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Exhibit 5.1
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
One Financial Center
Boston, Massachusetts 02111
617 542 6000
617 542 2241 FAX
January 17, 2001
Vertex Pharmaceuticals Incorporated
130 Waverly Street
Cambridge, MA 02139-4211
Ladies and Gentlemen:
We have acted as your legal counsel in connection with the preparation
and filing with the Securities and Exchange Commission (the "Commission") of
a Registration Statement on Form S-3 (the "Registration Statement"), pursuant
to which Vertex Pharmaceuticals Incorporated, a Massachusetts corporation
(the "Company"), is registering under the Securities Act of 1933, as amended,
(i) $345,000,000 aggregate principal amount of the Company's 5% Convertible
Subordinated Notes due September 19, 2007 (the "Notes"); (ii) 3,739,432
shares of the Company's common stock, $.01 par value per share, and an
additional undeterminable number of shares as may be required for issuance
upon conversion of the Notes for resale to the public (the "Shares"); and
(iii) rights to purchase Series A Junior Participating Preferred Stock, $.01
par value per share (the "Rights"). The Notes, Shares and Rights, if and when
sold, will be sold by certain security holders of the Company. This opinion
is being rendered in connection with the filing of the Registration
Statement. All capitalized terms used herein shall have the respective
meanings given to them in the Registration Statement.
We have examined the Registration Statement, the Restated Articles of
Organization of the Company, as amended to date, and such other documents and
records of the Company as we have deemed necessary for purposes of this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, 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.
The opinions expressed in this letter are limited to the laws of the
Commonwealth of Massachusetts (including the applicable provisions of the
Massachusetts Constitution and the reported judicial decisions interpreting
the laws) and the federal laws of the United States of America. We are not
opining on, and we assume no responsibility with respect to, the
applicability to or effect on any of the matters covered herein of the laws
of any other jurisdiction. To the extent that any other laws govern the
matters as to which we are opining herein, we have assumed that such laws are
identical to the state laws of the Commonwealth of Massachusetts, and we are
expressing no opinion herein as to whether such assumption is reasonable or
correct. We note in this regard that the Notes state that they are to be
governed by the laws of the State of New York. Except as expressly set forth
in this letter, we are also not opining on specialized laws that are not
customarily covered in opinion letters of this kind, such as tax, insolvency,
antitrust, pension, employee benefit, environmental,
BOSTON NEW YORK RESTON WASHINGTON NEW HAVEN
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MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
Vertex Pharmaceuticals Incorporated
January 17, 2001
Page 2
intellectual property, banking, insurance, labor, health and safety laws. No
opinion is expressed herein with respect to the qualification of the Notes,
Shares and Rights under the securities or blue sky laws of any state or any
foreign jurisdiction.
Our opinions contained in paragraph (i) below as to enforceability is
subject to the further qualification that such enforceability may be (1)
limited by bankruptcy, insolvency (including, without limitation, fraudulent
conveyances and fraudulent transfers), reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, (2)
limited by general equitable principles, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), (3) subject to the effect of any public policy
considerations or court decisions which may limit the rights of any person or
entity to obtain indemnification, and (4) subject to the effects of generally
applicable rules of law that (A) limit or affect the enforcement of
provisions that purport to require waiver of the obligations of good faith,
fair dealing, diligence and reasonableness or (B) provide that forum
selection clauses are not necessarily binding on the court or courts in the
forum selected.
Based on the foregoing, and subject to the foregoing and the additional
qualifications and other matters set forth below, it is our opinion that:
(i) The Notes have been duly and validly authorized and issued and are
binding obligations of the Company; and
(ii) The Shares have been duly and validly authorized and, when issued
upon conversion of the Notes in accordance with the terms of such Notes, will be
validly issued, fully paid and non-assessable.
We are furnishing this letter to you solely in connection with the offer
and sale of the Notes, Shares or Rights while the Registration Statement is in
effect. You may not rely on this letter in any other connection, and it may not
be furnished to or relied upon by any other person for any purpose, without our
specific prior written consent.
The foregoing opinions are rendered as of the date of this letter, except
as otherwise indicated. We assume no obligation to update or supplement any of
such opinions to reflect any changes of law or fact that may occur.
We hereby consent to the reference to this firm under the heading "Legal
Matters" in the Prospectus which is part of the Registration Statement and to
the filing of this opinion as an Exhibit to the Registration Statement.
Sincerely,
/s/ Mintz, Levin, Cohn, Ferris
Glovsky and Popeo, PC
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Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, PC
