under the
Plan exercisable for all of such shares, 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.
Pursuant to Rule 429 promulgated under the Securities Act of 1933, as
amended, the Prospectus relating to this Registration Statement is a combined
Prospectus that relates also to the Registration Statement on Form S-8 (File
No. 333-25707) previously filed by the Registrant on April 23, 1997, which
registers 1,500,000 shares of Common Stock. A filing fee in the amount of
$2,550.80 was previously paid with respect to such shares.
<PAGE>
EXPLANATORY NOTE
On April 23, 1997, the Registrant filed a Registration Statement on
Form S-8 (File No. 333-25707) (hereinafter, the "First Registration Statement")
for purposes of effecting the registration under the Securities Act of 1933, as
amended (the "Securities Act"), of 1,500,000 shares of common stock, par value
$0.001 per share ("Common Stock"), issuable by Registrant under the Plan.
Subsequently, the Registrant amended the Plan for the purpose of increasing the
aggregate number of shares of Common Stock subject to issuance under the Plan,
as amended from 1,500,000 to 2,000,000. Prior to the amendment, by the terms of
the Plan, the aggregate number of shares of Common Stock subject to issuance
under the Plan automatically increased from 1,500,000 to 1,655,427.
This Registration Statement on Form S-8 has been prepared and filed
pursuant to and in accordance with the requirements of General Instruction E to
Form S-8 for the purpose of effecting the registration under the Securities Act
of the additional 655,427 shares of Common Stock subject to issuance upon
exercise of stock options that may be granted under the Plan at any time or from
time to time after the date hereof under the Plan. Pursuant to General
Instruction E to Form S-8, the Registrant hereby incorporates herein by
reference the contents of the First Registration Statement.
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.
<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 PHARMACEUTICAL, 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
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/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>
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
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).
<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 an additional
655,427 shares of common stock, $0.001 par value per share, of the Company (the
"Shares"), which are to be issued by the Company upon exercise of 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. 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
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 655,427 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
