<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH , 2000
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)
<TABLE>
<S> <C>
DELAWARE 22-3192085
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
------------------------
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.
Chairman of the Board of Directors, Chief Executive Officer and President
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
<TABLE>
<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.......... 844,573 $50.625 $42,756,508 $11,287.72
</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 844,573 shares registered
hereunderpursuant to the grant of stock options under the Plan exercisable
for all of such shares, at an exercise price of $50.625 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 March 8, 2000.
Pursuant to Rule 429 promulgated under the Securities Act of 1933, as
amended, the Prospectus relating to this Registration Statement is is a combined
Prospectus that related also to the Registration Statement on Form S-8 (File
No. 333-65385) previously filed by the Registrant on October 6, 1998, which
registers 655,427 shares of Common Stock, and the Registration Statement on
Form S-8 (File No. 33-25707) 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 $3,022.57 was previously paid with respect to such shares.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
On April 23, 1997, we filed a Registration Statement on Form S-8 (File
No. 333-25707) (referred to in this document as, the "First Registration
Statement") to register under the Securities Act of 1933, as amended, 1,500,000
shares of common stock, par value $0.001 per share, issuable by us under the
Plan. On October 6, 1998, we filed a Registration statement on Form S-8 (file
No. 333-65385) (referred to in this document as the "Second Registration
Statement") to register under the Securities Act an additional 655,427 shares of
our common stock issuable by us under the Plan. By the terms of the Plan, since
the time of the filing of the Second Registration Statement, the aggregate
number of shares of our common stock subject to issuance under the Plan
automatically increased from 2,155,427 to 3,000,000.
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 844,573 shares of our 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.
We incorporate by reference the documents listed below and any future
filings we will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934:
- our Annual Report on Form 10-K for the year ended December 31, 1999;
- our Current Reports on Form 8-K filed on January 27, 2000; March 7,
2000,and March 9, 2000;
- the description of our common stock contained in our registration
statement on Form 8-A filed with the SEC on September 17, 1996, including
any amendments or reports filed for the purpose of updating that
description; and
- the description of the preferred stock purchase rights for our Series A
Junior Participating Preferred Stock contained in our registration
statement on Form 8-A filed with the SEC on August 2, 1999, including any
amendments or reports filed for the purpose of updating that description.
You may request a copy of these filings at no cost (other than exhibits
unless those exhibits are specifically incorporated by reference herein) by
writing, telephoning or e-mailing us at the following address:
Cubist Pharmaceuticals, Inc.
24 Emily Street
Cambridge, MA 02139
Attn: Thomas A. Shea
(617) 576-1999
e-mail: [email protected]
<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
10th day of March, 2000.
<TABLE>
<S> <C> <C>
CUBIST PHARMACEUTICALS, INC.
By: /s/ SCOTT M. ROCKLAGE
-----------------------------------------
Scott M. Rocklage, Ph.D.
Chairman of the Board of Directors,
Chief Executive Officer and President
</TABLE>
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
--------- ----- ----
<C> <S> <C>
Chairman of the Board of
/s/ SCOTT M. ROCKLAGE Directors, Chief Executive
------------------------------------------- Officer and President March 10, 2000
Scott M. Rocklage (Principal Executive
Officer)
/s/ THOMAS A. SHEA Vice President and Chief
------------------------------------------- Financial Officer March 10, 2000
Thomas A. Shea
/s/ JOHN K. CLARKE Director
------------------------------------------- March 10, 2000
John K. Clarke
/s/ BARRY M. BLOON Director
------------------------------------------- March 10, 2000
Barry M. Bloom
/s/ TRUDIE RESCH Director
------------------------------------------- March 10, 2000
Trudie Resch
/s/ WALTER MAUPAY Director
------------------------------------------- March 10, 2000
Walter Maupay
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ DAVID MARTIN Director
------------------------------------------- March 10, 2000
David Martin
/s/ PAUL R. SCHIMMEL Director
------------------------------------------- March 10, 2000
Paul R. Schimmel
/s/ JOHN ZABRISKIE Director
------------------------------------------- March 10, 2000
John Zabriskie
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------------------- -----------
<C> <S>
3.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3 to Cubist's
Quarterly Report on Form 10-Q filed on August 12, 1999)
(File no. 000-21379).
3.2 Amended and Restated By-Laws of the Registrant, as amended
to date. (incorporated by reference to Exhibit 3.4,
Registration No. 333-6795).
4.1 Specimen certificate for shares of Common Stock
(incorporated by reference to Exhibit 3.4 to Cubist's
Registration Statement on Form S-1) (Registration No.
333-6795).
4.2 Rights Agreement dated as of July 21, 1999 between Cubist
and BankBoston, N.A. as Rights Agent (incorporated by
reference to Exhibit 99.1 to Cubist's Report on Form 8-K
filed on July 30, 1999) (File no. 000-21379).
4.3 First Amendment, dated as of March 3, 2000, to the Rights
Agreement, dated as of July 21, 1999 between the Company and
Fleet National Bank f/k/a BankBoston, N.A., as Rights Agent
(incorporated herein by reference to Exhibit 4.2 to the
Company's Registration Statement on Form 8-A/A filed on
March 9, 2000) (File No. 000-21379)
4.4 Form of Amended Rights Certificate (incorporated herein by
reference to Exhibit 4.4 to the Company's Registration
Statement on Form 8-A/A filed on March 9, 2000) (File No.
000-21379)
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
March 10, 2000
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
March 10, 2000 (the "Registration Statement").
The Registration Statement covers the registration of an additional 844,573
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
issued or 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.
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.
This opinion is limited solely to the Delaware General Corporation Law, as
applied by courts located in Delaware, the applicable provisions of the Delaware
Constitution and the reported judicial decisions interpreting those laws.
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 hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 to register 844,573 shares of common stock for the Amended
and Restated 1993 Stock Option Plan of our report dated February 4, 2000
relating to the financial statements of Cubist Pharmaceuticals, Inc (the
"Company"), which appears in the Company's Annual Report on Form 10-K for the
year ended December 31, 1999.
PricewaterhouseCoopers LLP
Boston, Massachusetts
March 10, 2000
