<PAGE>
As filed with the Securities and Exchange Commission on May 13, 1997
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under the
SECURITIES ACT OF 1933
VERTEX PHARMACEUTICALS INCORPORATED
(Exact name of registrant as specified in its charter)
Massachusetts 04-3039129
State of incorporation or organization) (I.R.S. Employer Identification No.)
130 Waverly Street, Cambridge, Massachusetts 02139-4211
(Address of Principal Executive Offices)
Vertex Pharmaceuticals Incorporated
1996 Stock and Option Plan
(Full title of the plan)
Joshua Boger, President & Chief Executive Officer
Vertex Pharmaceuticals Incorporated
130 Waverly Street
Cambridge, MA 02139-4242
(Name and address of agent for service)
(617) 577-6000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered (1) Per Share (2) Offering Price (2) Registration Fee
- ------------------- -------------- --------------- ------------------ ----------------
<C> <C> <C> <C> <C>
Common Stock, par
value, $.01 per share 2,000,000 $35.0625 $70,125,000 $21,250.00
Rights to purchase Series
A Junior Participating
Preferred Stock (3) (3) (3) None
</TABLE>
(1) Together with an indeterminate number of additional shares which
may result from a stock split, stock dividend, or other similar
adjustment of the outstanding shares of Common Stock.
(2) Estimated solely for the purpose of calculating the registration
fee on the basis of the average of the high and low prices per
share of the Registrant's Common Stock on the Nasdaq National
Market System as of a date (May 9, 1997) within five (5)
business days prior to filing this Registration Statement.
(3) No separate consideration will be received for the Rights.
Page 1
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) Annual Report of the Company on Form 10-K for the fiscal
year ended December 31, 1996 (Commission File No. 0-19319);
(b) Quarterly Report of the Company on Form 10-Q (Commission
File No. 0-19319) for the quarter ended March 31, 1997;
(c) The description of the Company's Common Stock included in
the Registrant's registration statement on Form 8-A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") filed
with the Commission on May 30, 1991 (which incorporates by reference
certain portions of the Company's Registration Statement on Form S-1
(Registration No. 33-40966) filed with the Commission on May 30,
1991), including any amendment or report filed for the purpose of
updating such description; and
(d) The description of the Rights under the Company's
Stockholder Rights Plan (which are currently transferred with the
Company's Common Stock) contained in the Company's Registration
Statement on Form S-3 (Registration No. 333-22303) filed with the
Commission on February 24, 1997, as amended.
All reports and other documents subsequently filed by the
Registrant with the Commission 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 covered by this
Registration Statement have been sold or which deregisters all such
securities then remaining unsold shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing
of such reports and documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Part D of Article 6 of the Restated Articles of Organization of the
Registrant provides that no director of the Registrant shall be
personally liable to the Registrant or its stockholders for monetary
damages for breach of fiduciary duty as a director. Such paragraph
provides further, however, that, to the extent provided by applicable
law, it will not eliminate or limit the liability of a director (i)
for any breach of the director's duty of loyalty to the Registrant or
its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law,
(iii) for distributions made in violation of the Registrant's Restated
Articles of Organization or which are made when the Registrant is
insolvent or which renders it insolvent, (iv) for loans made to
officers or directors of the Registrant which are not repaid if the
director has voted for such loans and they have not been approved or
ratified as loans reasonably expected to benefit the Registrant, by a
majority of directors who are not recipients of such loans or the
holders of a majority of voting shares, which holders are not
recipients of such loans, and (v) for any transactions from which the
director derived an improper personal benefit.
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<PAGE>
Article V of the Registrant's By-laws provides that the Registrant
shall indemnify each of its directors and officers (including persons
who serve at the Registrant's request as a director, officer or
trustee of another organization in which the Registrant has any
interest, direct or indirect, as a stockholder, creditor or otherwise
or who serve at the Registrant's request in any capacity with respect
to any employee benefit plan) against all liabilities and expenses,
including amounts paid in satisfaction of judgments, in compromise or
as fines and penalties and counsel fees reasonably incurred by such
director or officer in connection with the defense or disposition of
any action, suit or other proceeding, whether civil or criminal, in
which such director or officer may be involved or with which such
person may be threatened, while in office or thereafter, by reason of
such person's being or having been such a director, officer or
trustee, except with respect to any matter as to which such director
or officer shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that such director's or
officer's action was in the best interest of the Registrant or, to the
extent that such matter relates to service with respect to an employee
benefit plan, in the best interest of the participants or
beneficiaries of such employee benefit plan.
As to any matter disposed of by a compromise payment by any such
person, pursuant to a consent decree or otherwise, Article V of the
Registrant's By-laws provides that no indemnification shall be
provided to such person for such payment or for any other expenses
unless such compromise has been approved as in the best interest of
the Registrant, after notice that it involves such indemnification (i)
by a disinterested majority of the directors then in office, (ii) by a
majority of the disinterested directors then in office, provided there
has been obtained an opinion in writing of independent legal counsel
to the effect that such director or officer appears to have acted in
good faith in the reasonable belief that such person's action was in
the best interest of the Registrant, or (iii) by the holders of a
majority of the outstanding stock at the time entitled to vote for
directors, voting as a single class, exclusive of any stock owned by
any interested director or officer.
Article V of the Registrant's By-laws provides that expenses,
including counsel fees, reasonably incurred by any director or officer
in connection with the defense or disposition of any such action, suit
or other proceeding may be paid from time to time by the Registrant at
the discretion of a majority of the disinterested directors then in
office, in advance of the final disposition thereof, upon receipt of
an undertaking by such director or officer to repay the Registrant the
amounts so paid if it is ultimately determined that indemnification
for such expenses is not authorized under Article V of the By-laws,
which undertaking may be accepted by the Registrant without reference
to the financial ability of such director or officer to make
repayment.
Article V of the Registrant's By-laws gives the Board of Directors
of the Registrant the power to authorize the purchase and maintenance
of insurance, in such amounts as the Board of Directors may from time
to time deem appropriate, on behalf of any person who is or was a
director, officer or agent of the Registrant, or who is or was serving
at the request of the Registrant as a director, officer or agent of
another organization in which the Registrant has any interest, direct
or indirect, as a shareholder, creditor or otherwise, or with respect
to any employee benefit plan, against any liability incurred by such
person in any such capacity, or arising out of such person's status as
such agent, whether or not such person is entitled to indemnification
by the Registrant pursuant to Article V or otherwise and whether or
not the Registrant would have the power to indemnify the person
against such liability.
Section 13(b)(1 1/2) of the Massachusetts Business Corporation Law,
Chapter 156B of the General Laws of Massachusetts (the "MBCL")
authorizes the provisions, described above, contained in Part D of
Article 6 of the Restated Articles of Organization of the Registrant.
Section 67 of the MBCL authorizes the provisions, described above,
contained in Article V of the By-laws of the Registrant.
Section 65 of the MBCL provides that performance by a director,
officer or incorporator of such person's duties in good faith and in a
manner such person reasonably believes to be in the best interest of
the corporation, and with such care as an ordinary prudent person in a
like position would use under similar circumstances, shall be a
complete defense to any claim asserted against
Page 3
<PAGE>
such director, officer or incorporator, except as otherwise expressly
provided by statute, by reason of such person's being or having been a
director, officer or incorporator of the corporation.
Pursuant to Section 6(b) of the Underwriting Agreement, the
Underwriters have agreed to indemnify each director of the Registrant,
each officer of the Registrant who has signed the Registration
Statement and any person who controls the Registrant within the
meaning of the Securities Act against certain liabilities, including
liabilities under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
- ---------- -----------
(4.1) Specimen Common Stock Certificate (filed as Exhibit 4.1 to
the Registration Statement on Form S-1, Registration No.
33-40966, as amended, and incorporated herein by reference)
(4.2) Stockholder Rights Plan (filed as Exhibit 4.2 to the
Registration Statement on Form S-1, Registration No. 33-40966, as
amended, and incorporated herein by reference)
(4.3) First Amendment to Rights Agreement dated as of February 21,
1997 (filed as Exhibit 4.3 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1996 (File No. 0-19319)
(5) Opinion of Warner & Stackpole LLP (filed herewith)
(15) Letter from Coopers & Lybrand L.L.P. regarding unaudited interim
financial information (filed herewith)
(23.1) Consent of Coopers & Lybrand L.L.P. (filed herewith)
(23.2) Consent of Warner & Stackpole LLP (included in Exhibit 5)
(24) Power of Attorney to file future amendments (included in
signature page(s) hereto)
Item 9. Undertakings.
(a) 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 the Registration Statement or
any material change to such information in the 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.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
Page 4
<PAGE>
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 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 this 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.
(c) 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, 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 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 Act and will be
governed by the final adjudication of such issue.
Page 5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Cambridge, Massachusetts,
on May 13, 1997.
VERTEX PHARMACEUTICALS INCORPORATED
/s/ Joshua S. Boger
-----------------------------------
By: Joshua S. Boger
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joshua S. Boger, Richard H.
Aldrich, and Thomas G. Auchincloss, Jr., and each of them, his true
and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution in each of them, for him and in his
name, place and stead, and in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or
any of them or their or his substitute or substitutes may lawfully do
or cause to be done by virtue hereof.
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 dates indicated.
/s/ Joshua S. Boger Director, President and May 13, 1997
- ------------------------ Chief Executive Officer
Joshua S. Boger (Principal Executive Officer)
/s/ Thomas G. Auchincloss, Jr. Vice President of Finance May 13, 1997
- ------------------------ and Treasurer
Thomas G. Auchincloss, Jr. (Principal Financial Officer)
/s/ Hans D. Van Houte Controller May 13, 1997
- ------------------------
Hans D. Van Houte
/s/ Barry M. Bloom Director May 13, 1997
- ------------------------
Barry M. Bloom
/s/ Roger W. Brimblecombe Director May 13, 1997
- ------------------------
Roger W. Brimblecombe
/s/ Donald R. Conklin Director May 13, 1997
- ------------------------
Donald R. Conklin
/s/ William W. Helman IV Director May 13, 1997
- ------------------------
William W. Helman IV
/s/ Charles A. Sanders Director May 13, 1997
- ------------------------
Charles A. Sanders
Page 6
<PAGE>
EXHIBITS
Exhibit No. Description
(5) Opinion of Warner & Stackpole LLP (filed herewith at page 8)
(15) Letter from Coopers & Lybrand L.L.P. regarding unaudited interim
financial information (filed herewith at page 10)
(23.1) Consent of Coopers & Lybrand L.L.P. (filed herewith at page 11)
Page 7
<PAGE>
Exhibit 5
75 State Street WARNER & STACKPOLE LLP Telephone: (617)951-9000
Boston, Massachusetts 02109 COUNSELLORS AT LAW Fax: (617)951-9151
May 13, 1997
Vertex Pharmaceuticals Incorporated
130 Waverly Street
Cambridge, MA 02139-4211
Ladies and Gentlemen:
We have acted as counsel to Vertex Pharmaceuticals Incorporated,
a Massachusetts corporation (the "Company"), in connection with the
preparation and filing with the Securities and Exchange Commission of
a Registration Statement on Form S-8 (the "Registration Statement")
registering for issuance by the Company, upon exercise of options
awarded and to be awarded under the Company's 1996 Stock and Option
Plan (the "Plan"), 2,000,000 shares (the "Shares") of the Common
Stock, $.01 par value per share ("Common Stock"), of the Company.
We have examined the Registration Statement, the Restated
Articles of Organization of the Company and such other documents and
records of the Company as we have deemed necessary for the purpose of
this opinion.
In our examination of the foregoing documents, we have assumed
the genuineness of all signatures and the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter
documents.
We are members of the bar of the Commonwealth of Massachusetts,
and we express no opinion as to any matters insofar as any laws other
than Federal laws and the laws of the Commonwealth of Massachusetts
may be applicable.
We assume for purposes of this opinion that the grants of options
under the Plan have been or will be made in accordance with the terms
and conditions of the Plan.
Page 8
<PAGE>
WARNER & STACKPOLE LLP
Vertex Pharmaceuticals Incorporated
May 13, 1997
Page 2
Based upon the foregoing, we are of the opinion that the Shares
are duly authorized and reserved for issuance pursuant to the terms of
the Plan, and upon (i) the effectiveness of the Registration
Statement, (ii) payment for the Shares in accordance with the terms of
the Plan and (iii) the issuance of certificates therefor by the
Company, the Shares 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/ Warner & Stackpole LLP
Page 9
<PAGE>
Exhibit 15
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We are aware that Vertex Pharmaceuticals Incorporated has incorporated, by
reference, our report dated April 22, 1997 (issued pursuant to the provisions
of Statement on Auditing Standards No. 71) in its Registration Statement on
Form S-8 to be filed on or about May 13, 1997. Pursuant to Rule 436(c) under
the Securities Act of 1933, this report should not be considered a part of
the registration statement prepared or certified by us within the meaning of
Sections 7 and 11 of that Act.
/s/ Coopers & Lybrand L.L.P.
Boston MA
May 13, 1997
Page 10
<PAGE>
Exhibit 23.1
Consent of Independent Accountants
Consent of Independent Accountants
We consent to the incorporation by reference in this registration statement
on Form S-8 of our report, dated February 18, 1997, on our audits of the
consolidated financial statements of Vertex Pharmaceuticals Incorporated.
Coopers and Lybrand L.L.P.
Boston MA
May 13, 1997
Page 11
